Nicola O’Dwyer

Nicola has built a track record of providing high quality advice and expertise to a broad range of employment law issues. She regularly works closely with clients to advise and guide them through complex areas of law (e.g. disciplinary issues and grievances), offering support at times when it’s most needed.

Nicola has built experience in the leisure sector, particularly; golf clubs, health clubs, pubs/restaurants and catering. She is able to advise clients in these areas on the typical issues they face, particularly on areas like; casual staff, employment status, TUPE and any consequential restructures/redundancies, TRONC systems etc.

Nicola also has strong links with specialist immigration advisers to ensure any issues faced with employing foreign nationals can be addressed quickly and efficiently.

Nicola is a member of the Employment Lawyers Association.

More articles from this author

The Menopause and the Workplace

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Employees and Breastfeeding

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Provision of Services and Disability Discrimination

Author: Nicola O'Dwyer

In FirstGroup PLC v Paulley, the Supreme Court considered the extent to which reasonable adjustments should have been made by a bus operator to accommodate a wheelchair user.

Work and The Menopause

Author: Nicola O'Dwyer

The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.

Fit for Work

Author: Nicola O'Dwyer

In December 2014, the Government launched the Fit for Work scheme (“FFW”). The scheme includes a website and telephone advice line. The opportunity for an occupational health referral will be in place by May 2015.

Unexpected Absence

Author: Nicola O'Dwyer

It is likely that there will be occasions when an employee fails to attend the workplace owing to circumstances beyond his/her control. This type of non attendance may be caused by the following:...

False Self Employment

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Shareholder Employees

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

Recent Changes in Employment Law

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

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More articles from this sector

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Unlawful Fees Help Employee Secure An Extension of Time

Author: Matthew Kilgannon

Background

It appears that, in the last few weeks the Southampton Employment Tribunal has agreed to grant a Claimant, an extension of time to bring her claims.

Employees and Breastfeeding

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Employment Status - The Uber Case

Author: Keith Potter

The employment tribunal’s decision in the case relating to the Uber taxi drivers was given in late October 2016 (Aslam and others v Uber BV and others). The drivers claimed that they were “workers” under employment legislation. If true, this meant that they were entitled (a) to the national minimum wage for hours worked, (b) to paid annual leave and (c) to protection against unlawful deductions from wages.

The Christmas Party - An Employer's Liability

Author: Matthew Kilgannon

Background

Christmas parties can be a hot bed issues for business owners and HR. With Christmas parties in full swing, the High Court has recently delivered a decision that provides a timely reminder of the extent of your liability at such events.

Brexit Impact on Employment Law

Author: Emily Kidd

As we begin the journey to move forward from the vote to leave the EU, we consider the implications for employment law of Brexit.

Employer's disciplinary investigation was not an invasion of privacy

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

How To Restrict The Activities of Former Employees

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Budget Update and Other Employment Law Changes 2016

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

How Effective Are Your Contracts of Employment?

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Employers Liable for Staff Who Drive at Work

Co-Authors: Matthew Kilgannon and Daniella Magennis

BACKGROUND

Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

Election 2015: What's In Store for Employment Law?

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

Existing Family-Friendly Employment Rights

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Landmark holiday pay case increases costs for employers

Author: Matthew Kilgannon

Overview

As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Employment Law - It's a funny old game!

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Settling Employment Disputes

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Why You Should Review Contracts of Employment

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

False Self Employment

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Shareholder Employees

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

Employment Law Reforms

There are three major changes to employment law which come into effect on 29 July 2013:

Who are “affected employees” for TUPE consultation purposes?

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

Promoting Employees - How Restrictive are Restrictive Covenants?

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

Recent Changes in Employment Law

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

Redundancy - EAT Decision Favours Employers

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

Employees protected by TUPE in administration cases

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

Good news for employers - new rules regarding unfair dismissal

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

EU Nationals and Family Members to come under UK Settlement Scheme

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

Does your business have a game plan in place for the start of the World Cup?

Even those who are not football fans will probably be aware that the Football World Cup competition starts in Russia on 14 June. ACAS have produced some guidance to assist employers in dealing with the issues that are always thrown up by tournaments of this kind.

GDPR – A Snapshot

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

Bridging the pay gap

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Turning the tables on Sexual Harassment

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Clarity on parity for agency workers

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Tribunal Fee Refund Scheme Opens

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

The Menopause and the Workplace

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Tribunal Fees To Be Refunded

Author: Emily Kidd

What are Employment Tribunals?

Most UK employment rights are enforceable through the Employment Tribunals. Employment Tribunals were originally set up so that the layperson could bring a claim in an informal setting which did not require them to have legal representation. Any legal costs were usually borne by each of the parties, unlike the civil courts where the losing party was usually ordered to pay both parties’ costs.

