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Employment Law Journal: October 2013

Susie Al-Qassab analyses recent case law and other developments affecting businesses that have significant numbers of non-employees in their workforce

This article is a round up of recent decisions and developments on working arrangements and employment status. It is clear from this review that there remains a commercial need for, and governmental and judicial support for, flexibility in the workforce. So the outlook is generally positive for non-employment arrangements. Different businesses and individuals should be able to structure their working arrangements in different ways, to enable success and drive productivity and profitability. There is no ‘one size fits all’ approach.

Intern Aware

Gus Baker investigates what rights interns have at work and how they are being enforced

In March this year, Chris Jarvis, a computer games graduate, filed a claim in the Bury St Edmunds Employment Tribunal against Sony Computer Electronics Europe Ltd. He claimed that he was entitled to be paid the national minimum wage for the 60 days he had worked for the company as an unpaid intern. Sony actively resisted the claim, arguing that Mr Jarvis was a ‘volunteer’ with no contract and thus no right to be paid, even though he had done a substantial amount of work for it. However, with the aid of Leigh Day solicitors, Mr Jarvis was successful in winning a £4,600 settlement, without a confidentiality clause, as the date for the tribunal hearing approached.

Vanessa Hogan and Oliver Spratt consider the impact on employers of the information commissioner’s new Code of Practice

It is becoming increasingly frequent for employees to send their employer a data subject access request (DSAR) either in anticipation of, or during, a tribunal claim. Responding to DSARs can be notoriously time consuming and costly. Given the proposed abolition of discrimination questionnaires in April 2014, it seems likely that this trend will continue. In light of this change, and the publication last month by the Information Commissioner’s Office (ICO) of the Subject Access Request Code of Practice, this article will:

A recent decision has focused on when it is acceptable for employers to rely on secret filming when investigating suspected misconduct, reports Mark Kaye

The decision by an employer to put in place covert surveillance is an emotive one. It is likely to raise legal issues, such as the potential impact of data protection and privacy legislation, and may also affect the employer/employee dynamics throughout the organisation. In what circumstances is such an approach warranted?

Nick Dent and David Prior draw out the lessons for employers from recent case law on investigations into potential disciplinary matters

An investigation into an employee’s alleged misconduct at work will go to the heart of any subsequent unfair dismissal claim. It is not always clear how much investigation to undertake, however, and getting it right is not always easy. A couple of recent cases highlight the pitfalls involved in failing to investigate enough. The worst-case scenario is a finding of unfair dismissal but nearly as bad is a claim which, although ultimately successful, swallows up precious management time and costs to defend.

Gary Freer looks at two recent cases that have revisited the issue of when redundant employees have a legal right to additional benefits and when this is a matter for the employer’s discretion

In recent decisions, the Court of Appeal and Employment Appeal Tribunal (EAT) have modified the guidelines for tribunals on when, in the absence of express agreement, an enhanced redundancy payment policy becomes a contractual entitlement.

A recent case serves as a useful reminder to employment practitioners to be careful about how they phrase offers to settle employment disputes, warns Phil Allen

How careful are you in the way you word any settlement offer? If you are offering the heads of terms, but expect to flesh out the full detail of an agreement later, have you been clear enough? The High Court has delivered a stark warning to all those involved in settlement negotiations of the importance of what you say when you make an offer.

Jonathan Fenn and Clare Fletcher explore the importance of tailoring restrictive covenants to ensure employers maximise their chances of safeguarding confidential information and preventing competitive activities

Employees gain an in-depth knowledge of their employer’s business, including key customers, suppliers, technology, trade secrets and other confidential information. This knowledge can be used by a third party to harm the profitability and even threaten the viability of the business.