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David is an Associate Solicitor in the firm’s Litigation team. The Team covers all aspects of civil litigation including employment lawpersonal injury, negligence and commercial litigation. Read David's full bio here. 

Constructive Dismissal

What is Constructive Dismissal?

An employee is entitled to pursue a claim for constructive dismissal if they resign from their employment as a direct result of a fundamental breach of contract by their employer. Such a breach of contract can occur in two main ways.

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Abolition of Employment Tribunal Fees

The introduction of Employment Tribunal fees in July 2013 was a highly controversial decision at the time. The Government and those in favour of the fees argued that the fees would help fund the system and would discourage vexatious and frivolous claims. Those against the fees argued that it would deter those with legitimate claims from pursuing them and so would prevent access to justice. They also argued that the fees were disproportionate.

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Trade Union Act 2016

The much anticipated and highly controversial Trade Union Act 2016 came fully into force on 1st March 2017. Some of the provisions of the Act were already in place. During passage through Parliament, the initial Trade Union Bill was revised following intense criticism by opposing MPs, Peers and especially the Trade Union movement. The Government made a number of concessions such as abandoning its initial plan to have a ban on check-off in the public sector. The role of the Certification Officer (a type of Regulator for Trade Unions) was also revised.

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When is a resignation a resignation? Did Mark Warburton ‘resign’ from Rangers?

Once again, employment law is in the news  following the resignation of Mark Warburton from Rangers. There was initially some confusion regarding events, with Warburton and his team adamant they had not resigned from their position.

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Employment Status – when are you an employee or independent contractor?

Employment status is a subject that has been in the news recently following the much publicised decision in the case of Mr Yaseen Aslam and Mr James Farrar v UBER. In the UBER case, it was held that the individuals were workers and therefore were entitled to certain benefits. The Employment Judge was less than complimentary about the practices of UBER. That being said, UBER have announced that the decision is subject of appeal with a hearing likely to be fixed in the next few months.

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Employment Status – what the law says

Legal definition

Whether or not an individual is an “employee” is generally determined by reference to the contract under which he or she works.  The Employment Rights Act 1996 Section 230(1) defines an employee as:-

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UBER Driver Case – UBER decide to appeal

Following on from the previous blog UBER Driver Case – Tribunal finds that they are “workers” on 28th October, UBER have announced that they will appeal against the decision of the Employment Tribunal to the Employment Appeal Tribunal. The Employment Tribunal found in favour of the Claimants that they were workers and so entitled to certain employment rights in contrast to UBER’s position that the drivers were self-employed.

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The season of goodwill… (Well usually) Vicarious Liability of employers and Christmas parties

As we approach Christmas, the talk of many offices will be the upcoming Christmas party. Doing your best to ensure that no colleagues turns up with the same outfit are just one of the many factors that employees need to think about and carefully plan. More often than not, employers will simply be happy (and perhaps more likely relieved) if the party passes off with nothing more than a few sore heads the next day and a fairly modest bar bill. While colleagues will tend to work side by side without incident every other day of the year, add in a little (or a lot) of alcohol and the Christmas night out can be a disaster waiting to happen.

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UBER Driver Case – Tribunal finds that they are “workers”

The Employment Tribunal has issued its Judgment in the much awaited case involving the companies behind the Uber app and two drivers. Uber was developed and released in 2010 as a mobile phone app which has over 40,000 taxi drivers signed up, with 30,000 of these being in London alone. The app allows passengers to easily locate and book available taxi drivers without the need to go to a registered rank or calling a dispatch office. Payment is made by credit or debit card based on the distance and time travelling. It is seen as the stress free way of booking a taxi.

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Supermarket Equal Pay Claims

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On Friday 14th October 2016, the Employment Tribunal in Manchester handed down its Judgment following the Preliminary Hearing of 7,000 Asda workers who have been fighting an equal pay claim against the supermarket. The claims were originally brought in 2008 and the recent Judgment is a significant victory for the workers.

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Christian bakers lose appeal as Appeal Court upholds discrimination claim

The Northern Ireland Court of Appeal had handed down its decision in the much publicised Gay Cake case, more accurate known as Lee v McArthur, McArthur and Ashers Baking Company Ltd. The Court upheld the previous decision of the County Court ruling that Mr Lee was discriminated against after the bakers’ refusal to bake a cake that included the slogan “Support gay marriage”.