Immigration reform and workforce trends

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

EU Nationals and Family Members to come under UK Settlement Scheme

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

GDPR – A Snapshot

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Immigration reform and workforce trends

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

EU Nationals and Family Members to come under UK Settlement Scheme

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

GDPR – A Snapshot

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

Bridging the pay gap

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Turning the tables on Sexual Harassment

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Clarity on parity for agency workers

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Tribunal Fee Refund Scheme Opens

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

The Menopause and the Workplace

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Immigration reform and workforce trends

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

GDPR – A Snapshot

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

Bridging the pay gap

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Turning the tables on Sexual Harassment

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Clarity on parity for agency workers

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Tribunal Fee Refund Scheme Opens

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

Immigration reform and workforce trends

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

Downs Solicitors submits evidence to the Home Affairs Committee

The Home Affairs Committee has published Downs Solicitors’ submission to its inquiry on post-Brexit migration policy. The submission, drafted by Head of Immigration Samar Shams, makes suggestions relating to the future of work and the realities of corporate restructurings. Samar argues for appeal rights and gender equality, and the reduction of application fees. Samar also warns that mobility negotiations might lead to overly complex immigration rules and requirements.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

EU Nationals and Family Members to come under UK Settlement Scheme

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

For the technology sector, the Immigration Rules just got real

The Tech Nation (formerly Tech City) visa scheme has gradually become useful. The Tech Nation scheme falls under the Tier 1 (Exceptional Talent) visa category, for migrants with outstanding achievements or promise in their fields. During Tech Week , the Home Office published (another) Statement of Changes in the Immigration Rules. The changes take effect next month and include changes to the Tech Nation scheme which will be of interest to migrant techies.

GDPR – A Snapshot

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

Bridging the pay gap

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Turning the tables on Sexual Harassment

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Clarity on parity for agency workers

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Tribunal Fee Refund Scheme Opens

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

The Menopause and the Workplace

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

GDPR – A Snapshot

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Immigration reform and workforce trends

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

Downs Solicitors submits evidence to the Home Affairs Committee

The Home Affairs Committee has published Downs Solicitors’ submission to its inquiry on post-Brexit migration policy. The submission, drafted by Head of Immigration Samar Shams, makes suggestions relating to the future of work and the realities of corporate restructurings. Samar argues for appeal rights and gender equality, and the reduction of application fees. Samar also warns that mobility negotiations might lead to overly complex immigration rules and requirements.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

EU Nationals and Family Members to come under UK Settlement Scheme

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

For the technology sector, the Immigration Rules just got real

The Tech Nation (formerly Tech City) visa scheme has gradually become useful. The Tech Nation scheme falls under the Tier 1 (Exceptional Talent) visa category, for migrants with outstanding achievements or promise in their fields. During Tech Week , the Home Office published (another) Statement of Changes in the Immigration Rules. The changes take effect next month and include changes to the Tech Nation scheme which will be of interest to migrant techies.

Does your business have a game plan in place for the start of the World Cup?

Even those who are not football fans will probably be aware that the Football World Cup competition starts in Russia on 14 June. ACAS have produced some guidance to assist employers in dealing with the issues that are always thrown up by tournaments of this kind.

Bridging the pay gap

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

Turning the tables on Sexual Harassment

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Clarity on parity for agency workers

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Tribunal Fee Refund Scheme Opens

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

The Menopause and the Workplace

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Settlement Agreements and Winding Up

Author: David Seals

In Officeserve Technologies Limited (in liquidation) and another v Anthony-Mike, the High Court held that a settlement agreement entered into between a company and one of its directors during the period between a winding up petition being presented and the making of the winding up order was void.

Does the Acquired Rights Directive (ARD) apply to a pre-pack?

Author: David Seals

In Federatie Nederlanse Vakvereniging and others v Smallsteps BV (Case C-126/16), the European Court of Justice considered how the ARD applied to a pre-pack. The insolvent business consisted of 380 childcare centres employing 3,600 staff in Holland.

Unlawful Fees Help Employee Secure An Extension of Time

Author: Matthew Kilgannon

Background

It appears that, in the last few weeks the Southampton Employment Tribunal has agreed to grant a Claimant, an extension of time to bring her claims.

Secretary awarded £360,000 compensation for sexist comment at work

Author: David Seals

In BAE Systems (Operations) Limited –v- Konczak ("K") the Court of Appeal rejected the employer’s argument that an award of compensation of £360,178 in a discrimination claim was excessive.

Tribunal Fees To Be Refunded

Author: Emily Kidd

What are Employment Tribunals?

Most UK employment rights are enforceable through the Employment Tribunals. Employment Tribunals were originally set up so that the layperson could bring a claim in an informal setting which did not require them to have legal representation. Any legal costs were usually borne by each of the parties, unlike the civil courts where the losing party was usually ordered to pay both parties’ costs.

Data Protection: GDPR Guidance Updated

Author: Matthew Kilgannon

On 25 May 2018, the General Data Protection Regulation (GDPR) will replace the Data Protection Act. While the GDPR is a European Regulation, the UK Government has confirmed that the UK’s exit from the EU will not affect the commencement of the GDPR.

