Whistleblowing time limits: one off acts vs continuing acts – 3PB

Posted November 12th, 2020 in contract of employment, news, time limits, unfair dismissal, whistleblowers by sally

‘Ikejiaku reinforces the distinction between a one-off act and a continuing act in the context of the imposition of a new contract, highlighting that this was a one off act with continuing consequences. Although the case concerned time limits in a whistleblowing detriment claim, the principles will extend across other areas, such as discrimination, in which unlawful detriments form the basis for claims.’

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3PB, 8th October, 2020

Source: www.3pb.co.uk

Furlough and administration: when is a contract of employment ‘adopted’? – Exchange Chambers

‘The Coronavirus Job Retention Scheme (the scheme) has been ground breaking for employers, employees and administrators of insolvent companies, each of whom have swiftly adjusted to the practical and commercial effects of the scheme. The scheme very quickly gave rise to applications to the High Court, by administrators of high-profile companies, for directions as to whether a contract of employment of a “furloughed employee” had been “adopted” by an administrator. If it was, the “wages or salary” (which are defined by paragraph 99(6) of schedule B1 of the Insolvency Act 1986 (the Act) to include holiday pay and sick pay) would have super-priority over (a) the administrators’ remuneration and (b) a floating charge, under paragraph 99(3) and (4) of schedule B1 of the Act.’

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Exchange Chambers, 13th October 2020

Source: www.exchangechambers.co.uk

Tribunal awards 10 UK homecare workers £10,000 each in back pay – The Guardian

‘Ruling says travel and waiting time between cases should be treated as working time.’

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The Guardian, 15th September 2020

Source: www.theguardian.com

Re Debenhams Retail: do the wages of furloughed employees enjoy super priority in an insolvency? – Hardwicke Chambers

‘The Appellants were the Joint Administrators of Debenhams Retail Ltd (“the Company”), which had entered into administration on 9 April 2020. This had followed decisions in late March to place some 14,000 of its employees on furlough under the Government’s Coronavirus Job Retention Scheme (“the Scheme”).’

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Hardwicke Chambers, 11th August 2020

Source: hardwicke.co.uk

Worker Status Sent Spinning: Case summary of Varnish v British Cycling – 3PB

‘Ms Varnish (the Claimant) is a talented cyclist. She holds world records for track cycling and has won medals at the European Championships, World Cup and Commonwealth Games. She entered into an “Athlete Agreements” with British Cycling (the Respondent). This agreement expressly stated that it was not a contract of employment, that the Respondent would develop an Individual Rider Plan and provide the Claimant with support required, and that the Claimant would, among other things, train to the best of her abilities. The agreement provided for suspension and termination by the Respondent in certain circumstances.’

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3PB, 3rd August 2020

Source: www.3pb.co.uk

Uber BV v Aslam – Old Square Chambers

‘In this case the drivers argue Uber is a transportation company for whom they provide services as “workers”. Uber disagrees, arguing it is a technology services provider acting as an agent for drivers in their business relationship with passengers. The question for the Court is whether the drivers are “workers” for the purposes of s.230(3)(b) of the Employment Rights Act 1996, s.54(3)(b) of the National Minimum Wage Act 1998 and reg.2(1) of the Working Time Regulations 1998. If this threshold is passed, a further issue is when the drivers are workers. Possible options include: (1) from the collection of the passenger until the driver reaches the passenger’s destination, (2) from the moment a booking is accepted until the passenger is dropped off, (3) any time when the driver is in the relevant territory with the Uber app switched on. This case is important as it provides an opportunity for the Supreme Court to provide guidance on the interpretation of Autoclenz v Belcher [2011] UKSC 41 and the correct approach to when it is permissible to disregard written contractual terms in an employment context.’

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Old Square Chambers, 21st July 2020

Source: www.oldsquare.co.uk

Equal Pay, Parental Rights, Personal Beliefs and Protest Movements – a review of recent developments in the areas of sport and employment law – Littleton Chambers

‘Across the board people have been reassessing how the traditional views of what it means to be an “employee” fit within our modern world.’

