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Employment

Immigration skills – charge

The immigration skills charge came into effect on 6 April 2017, and is levied on employers that employ migrants in skilled roles. It is designed to cut down on the number of businesses taking on migrant workers (with the justification being that the funds raised will be used to address the skills gap within the domestic work force).

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Misconduct dismissals – advice

The key points to consider in any misconduct dismissal:

There must be a thorough approach to disciplinary investigations and hearings. A failure to follow the designated procedure is one of the most common reasons why employers lose (even when the dismissal should be justifiable).

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Minimum wage – sleeping shifts

If a worker has to work a number of sleep-in shifts at the work premises, and be available in an emergency, does this night-shift constitute ‘working’ for the purposes of the national minimum wage? Alternatively, is the worker only ‘working’ when they are awake? Needless to say, this is an important issue in the care sector where sleep-in arrangements are common.

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Whistleblowers – malicious?

There is extensive protection for whistleblowers:

Dismissal because of whistleblowing will be automatically unfair dismissal. The normal financial cap on compensation does not apply.

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ET settlements – public record?

Judgments of ETs are now to be published online. But, note that ‘judgments’ will include the dismissal of proceedings on withdrawal, or on settlement via ACAS (using COT3).

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IR35 – public sector

IR35 is aimed at the abuse of personal service companies as a way of avoiding IT and NI (with the worker being classified as self-employed, rather than as an employee). Because the Revenue was concerned about the artificial use of personal service companies, and other intermediaries, it introduced a regime known as IR35.

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Misconduct – disability discrimination

The concept of ‘discrimination arising from disability’ is still evolving. It arises when the employee is treated unfavourably because of something arising in consequence of disability – where it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. Two ‘misconduct’ cases illustrate how difficult this can be:

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Confidential information – £2 damages!

Two employees of a large asset management firm systematically copied confidential files before they left. Subsequently, the employers sued for £15m but only recovered £2 (ie nominal damages)! The reason? The employees had made no use of the confidential information, and the employer had suffered no loss.

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Team moves – remedies?

The conventional remedy against members of a team who leave to join a competitor is to see whether there are enforceable restrictive covenants, post-termination restraints, and non-competes. Those covenants will be enforceable provided they protect a legitimate proprietary business interest, and go no further than it is reasonably necessary to do. If those legal hurdles can be overcome, then the restrictive covenant is likely to be enforceable.

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Notice – from when?

 

It is always advisable to have express provisions in a contract of employment specifying when notice will be effective. Otherwise, you are thrown back on common law principles – in which case, does contractual notice of termination take effect on (i) posting of the letter, (ii) delivery of the letter, or (iii) communication of the notice to the employee so they are aware of it?

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