Long Term Sick Absence Dismissals: Avoiding the Pitfalls

Author: Keith Potter

For many employers dismissing an employee for long term sick absence is probably regarded as one of the more straightforward tasks. The relevant case law has been established for about 40 years and the basic principles are well understood.

FCA Fines Investment Banker for Sending Client Information Over WhatsApp

Author: David Seals

A well drafted contract of employment will normally contain a robust provision restricting the employee from disclosing the employer’s confidential information. But breaches of confidentiality do not regularly feature in employment cases that come before the Courts. There are various reasons why an employer may not pursue such matters. However, the position for employees in regulated sectors such as the banking industry who misuse confidential information is more fraught, as the case referred to below demonstrates.

Employees and Breastfeeding

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Provision of Services and Disability Discrimination

Author: Nicola O'Dwyer

In FirstGroup PLC v Paulley, the Supreme Court considered the extent to which reasonable adjustments should have been made by a bus operator to accommodate a wheelchair user.

Disciplinary Investigations

Author: Keith Potter

There is long-standing case law to the effect that, if a dismissal for misconduct is to be fair, the employer must investigate the facts thoroughly. It must then be able to show that it has reasonable grounds for concluding that the employee committed the misconduct of which he is accused and that the relevant misconduct is a sufficient reason for dismissing the employee. The employer’s decision must be shown to be within the range of reasonable responses – a principle which gives some latitude to employers.

Employment Status - The Uber Case

Author: Keith Potter

The employment tribunal’s decision in the case relating to the Uber taxi drivers was given in late October 2016 (Aslam and others v Uber BV and others). The drivers claimed that they were “workers” under employment legislation. If true, this meant that they were entitled (a) to the national minimum wage for hours worked, (b) to paid annual leave and (c) to protection against unlawful deductions from wages.

Rest Breaks

Author: Keith Potter

There has been conflicting case law on the subject of the right of workers to take rest breaks during the working day. The Working Time Regulations entitle a worker to an uninterrupted rest break of at least 20 minutes (or 30 minutes in the case of a worker less than 18 years’ old) where the working day exceeds 6 hours.

Termination Payments

Author: Keith Potter

In 2015 the government embarked on consultation about simplifying the tax treatment of termination payments, an area which has frequently given rise to dispute and uncertainty in the past. The government’s response to the consultation has now been published. The proposed changes will take effect in April 2018.

Holiday Pay

Historically, holiday pay was always calculated by reference to an employee’s basic pay. This principle was challenged in 2011 in a case involving various British Airways employees (Williams and others v British Airways plc), who successfully claimed that various allowances that they normally received in addition to their basic pay should be taken into account when calculating their rate of holiday pay. According to the Court, it was necessary to consider whether the additional allowances were intrinsically linked to the work which the employees were contracted to perform. The Court decided that there was a sufficiently close link and that the allowances should therefore form part of holiday pay.

The Christmas Party - An Employer's Liability

Author: Matthew Kilgannon

Background

Christmas parties can be a hot bed issues for business owners and HR. With Christmas parties in full swing, the High Court has recently delivered a decision that provides a timely reminder of the extent of your liability at such events.

Brexit Impact on Employment Law

Author: Emily Kidd

As we begin the journey to move forward from the vote to leave the EU, we consider the implications for employment law of Brexit.

Employer's disciplinary investigation was not an invasion of privacy

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

Suspension of Childcare Vouchers During Maternity Leave

Author: Daniella Magennis

INTRODUCTION

Many employers offer employees childcare vouchers under a salary sacrifice scheme. This allows employees to benefit from tax and national insurance savings.

Recruiting and Retaining Transgender Staff

Author: Daniella Magennis

On 26 November 2015, the Government Equalities Office issued guidance for employers on recruiting and retaining transgender employees. This new advice has been produced in collaboration with the UK’s leading inclusion and diversity experts, Inclusive Employers, who work with employers to achieve an inclusive culture in the workplace. Correspondingly, the recently published guide offers useful practical suggestions and ideas on how employers can implement new strategies in the running of their organisation to afford more consideration to transgender employee needs; thereby creating an ethos that engenders dignity to all workers, allows every member of staff to feel included and complies with the law.

How To Restrict The Activities of Former Employees

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Budget Update and Other Employment Law Changes 2016

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

How Effective Are Your Contracts of Employment?

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Social Media Misconduct – Relying on Stale Information

Author: Keith Potter

It is frequently said that an employer ought to act promptly when made aware of information which may involve a breach of a disciplinary rule, particularly in cases where the possible penalty is dismissal.

Dismissals and Inconsistency of Treatment

Author: Keith Potter

From time to time employers are faced with cases in which two or more employees have taken part in an instance of misconduct, often one involving violent or threatening behaviour. The employer may take the view that the conduct of one of the participants was more reprehensible than that of the other(s). Is the employer entitled to differentiate between the employees as regards the disciplinary sanctions that it imposes?

