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Employment Law Journal: September 2014

Jillian Naylor and Michal Stein analyse the government’s response to its call for evidence on the whistleblowing regime

In 2013/14, the employment tribunals received over 2,200 whistleblowing-related claims, with the most controversial cases being pored over in the press. Moreover, whistleblowing reports to the Financial Conduct Authority (FCA) increased by 35% during 2013. Against this backdrop, the government recently published its response to its whistleblowing framework call for evidence, which acknowledged that the legal framework does not always fulfil its aim of preventing malpractice. Few measures are, however, to be introduced as a result of the government’s review, which has led Public Concern at Work (the whistleblowing charity) to describe the response as ‘a missed opportunity’ that leaves ‘some gaping holes in the law’.

Richie Alder and Anna Scott examine the advocate general’s controversial Opinion in Kaltoft

Obesity and whether or not it amounts to a disability has been grabbing the headlines recently following the advocate general’s Opinion in FOA, acting on behalf of Karsten Kaltoft v Billund Kommune [2014]. While the advocate general has found that ‘extreme, severe or morbid’ obesity may be a disability if it has reached such a degree that it plainly hinders participation in professional life, the question still has no definitive answer.

Nicola Bartholomew and Heather Barc consider two recent cases on penalty clauses in the employment context

Employers can invest a significant amount of time and money recruiting and training the right employee with the requisite skills to fulfil a particular role. As a result, they often seek to protect themselves against the loss they may suffer if an employee leaves before they can find a suitable replacement or before they have received the benefit of the employee’s specific training. The law prevents unlawful deductions from wages, so employers often seek to set out in an employee’s contract of employment particular situations in which they will be permitted to recover specified amounts by way of a deduction, typically from a final payment of wages. However, in drafting those provisions, employers and their advisers must consider the law on penalty clauses and assess what the deduction is designed to achieve. Otherwise, the provision may be struck out as an unenforceable penalty clause when a former employee objects to a deduction from their salary.

David von Hagen and Louise Lawrence of Winckworth Sherwood discuss recent decisions on restrictive covenants and their implications

A series of recent High Court decisions about the interpretation and enforceability of restrictive covenants and garden leave has been distinctly pro-employer, with a clear trend towards holding employees to such covenants, including restrictions of a long duration. One of these cases, Prophet plc v Huggett [2014], has now been overturned by the Court of Appeal but this was because the covenant contained a drafting error, not because the 12-month restriction was held to be too long.

Nick Jew takes a look at the government’s proposals to tighten up the rules on industrial action ballots

The summer of 2014 may well be remembered as the trigger for a potentially seismic shift in the UK government’s approach to industrial action. On 10 July, an estimated one million public sector workers went on strike, bringing significant disruption to public services. Around one fifth of the UK’s schools were forced to close and council services, courts, job centres and airports were among the services affected.

Paul Strelitz gives advice on how to help employees suffering from stress and mental illness

In 2006 it was estimated that 35% of all GP consultations involved a mental health problem and by 2011 stress had become the most common cause of long-term sickness absence for both manual and non-manual workers. If these figures are not reason enough for employers to address their employees’ mental health issues, there are plenty more statistics that may convince them: