What did we get up to last month?
May saw the team’s annual employment law conference take place at the Peterborough office. Giles, Katharine and Alison were joined this year by Mark Hildred of Moore Thompson Accountants, who updated us on employment tax issues, and Stephen Smith of Sphere Risk Health & Safety Management who told us more about the HSE’s Fees for Intervention scheme. It was a great turnout and we really enjoyed the morning – thank you to all who attended.
Our thought for the day at the beginning of May was about the effect that TUPE will have on employee shareholder contracts, which will be introduced later this year. It is not clear to us how these contracts will transfer intact from one employer to another. Having tweeted this thought, it was confirmed by Doug Pyper. employment and equality specialist at the House of Commons, that this issue had not been addressed in any debate in either the Commons or Lords. So what will happen to TUPE transfer at this stage is anyone’s guess! This issue will no doubt form part of a future update.
It was with some amusement that we read about the worst (or best, depending your point of view!) excuses that employees give for missing work.
Any interesting cases in May?
There have been a few cases worth knowing about:
- The Employment Appeal Tribunal in Onu v Akwiwu held that the Equality Act 2010 does protect former employees against post-termination victimisation. This decision is in stark contrast to the EAT’s previous decision in Rowstock Ltd v Jessemey that post-termination victimisation under the Act is not unlawful. These contrasting views are a direct result of the confusing way in which the Act has been drafted and it will now be for the Court of Appeal to determine which EAT decision is correct. Some commentators have expressed concern that the conflicting decision will cause confusion for employers, but our view is that employers should not really be victimising former employees, whether it’s unlawful to do so or not.
- In Romero Insurance Brokers v Templeton the High Court upheld a 12 month non-solicitation covenant in the contract of employment of a senior insurance broker. This was for three main reasons: 1) The 12 month duration made sense in the context of the insurance industry where policies are traditionally renewed on an annual basis; 2) Mr Templeton had been recruited specifically to develop Romero’s business; and 3) It was perfectly legitimate for Romero to wish to protect its client contacts by preventing solicitation by Mr Templeton. This case highlights the fact that the Courts will look in details at the facts of each specific case when determining the question of enforceability. This means that it is vital for covenants to be tailored to each individual employee – standard covenants simply added to all employment contracts as a matter of course are unlikely to be effective.
- In Oasis Community Learning v Wolff, the EAT upheld the Tribunal’s order for re-engagement following its finding that Mr Wolff had been unfairly dismissed, despite the fact that there had been a history of mutual allegations of misconduct between Mr Wolff and his employer. The Tribunal was entitled to conclude that re-engagement would not be impractical despite the relationship breakdown since Mr Wolff was to be re-engaged at a different school and would be working with different managers. This is slightly surprising decision but demonstrates that a breakdown in employee/employer relationships would not necessarily prevent a Tribunal from ordering the employee’s return to work.
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