Disability Discrimination and References

Author: Keith Potter

A further illustration of the pitfalls associated with allegations of disability discrimination arises from a recent Employment Appeal Tribunal (EAT) case involving the giving of a written and verbal reference.

Employers Liable for Staff Who Drive at Work

Co-Authors: Matthew Kilgannon and Daniella Magennis

BACKGROUND

Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

How Safe is 'Safe-Harbour'?

On 6 October, the Court of Justice of the European Union (CJEU) issued its decision that has far reaching implications on businesses that transfer personal data to the United States. It held that the European Commission’s decision on 26 July 2000 that personal data can be transferred to the United States where organisations sign up to the ‘Safe-Harbour’ data protection principles, was invalid.

Unfair Dismissal where HR overstepped the mark

Author: David Seals

In the recent case of Ramphal –v- Department for Transport, the Employment Appeal Tribunal (“EAT”) held that a dismissal was potentially unfair where it had been too heavily influenced by the HR department. The case has serious implications on the limit to HR’s role in dismissal cases.

Work and The Menopause

Author: Nicola O'Dwyer

The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.

Dismissal of Christian for Homophobic Views was Discrimination

Author: David Seals

In the recent case of Mbuyi –v- Newpark Childcare (Shepherds Bush) Limited an employment tribunal found that a Christian nursery worker had been unlawfully discriminated against when she was dismissed for expressing negative views of homosexuality at work in relation to a colleague.

Election 2015: What's In Store for Employment Law?

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

"Public Interest" Test for Whistleblowing - An Easy One to Satisfy?

Author: David Seals

The Employment Appeal Tribunal (EAT) has made a decision which suggests that the “public interest” test for whistleblowing claims introduced two years ago will be a much easier one to satisfy than had been previously thought.

Injury to Feelings Awards Can Be Tax Free

Author: Matthew Kilgannon

The recent case of Timothy James Consulting v Wilton has provided some helpful guidance on a couple of important areas of law:

Shared Parental Leave

Author: David Seals

Shared Parental Leave (“SPL”) is a brand new employment right from April 2015 which allows working parents to share statutory leave and pay on the birth or adoption of a child.

Shared Parental Leave and Pay

Shared Parental Leave and Pay - the New Employment Right

Existing Family-Friendly Employment Rights

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Fit for Work

Author: Nicola O'Dwyer

In December 2014, the Government launched the Fit for Work scheme (“FFW”). The scheme includes a website and telephone advice line. The opportunity for an occupational health referral will be in place by May 2015.

Landmark holiday pay case increases costs for employers

Author: Matthew Kilgannon

Overview

As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Employment Law - It's a funny old game!

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Does Size Matter?

Author: Matthew Kilgannon

In Blackburn –v– Aldi Stores Limited the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to provide an impartial grievance process could amount to a breach of the implied term of trust and confidence, and form the basis of a constructive dismissal claim.

Settling Employment Disputes

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Why You Should Review Contracts of Employment

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

Unexpected Absence

Author: Nicola O'Dwyer

It is likely that there will be occasions when an employee fails to attend the workplace owing to circumstances beyond his/her control. This type of non attendance may be caused by the following:...

Unfair Dismissal Update

Author: Matthew Kilgannon

In 2013, we saw a number of changes to the rules relating to unfair dismissal, which includes:...

False Self Employment

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Zero Hours - Useful or Abused?

Author: Laura Marchington

Zero-hours contracts have been the subject of much debate over recent months. This includes a lot of press coverage where these types of arrangements have alleged to have been abused. Figures from research carried out by the Chartered Institute of Personnel and Development (CIPD) estimates that around 3% of the workforce are working on a zero-hours contract; that is, approximately one million people.

School Liable for Brain Damage?

Authors: SImone Horrobin and Matthew Kilgannon:

The recent Supreme Court decision of Woodland v Essex County Council highlights the exposure faced by Schools when engaging third parties to provide services. While the case involved a maintained School, the implications apply equally to independent Schools, indeed, part of the Court’s rationale included reference to fee-paying schools have greater exposure given the contractual nature of the relationship.

Confidential Discussions (Pre-Termination Negotiations)

As one of its many recent changes, the Government has now introduced a new right for employers, employees and their representatives to have confidential discussions regarding the termination of an individual’s employment.

Shareholder Employees

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

More Confusion over Calculating Holiday Pay

In Neal -v- Freightliner Limited an Employment Tribunal considered whether overtime pay should be included when calculating statutory holiday pay.

Employment Law Reforms

There are three major changes to employment law which come into effect on 29 July 2013:

Woolworths Administration: protective awards should have been paid to all staff

In USDAW –v- Ethel Austin Limited (in administration) & another case, the EAT has given its long awaited decision regarding protective awards under TULRCA. This involved the cases of employees of the Woolworths and Ethel Austin Stores, the former of which went into administration in November 2008.