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Proposal for Exemption from Health and Safety Requirements for Self-Employed

The Health and Safety Executive (HSE) is inviting views on the proposed definitions of those self-employed people who will continue to have duties under health and safety law.

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Does your business have an internet and social media policy?

The Internet is now an essential aspect of almost every business but in legal terms, it creates significant risks, not least because it is so fast moving and so difficult for a business owner to control, in terms of legal and business risk. The internet also presents challenges because the law is struggling to keep up and due to the fact that it can be virtually impossible to determine, in the case of e-commerce transactions with an entity based abroad, which jurisdictional laws would apply in the event of a dispute.

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Should your business have an Employee Handbook?

An employee handbook is an important document as it should provide clear guidance on how you want your business to operate. The policies and procedures in the handbook will help with employee relations, which in turn improves productivity and efficiency.

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Do your staff use personal devices at work?

The Information Commissioner’s Office (“ICO”) recently issued guidance urging employers to introduce a clear policy on staff using personal devices for work.

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Buying a business: share purchase agreements

The Court of Appeal has held that clauses in a share purchase agreement providing that, in the event of a breach of the seller's restrictive covenants, the buyer's obligation to pay deferred consideration would cease and the buyer would be entitled to acquire the remainder of the seller's shares at a price based on net asset value (and excluding goodwill), were unenforceable penalties.

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IPO issues practice notice on relevance of colour to black and white marks used in colour

The UK Intellectual Property Office (IPO) has issued a Tribunal Practice Notice confirming that, where a trade mark registered in black and white form has been extensively used in a particular colour or colours, the court can take this into account when it is considering issues of likelihood of confusion, detriment and unfair advantage. It also says that in infringement proceedings, it may be relevant that the later mark has been used in particular colours. The same principle applies in opposition and cancellation proceedings. The clarification of practice arises from the ECJ's judgment in Specsavers v Asda (Case C-252/12).

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Response to Business Names Regulations consultation published

At the beginning of 2013, the UK Government (“Government”) launched a consultation seeking views on the future of The Company and Business Names (Miscellaneous Provisions) Regulations 2009 (“Regulations”). Its aim was to identify opportunities to improve and simplify the current system. The Government’s response to the consultation was published in December.

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Rights of Workers to be Accompanied at Disciplinary/Grievance procedures

The right of workers to be accompanied by a companion chosen by the worker, not the employer, has been reinforced by a recent decision by the Employment Appeals Tribunal in the case of Roberts v GB Oils.
In terms of the Employment Rights Act 1999 s10(1) and(2), a worker can “reasonably request” to be accompanied at a disciplinary or grievance hearing by a companion “chosen by the worker” and satisfying the criteria set out in s10(3). Under s10(3) a worker is entitled to choose to be accompanied by either a Trade Union official who is employed by the TU, or by a TU official not employed by the TU but certified in writing as having relevant experience for these hearings, or by a colleague of the worker.
In Roberts, the employers were held by the EAT to have breached s10 by refusing the worker his choice of s10(3) companion. The employers had argued that they had been entitled to refuse the original companion chosen by the worker in his request to be accompanied, on the basis that the worker’s choice of companion made the request an unreasonable one under s10(1)(b).
The EAT on both cases, however held that an employer cannot use s10(1)(b) to refuse a request as unreasonable simply because the employer does not like the worker’s choice of companion. It held that the worker has freedom of choice of requested companion, as long as the companion satisfies one of the three criteria set out in s10(3). In other words, the issue of overall reasonableness or otherwise of the request to be accompanied (s10(1)(b)) does not involve consideration of the worker’s choice of companion under s10(3).
This is important protection of the worker’s right to choose is companion. It should be noted, however, that if worker deliberately chose a valid but nonetheless clearly unreasonable companion, while he would still technically win a tribunal claim under s10 if this request was refused, the tribunal could reduce the (max 2 weeks’ pay) award to nil on equitable grounds.

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Employment law changes – 2014

2014 will see a number of changes to employment law in Britain. The dates for some of the changes have yet to be confirmed although most of the changes are expected to happen around the traditional date of early April.

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