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Littleton Chambers, 21st July 2020

Source: littletonchambers.com

Have sports stars been caught out by Corona – Church Court Chambers

Posted July 28th, 2020 in contract of employment, coronavirus, news, remuneration by sally

‘It is not just in the worlds of finance and commerce where the effects of the global Corona Virus pandemic are currently being felt. The sporting world is also suffering at the hands of this novel virus. And many clubs are doing anything to make savings. But will that be enough? As has been publicised this weekend, Wigan Athletic Football Club have called in the administrators as a result of their financial woes. Seven years after winning the FA Cup, their fall from those dizzy heights has reached a new low.’

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Church Court Chambers, July 2020

Source: churchcourtchambers.co.uk

Uber v Heller and the Prospects for a Transnational Judicial Dialogue on the Gig Economy – II – Oxford Human Rights Hub

‘In the coming days, labour lawyers from around the world will be tuning in to watch the arguments in Uber v Aslam. In terms of the wider ramifications of the reasoning in Heller, what are the prospects for the ‘contractual’ and the “constitutional” approaches in Aslam? As already noted, the wider doctrine of unconscionability in Heller is unlikely to find favour in the English courts. More importantly, disputes about the employment contract in English courts are rarely about the contract rights themselves. The (private) contract is a gateway into a suite of (public) statutory employment protections. It would make little sense for a worker to seek to set aside the contract by using unconscionability as a vitiating factor, when the statutory protections depend upon the contract being valid and enforceable. This limits the practical relevance of Heller’s expanded unconscionability doctrine, given the statutory context to most employment litigation in the UK.’

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Oxford Human Rights Hub, 20th July 2020

Source: ohrh.law.ox.ac.uk

Uber v Heller and the Prospects for a Transnational Judicial Dialogue on the Gig Economy – I – Oxford Human Rights Hub

‘Across the world, Gig employers are now facing a legal reckoning in the highest courts. On 21st July, the issue of whether Uber drivers are “workers” will be considered by a seven-member panel of the UK Supreme Court. This follows on from Mr Heller’s momentous victory in a recent decision of the Supreme Court of Canada (SCC) in Uber Technologies Inc. v. Heller which involved a legal challenge to a mandatory arbitration clause in a contract between Uber and an UberEATS driver. The arbitration clause required disputes to be referred to arbitration in Amsterdam, which would be subject to the law of the Netherlands. The clause also required the payment of US $14,500 as an upfront administrative cost. The appellant earned $20,800–$31,200 per year before taxes and expenses were deducted. Nor did the fee include other costs likely to be incurred in an arbitration, such as travel to Amsterdam, accommodation, and legal representation. Students of transnational labour law of a certain generation cut their teeth on great debates about “offshoring” and the disintegrative risks to labour standards posed by capital mobility. The Heller case is an important reminder that we are now in an era of juridical mobility: employing entities seek to escape national labour law systems without the cost and inconvenience of spatial mobility.’

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Oxford Human Rights Hub, 19th July 2020

Source: ohrh.law.ox.ac.uk

Insolvency in the English Football League: impact on players and staff – Littleton Chambers

Posted June 11th, 2020 in contract of employment, coronavirus, debts, insolvency, news, remuneration, sport by sally

‘In relation to the EFL, there have been dire warnings that in the absence of a substantially increased contribution from the Premier League, up to 60 clubs could go out of business.’

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Littleton Chambers, 2nd June 2020

Source: littletonchambers.com

Knowledge test for duty of confidence – what is a sufficient state of mind to make an employer liable for breach of confidence when it receives a client list from a recruited employee? – Employment Blog

Posted June 11th, 2020 in confidentiality, contract of employment, EC law, employment, news by sally

‘In the recent case of Trailfinders v Travel Counsellors & Ors [2020] EWHC 591 (IPEC) the court reiterated that the test was not subjective: the recipient of the client list did not have to know the information was confidential. It was objective: in equity the recipient is under a duty of confidence whenever he ought to know that the information received is fairly and reasonably to be regarded as confidential, irrespective of his actual state of mind. Further, this was now also the statutory position because under Art. 4 (4) of Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition: “The acquisition, use or disclosure of a trade secret shall also be considered unlawful whenever a person, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of paragraph 3.”’