Who are “affected employees” for TUPE consultation purposes?

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

Maximum Protective Award unfair where company faced insolvency

In AEI Cables Limited –v- GMB & others, the Emploument Appeal Tribunal (EAT) considered whether a maximum protective award under the Trade Union and Labour Relations (Consolidation) Act 1992 had been appropriate.

Dismissals by Administrator Were Unfair under TUPE

In Kavanagh and others v Crystal Palace FC (2000) Ltd the Employment Appeal Tribunal found that an employment tribunal had erred by finding that dismissals by an administrator were fair because they were for an ETO reason.

Claims to the NI Fund: Insolvency is a single event

In the Secretary of State for Business –v- McDonagh & others, the Employment Appeal Tribunal (“EAT”) had to consider when “insolvency” occurred under the Employment Rights Act 1996 (“ERA”) in respect of claims for arrears of pay and holiday pay from the National Insurance Fund (“NIF”).

More Flexibility For Parents - Are You Ready?

Towards the end of 2012, the Government announced its intention to allow more flexible and family friendly working practices.

Promoting Employees - How Restrictive are Restrictive Covenants?

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

Sickness and Annual Leave – Recent European Court of Justice Decision Blatantly Favours Workers

In the case of ANGED v FASGA, the European Court of Justice deliberated on whether a worker was able to take leave at a later date when it fell during a period of statutory leave.

Redundancy - One to Watch Out For

If there is a reduction in hours of work does it amount to a redundancy? This was the burning question before the Employment Appeals Tribunal in the case of Packman t/a Packman Lucas Associates v Fauchon.

Fidelity and Fiduciary Duties

In the recent case of Ranson v Customer Systems Plc the Court of Appeal set the parameters of when an employee owes his employer fiduciary and fidelity duties.

Enterprise and Regulatory Reform Bill

On Friday 2nd May 2012, the Queen announced the Government’s legislative agenda for the next year. The focus is introducing new measures to boost the UK economy. Two Bills were specifically mentioned: The Enterprise and Regulatory Reform Bill aimed at “creating the right conditions for economic recovery” and The Banking Reform Bill, which will “foster financial stability and a more resilient banking sector”.

Does TUPE Apply to Landlords After the Assignment of a Pub Lease?

A recent case in the Employment Appeal Tribunal (EAT) has stated that TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) does not apply to the assignment of a lease unless the economic entity retains its identity.

Recent Changes in Employment Law

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

Redundancy - EAT Decision Favours Employers

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

Employees protected by TUPE in administration cases

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

TUPE 2006 – BIS call for evidence

The BIS has issued a call for evidence seeking views on the effectiveness of TUPE 2006.

Good news for employers - new rules regarding unfair dismissal

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

Long Term Sickness

To help combat the level of sickness by employees, approximately 140 million days per year, the Government called for a major review of the sickness absence system in February 2011.

The Agency Workers Regulations 2010

The Regulations are intended to give effect to the Temporary Agency Workers Directive (the Directive) and they came into effect on 1 October 2011. The aim of the Directive is to provide basic working and employment conditions for assigned workers that are no less favourable than if they had been recruited directly by the hirer.

"Protected Conversations"

The Government has announced proposals that will cause the biggest shake-up of employment law for decades.

Immigration reform and workforce trends

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

Downs Solicitors submits evidence to the Home Affairs Committee

The Home Affairs Committee has published Downs Solicitors’ submission to its inquiry on post-Brexit migration policy. The submission, drafted by Head of Immigration Samar Shams, makes suggestions relating to the future of work and the realities of corporate restructurings. Samar argues for appeal rights and gender equality, and the reduction of application fees. Samar also warns that mobility negotiations might lead to overly complex immigration rules and requirements.

GDPR and Immigration: How to fulfil both

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

EU Nationals and Family Members to come under UK Settlement Scheme

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

For the technology sector, the Immigration Rules just got real

The Tech Nation (formerly Tech City) visa scheme has gradually become useful. The Tech Nation scheme falls under the Tier 1 (Exceptional Talent) visa category, for migrants with outstanding achievements or promise in their fields. During Tech Week , the Home Office published (another) Statement of Changes in the Immigration Rules. The changes take effect next month and include changes to the Tech Nation scheme which will be of interest to migrant techies.

Does your business have a game plan in place for the start of the World Cup?

Even those who are not football fans will probably be aware that the Football World Cup competition starts in Russia on 14 June. ACAS have produced some guidance to assist employers in dealing with the issues that are always thrown up by tournaments of this kind.

Bridging the pay gap

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

Turning the tables on Sexual Harassment

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Clarity on parity for agency workers

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Tribunal Fee Refund Scheme Opens

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

The Menopause and the Workplace

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Settlement Agreements and Winding Up

Author: David Seals

In Officeserve Technologies Limited (in liquidation) and another v Anthony-Mike, the High Court held that a settlement agreement entered into between a company and one of its directors during the period between a winding up petition being presented and the making of the winding up order was void.

