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Employment Law Journal: October 2011

Sarah Young analyses a recent case on whether a worker knew he was not entitled to claim self-employed status

The Employment Appeal Tribunal (EAT) has recently clarified when claims may be barred on illegality grounds and, in particular, what the Court of Appeal meant by ‘misrepresentation’ in Enfield Technical Services Ltd v Payne [2008].

Andrew Burns asks whether the courts will be able to stop public sector workers going on a general strike in protest at government cuts

The news in 2010 was often dominated by strikes across parts of the transport industry. Cabin crew opposed cuts by British Airways during the global downturn, the RMT union called for action on the London Underground and various railways, while tanker drivers threatened action over terms and conditions. As the autumn and winter of 2011 approaches, the political agenda is topped by cuts to public services and pensions and the resulting threat of industrial action by civil servants and other public sector workers. A day of action has already been taken by some teachers and Public and Commercial Services union members, but there is now talk of coordinating a form of general strike across the public sector in protest against the government’s policy.


As the unions gear up for a fight over changes to public sector pensions, David Gallagher and Peter Holt suggest a new strategy for employers to challenge the legality of planned strike action

One of the coalition government’s first moves when it came to power in May 2010, was to commission the Hutton Report on Public Sector Pensions. The Commission was chaired by Lord Hutton of Furness who, as John Hutton, had been one of the Labour government’s secretaries of state for work and pensions.

Matthew Ramsey and Jenny Steer consider how employers should respond if an employee is arrested or charged with an offence by the police

The August riots across England led to the arrest of over 3,000 people, including health workers, a primary school teaching assistant and shop workers. Their employers will have faced the difficult questions of whether their criminal behaviour warranted disciplinary action and how the employee’s arrest, charge or conviction affected the decision to take action or not. In grappling with those issues, the employee’s seniority, the publicity around their involvement, the degree of proof and the underlying law of unfair dismissal all need to be weighed in the balance.

Stephen Ratcliffe and Colin Leckey examine the impact of a recent Supreme Court decision about when courts and tribunals should disregard express written contractual terms

The Supreme Court in Autoclenz Ltd v Belcher & ors [2011] has addressed the controversial issue of tribunals ignoring written contractual terms where they do not represent the reality of the relationship between the parties. On the face of it, the decision represents a welcome clarification of the approach to be taken to interpreting contracts that appear to be designed to avoid employment status. However, some commentators have suggested that its impact is far wider, potentially entitling employees to challenge any contract term that they consider does not represent the truth of the parties’ obligations. Any such impact would be of significant concern to employers and their advisers, as it would undermine the apparent certainty provided by asking employees and workers to sign written terms.

Anne Sammon looks at the latest moves aimed at increasing the number of women in senior positions in UK and European companies

In February, Lord Davies published his report, ‘Women on Boards’ (the Davies Report), setting out his recommendations on how to increase female participation on corporate boards. This suggested that, rather than setting quotas, listed companies should have targets for the numbers of women on their boards. While this may have reassured employers who were concerned about the imposition of quotas, recent actions at a European level suggest that, unless there is a significant increase in the number of women at board level, quotas may be forced onto them through European legislation.

A recent EAT ruling means that the repealed statutory retirement procedures could come back to bite employers, warn Michael Cole and Charlotte Stafford

In the diary of most employers, 5 April 2011 was a significant date as it marked the final deadline for validly serving notice of intention to retire employees compulsorily. Retirement notices served after that date are invalid following the government’s well publicised phasing out of the default retirement age. Now that the mad dash to serve notices of retirement on or before 5 April 2011 is over, employers will have breathed a collective sigh of relief, believing that they have fulfilled all their legal obligations.

The presence of a person on an employer’s grievance hearing panel who was perceived to be biased could amount to a fundamental breach of contract and give rise to a constructive unfair dismissal, explains David Ludlow

Employment lawyers are used to advising employers on the need to avoid the appearance of bias when deciding who should sit on disciplinary panels in cases of alleged misconduct. It is well established that the essential elements of the rules of natural justice are the right of the accused to state a case and to be subject to an unbiased tribunal.