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Employment Blog, 9th June 2020

Source: employment11kbw.com

Revenue and Customs v Professional Game Match Officials Ltd – Old Square Chambers

‘The Upper Tribunal (Tax and Chancery Chamber) recently held in Revenue and Customs v Professional Game Match Officials Ltd that part-time football referees are independent contractors (rather than employees, whose match fees and other payments are subject to PAYE).’

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Old Square Chambers, 1st June 2020

Source: www.oldsquare.co.uk

Employment status: Revenue v Customs Commissioners v Professional Game Match Officials Ltd [2020] 5 WLUK 118 – 3PB

‘Professional Game Match Officials Limited (“PGMOL”) is a company whose 3 members are The Football Association Ltd (“the FA”), The Football Association Premier League Ltd (“the Premier League”) and the Football League Ltd (“the Football League”), now referred to as the English Football League (“the EFL”).’

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3PB, 2nd June 2020

Source: www.3pb.co.uk

Post-termination Restrictive Covenants & Constructive Dismissal – Square Global Limited v Leonard [2020] EWHC 1008 (QB) – 3PB

‘Mr Leonard was recruited as a Broker by Square Global Limited (“Square”) in February 2015. He resigned summarily on 11 November 2019. For around seven months prior to his resignation, Mr Leonard had been in discussions with a rival financial services business, Market Securities, about leaving Square and joining them instead.’

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3PB, 2nd June 2020

Source: www.3pb.co.uk

Changing contractual terms (or not!) in a TUPE Transfer – Ferguson and ors v Astrea Asset Management Ltd [2020] UKEAT0139/19 – 3PB

‘This was EAT decision involving 4 individuals – Mr F, Mr K, Mr L and Mr P. They were all directors of Lancer; Mr F and Mr K were employees of that company, and Mr L and Mr P were employed by companies which contracted their services to Lancer.’

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3PB, 2nd June 2020

Source: www.3pb.co.uk

Changes to terms and conditions; Individual and Collective Redundancy Consultation – 3PB

‘With employees starting to return to work (be that on a part-time basis or otherwise) and employers continuing to assess the viability of their businesses as going concerns, how might employers make changes to an employees’ contractual terms lawfully in order to avoid redundancies, for instance agreeing a reduction in wages?’

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3PB, 2nd June 2020

Source: www.3pb.co.uk

Guidance on making staff take holiday during the Coronavirus outbreak – Cloisters

Posted June 2nd, 2020 in contract of employment, coronavirus, EC law, holidays, news, working time by sally

‘In this article, Declan O’Dempsey considers the implications of the Guidance issued by the government on 13 May 2020 on holiday entitlement and pay during coronavirus (Covid-19) and urges employers to use considerable caution in seeking to follow the Guidance ordering workers to take annual leave on dates specified by the employer. Employers who choose to order staff to take holidays on specific dates within the Coronavirus outbreak shut down may face contractual or tribunal claims later. Further, the legal uncertainty may mean that they will face claims for penalising those who assert a right to take annual leave at a non-Covid 19 affected time or who refuse to take the leave as annual leave.’

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Cloisters, 19th May 2020

Source: www.cloisters.com

The Implied Term of Trust and Confidence and the Coronavirus Job Retention Scheme: a Reply – Old Square Chambers

‘On 14 April 2020, our colleague Stuart Brittenden published an article arguing that the implied term of mutual trust and confidence (“the implied term”) requires employers to make use of the Coronavirus Job Retention Scheme (“CJRS”) for agency workers, zero-hour contract workers, and employees, generally.’

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Old Square Chambers, 19th May 2020

Source: www.oldsquare.co.uk

Covid 19 Employment Law Series: Coronavirus Job Retention Scheme Direction: Where are we now? – Parklane Plowden Chambers

Posted May 29th, 2020 in contract of employment, coronavirus, news, remuneration by sally

‘With its publication on Friday 22 May 2020, immediately before the bank holiday weekend, you can be forgiven for having missed HMRC’s revised Coronavirus Job Retention Scheme (“CJRS”) Direction, dated 20 May 2020 (“the Direction”). All claims for payment under the CJRS, made after 22 May 2020, must comply with the Direction. The Direction modifies the previous version dated 15 April 2020 and clarifies many, but not all, of the questions that arose therein.’

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Parklane Plowden Chambers, 27th May 2020

Source: www.parklaneplowden.co.uk