Does the Acquired Rights Directive (ARD) apply to a pre-pack?

Author: David Seals

In Federatie Nederlanse Vakvereniging and others v Smallsteps BV (Case C-126/16), the European Court of Justice considered how the ARD applied to a pre-pack. The insolvent business consisted of 380 childcare centres employing 3,600 staff in Holland.

Unlawful Fees Help Employee Secure An Extension of Time

Author: Matthew Kilgannon

Background

It appears that, in the last few weeks the Southampton Employment Tribunal has agreed to grant a Claimant, an extension of time to bring her claims.

Secretary awarded £360,000 compensation for sexist comment at work

Author: David Seals

In BAE Systems (Operations) Limited –v- Konczak ("K") the Court of Appeal rejected the employer’s argument that an award of compensation of £360,178 in a discrimination claim was excessive.

Tribunal Fees To Be Refunded

Author: Emily Kidd

What are Employment Tribunals?

Most UK employment rights are enforceable through the Employment Tribunals. Employment Tribunals were originally set up so that the layperson could bring a claim in an informal setting which did not require them to have legal representation. Any legal costs were usually borne by each of the parties, unlike the civil courts where the losing party was usually ordered to pay both parties’ costs.

Data Protection: GDPR Guidance Updated

Author: Matthew Kilgannon

On 25 May 2018, the General Data Protection Regulation (GDPR) will replace the Data Protection Act. While the GDPR is a European Regulation, the UK Government has confirmed that the UK’s exit from the EU will not affect the commencement of the GDPR.

Long Term Sick Absence Dismissals: Avoiding the Pitfalls

Author: Keith Potter

For many employers dismissing an employee for long term sick absence is probably regarded as one of the more straightforward tasks. The relevant case law has been established for about 40 years and the basic principles are well understood.

FCA Fines Investment Banker for Sending Client Information Over WhatsApp

Author: David Seals

A well drafted contract of employment will normally contain a robust provision restricting the employee from disclosing the employer’s confidential information. But breaches of confidentiality do not regularly feature in employment cases that come before the Courts. There are various reasons why an employer may not pursue such matters. However, the position for employees in regulated sectors such as the banking industry who misuse confidential information is more fraught, as the case referred to below demonstrates.

Employees and Breastfeeding

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Provision of Services and Disability Discrimination

Author: Nicola O'Dwyer

In FirstGroup PLC v Paulley, the Supreme Court considered the extent to which reasonable adjustments should have been made by a bus operator to accommodate a wheelchair user.

Disciplinary Investigations

Author: Keith Potter

There is long-standing case law to the effect that, if a dismissal for misconduct is to be fair, the employer must investigate the facts thoroughly. It must then be able to show that it has reasonable grounds for concluding that the employee committed the misconduct of which he is accused and that the relevant misconduct is a sufficient reason for dismissing the employee. The employer’s decision must be shown to be within the range of reasonable responses – a principle which gives some latitude to employers.

Employment Status - The Uber Case

Author: Keith Potter

The employment tribunal’s decision in the case relating to the Uber taxi drivers was given in late October 2016 (Aslam and others v Uber BV and others). The drivers claimed that they were “workers” under employment legislation. If true, this meant that they were entitled (a) to the national minimum wage for hours worked, (b) to paid annual leave and (c) to protection against unlawful deductions from wages.

Rest Breaks

Author: Keith Potter

There has been conflicting case law on the subject of the right of workers to take rest breaks during the working day. The Working Time Regulations entitle a worker to an uninterrupted rest break of at least 20 minutes (or 30 minutes in the case of a worker less than 18 years’ old) where the working day exceeds 6 hours.

Termination Payments

Author: Keith Potter

In 2015 the government embarked on consultation about simplifying the tax treatment of termination payments, an area which has frequently given rise to dispute and uncertainty in the past. The government’s response to the consultation has now been published. The proposed changes will take effect in April 2018.

Holiday Pay

Historically, holiday pay was always calculated by reference to an employee’s basic pay. This principle was challenged in 2011 in a case involving various British Airways employees (Williams and others v British Airways plc), who successfully claimed that various allowances that they normally received in addition to their basic pay should be taken into account when calculating their rate of holiday pay. According to the Court, it was necessary to consider whether the additional allowances were intrinsically linked to the work which the employees were contracted to perform. The Court decided that there was a sufficiently close link and that the allowances should therefore form part of holiday pay.

The Christmas Party - An Employer's Liability

Author: Matthew Kilgannon

Background

Christmas parties can be a hot bed issues for business owners and HR. With Christmas parties in full swing, the High Court has recently delivered a decision that provides a timely reminder of the extent of your liability at such events.

Brexit Impact on Employment Law

Author: Emily Kidd

As we begin the journey to move forward from the vote to leave the EU, we consider the implications for employment law of Brexit.

Employer's disciplinary investigation was not an invasion of privacy

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

Suspension of Childcare Vouchers During Maternity Leave

Author: Daniella Magennis

INTRODUCTION

Many employers offer employees childcare vouchers under a salary sacrifice scheme. This allows employees to benefit from tax and national insurance savings.

Recruiting and Retaining Transgender Staff

Author: Daniella Magennis

On 26 November 2015, the Government Equalities Office issued guidance for employers on recruiting and retaining transgender employees. This new advice has been produced in collaboration with the UK’s leading inclusion and diversity experts, Inclusive Employers, who work with employers to achieve an inclusive culture in the workplace. Correspondingly, the recently published guide offers useful practical suggestions and ideas on how employers can implement new strategies in the running of their organisation to afford more consideration to transgender employee needs; thereby creating an ethos that engenders dignity to all workers, allows every member of staff to feel included and complies with the law.

How To Restrict The Activities of Former Employees

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Budget Update and Other Employment Law Changes 2016

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

How Effective Are Your Contracts of Employment?

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Social Media Misconduct – Relying on Stale Information

Author: Keith Potter

It is frequently said that an employer ought to act promptly when made aware of information which may involve a breach of a disciplinary rule, particularly in cases where the possible penalty is dismissal.

Dismissals and Inconsistency of Treatment

Author: Keith Potter

From time to time employers are faced with cases in which two or more employees have taken part in an instance of misconduct, often one involving violent or threatening behaviour. The employer may take the view that the conduct of one of the participants was more reprehensible than that of the other(s). Is the employer entitled to differentiate between the employees as regards the disciplinary sanctions that it imposes?

Disability Discrimination and References

Author: Keith Potter

A further illustration of the pitfalls associated with allegations of disability discrimination arises from a recent Employment Appeal Tribunal (EAT) case involving the giving of a written and verbal reference.

Employers Liable for Staff Who Drive at Work

Co-Authors: Matthew Kilgannon and Daniella Magennis

BACKGROUND

Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

How Safe is 'Safe-Harbour'?

On 6 October, the Court of Justice of the European Union (CJEU) issued its decision that has far reaching implications on businesses that transfer personal data to the United States. It held that the European Commission’s decision on 26 July 2000 that personal data can be transferred to the United States where organisations sign up to the ‘Safe-Harbour’ data protection principles, was invalid.

Unfair Dismissal where HR overstepped the mark

Author: David Seals

In the recent case of Ramphal –v- Department for Transport, the Employment Appeal Tribunal (“EAT”) held that a dismissal was potentially unfair where it had been too heavily influenced by the HR department. The case has serious implications on the limit to HR’s role in dismissal cases.

Work and The Menopause

Author: Nicola O'Dwyer

The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.

Dismissal of Christian for Homophobic Views was Discrimination

Author: David Seals

In the recent case of Mbuyi –v- Newpark Childcare (Shepherds Bush) Limited an employment tribunal found that a Christian nursery worker had been unlawfully discriminated against when she was dismissed for expressing negative views of homosexuality at work in relation to a colleague.

Election 2015: What's In Store for Employment Law?

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

"Public Interest" Test for Whistleblowing - An Easy One to Satisfy?

Author: David Seals

The Employment Appeal Tribunal (EAT) has made a decision which suggests that the “public interest” test for whistleblowing claims introduced two years ago will be a much easier one to satisfy than had been previously thought.

Injury to Feelings Awards Can Be Tax Free

Author: Matthew Kilgannon

The recent case of Timothy James Consulting v Wilton has provided some helpful guidance on a couple of important areas of law:

Shared Parental Leave

Author: David Seals

Shared Parental Leave (“SPL”) is a brand new employment right from April 2015 which allows working parents to share statutory leave and pay on the birth or adoption of a child.

Shared Parental Leave and Pay

Shared Parental Leave and Pay - the New Employment Right

Existing Family-Friendly Employment Rights

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Fit for Work

Author: Nicola O'Dwyer

In December 2014, the Government launched the Fit for Work scheme (“FFW”). The scheme includes a website and telephone advice line. The opportunity for an occupational health referral will be in place by May 2015.

Landmark holiday pay case increases costs for employers

Author: Matthew Kilgannon

Overview

As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Employment Law - It's a funny old game!

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Does Size Matter?

Author: Matthew Kilgannon

In Blackburn –v– Aldi Stores Limited the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to provide an impartial grievance process could amount to a breach of the implied term of trust and confidence, and form the basis of a constructive dismissal claim.

Settling Employment Disputes

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Why You Should Review Contracts of Employment

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

Unexpected Absence

Author: Nicola O'Dwyer

It is likely that there will be occasions when an employee fails to attend the workplace owing to circumstances beyond his/her control. This type of non attendance may be caused by the following:...

Unfair Dismissal Update

Author: Matthew Kilgannon

In 2013, we saw a number of changes to the rules relating to unfair dismissal, which includes:...

False Self Employment

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Zero Hours - Useful or Abused?

Author: Laura Marchington

Zero-hours contracts have been the subject of much debate over recent months. This includes a lot of press coverage where these types of arrangements have alleged to have been abused. Figures from research carried out by the Chartered Institute of Personnel and Development (CIPD) estimates that around 3% of the workforce are working on a zero-hours contract; that is, approximately one million people.

School Liable for Brain Damage?

Authors: SImone Horrobin and Matthew Kilgannon:

The recent Supreme Court decision of Woodland v Essex County Council highlights the exposure faced by Schools when engaging third parties to provide services. While the case involved a maintained School, the implications apply equally to independent Schools, indeed, part of the Court’s rationale included reference to fee-paying schools have greater exposure given the contractual nature of the relationship.

Confidential Discussions (Pre-Termination Negotiations)

As one of its many recent changes, the Government has now introduced a new right for employers, employees and their representatives to have confidential discussions regarding the termination of an individual’s employment.

Shareholder Employees

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

More Confusion over Calculating Holiday Pay

In Neal -v- Freightliner Limited an Employment Tribunal considered whether overtime pay should be included when calculating statutory holiday pay.

Employment Law Reforms

There are three major changes to employment law which come into effect on 29 July 2013:

Woolworths Administration: protective awards should have been paid to all staff

In USDAW –v- Ethel Austin Limited (in administration) & another case, the EAT has given its long awaited decision regarding protective awards under TULRCA. This involved the cases of employees of the Woolworths and Ethel Austin Stores, the former of which went into administration in November 2008.

Who are “affected employees” for TUPE consultation purposes?

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

Maximum Protective Award unfair where company faced insolvency

In AEI Cables Limited –v- GMB & others, the Emploument Appeal Tribunal (EAT) considered whether a maximum protective award under the Trade Union and Labour Relations (Consolidation) Act 1992 had been appropriate.

Dismissals by Administrator Were Unfair under TUPE

In Kavanagh and others v Crystal Palace FC (2000) Ltd the Employment Appeal Tribunal found that an employment tribunal had erred by finding that dismissals by an administrator were fair because they were for an ETO reason.

Claims to the NI Fund: Insolvency is a single event

In the Secretary of State for Business –v- McDonagh & others, the Employment Appeal Tribunal (“EAT”) had to consider when “insolvency” occurred under the Employment Rights Act 1996 (“ERA”) in respect of claims for arrears of pay and holiday pay from the National Insurance Fund (“NIF”).

More Flexibility For Parents - Are You Ready?

Towards the end of 2012, the Government announced its intention to allow more flexible and family friendly working practices.

Promoting Employees - How Restrictive are Restrictive Covenants?

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

Sickness and Annual Leave – Recent European Court of Justice Decision Blatantly Favours Workers

In the case of ANGED v FASGA, the European Court of Justice deliberated on whether a worker was able to take leave at a later date when it fell during a period of statutory leave.

Redundancy - One to Watch Out For

If there is a reduction in hours of work does it amount to a redundancy? This was the burning question before the Employment Appeals Tribunal in the case of Packman t/a Packman Lucas Associates v Fauchon.

Fidelity and Fiduciary Duties

In the recent case of Ranson v Customer Systems Plc the Court of Appeal set the parameters of when an employee owes his employer fiduciary and fidelity duties.

Enterprise and Regulatory Reform Bill

On Friday 2nd May 2012, the Queen announced the Government’s legislative agenda for the next year. The focus is introducing new measures to boost the UK economy. Two Bills were specifically mentioned: The Enterprise and Regulatory Reform Bill aimed at “creating the right conditions for economic recovery” and The Banking Reform Bill, which will “foster financial stability and a more resilient banking sector”.

Does TUPE Apply to Landlords After the Assignment of a Pub Lease?

A recent case in the Employment Appeal Tribunal (EAT) has stated that TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) does not apply to the assignment of a lease unless the economic entity retains its identity.

Recent Changes in Employment Law

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

Redundancy - EAT Decision Favours Employers

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

Employees protected by TUPE in administration cases

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

TUPE 2006 – BIS call for evidence

The BIS has issued a call for evidence seeking views on the effectiveness of TUPE 2006.

Good news for employers - new rules regarding unfair dismissal

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

Long Term Sickness

To help combat the level of sickness by employees, approximately 140 million days per year, the Government called for a major review of the sickness absence system in February 2011.

The Agency Workers Regulations 2010

The Regulations are intended to give effect to the Temporary Agency Workers Directive (the Directive) and they came into effect on 1 October 2011. The aim of the Directive is to provide basic working and employment conditions for assigned workers that are no less favourable than if they had been recruited directly by the hirer.

"Protected Conversations"

The Government has announced proposals that will cause the biggest shake-up of employment law for decades.

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