Legal Updates from Kervin & Barnes

At Kervin & Barnes, we believe in being up-to-date with the latest in employment law and regularly send out employment law update newsletters.

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Normal wage for SRP and statutory notice

31 July 2020

Today (Friday 31 July 2020) the government has brought in new legislation to confirm that those furloughed employees who are later made redundant must receive any statutory redundancy pay to which they are entitled at their normal wage rate (i.e. 100% and not the furlough 80% rate, albeit subject to the statutory cap on a […]

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Job retention bonus for employers

8 July 2020

Today (8 July 2020) the Chancellor, Rishi Sunak, announced a £1,000 “job retention bonus” for employers that bring employees back from furlough and continue to employ them until at least January 2021. Those employees returning from furlough must earn at least the lower earning limit for national insurance (£520 per month) between November 2020 and […]

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Flexible furlough available 1 July 2020

1 July 2020

Just a reminder that from today, 1 July 2020, employees who have already been furloughed (the scheme having been closed to new joiners from 10 June 2020) can divide their time between flexible working and furlough. The precise balance between work and furlough can be any proportion agreed between the employer and employee. The employee […]

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Coronavirus Job Retention Scheme – Latest Update

5 June 2020

Whilst we are awaiting a further Government Treasury Direction on the Coronavirus Job Retention Scheme (the “Scheme”), the following changes to the Scheme have been announced: 10 June 2020 will be the last day that an employer can place an employee on furlough. The Scheme will run until 31 October 2020. The Government’s support will […]

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Coronavirus Job Retention Scheme extended to October 2020

12 May 2020

The Chancellor has extended the Coronavirus Job Retention Scheme (the Furlough Scheme) until October 2020. More details will follow…………………

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An Innocuous Final Straw?

7 May 2020

Can constructive dismissal be established if the “final straw” event was an innocuous one? Yes, said the Employment Appeal Tribunal (EAT) in Williams v The Governing Body of Alderman Davies Church in Wales Primary School UKEAT/0108/19/LA. Previous conduct of the employer that amounts to a fundamental breach can be considered by an Employment Tribunal, provided […]

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Changes to the Coronavirus Job Retention Scheme

21 April 2020

In the past week there have been some significant changes to the Government’s Coronavirus Job Retention Scheme (the “Scheme”). We will highlight the main changes and clarifications at the top of this note and repeat our main summary (with the changes incorporated) below that. The Scheme applies to employees on the payroll on 19 March […]

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Job Retention Scheme – Qualification Date revised

15 April 2020

As at 2pm on 15 April 2020: The government has revised the Qualification Date for the Coronavirus Job Retention Scheme from 28 February 2020 to 19 March 2020 (the latter being the day before the Chancellor announced the Scheme). See our update on the Scheme for further details.

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The latest on the Coronavirus Job Retention Scheme

7 April 2020

As of 10am on 7 April 2020, the Government’s Coronavirus Job Retention Scheme (the “Scheme”) can be interpreted as follows: Fundamentals The Scheme will apply from 1 March 2020 to 31 May 2020; it may be extended. The Government will refund up to 80% of “usual monthly wage costs” (excluding fees, bonuses and most commission) […]

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Self-employment Income Support Scheme

3 April 2020

Alongside the Coronavirus Job Retention Scheme for Employees, the government has established a Self-employment Income Support Scheme. The key points of this Scheme are as follows: This will provide a taxable grant of 80% of trading profits up to a maximum of £2,500 per month for a three month period (which may be extended if […]

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Coronavirus Job Retention Scheme – Further Update

27 March 2020

As of 11pm on 26 March 2020, the Government’s Coronavirus Job Retention Scheme (the “Scheme”) can be interpreted as follows: *UPDATED LIST* The Scheme will apply from 1 March 2020 to 31 May 2020; it may be extended. The Government will refund up to 80% of “usual monthly wage costs” (excluding fees, commission and bonuses) […]

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Coronavirus Job Retention Scheme – Further information

An ‘FAQ’ document sent by Dr Luke Evans MP (MP for Bosworth) purports to give further information on the Job Retention Scheme. Presumably it is meant to provide employers/employees with further clarity before the formal regulations are implemented: The scheme applies to all employees working through PAYE, whether permanent, temporary, part-time, zero hours or otherwise. […]

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Coronavirus Job Retention Scheme – Further Update

25 March 2020

As of 5pm on 25 March 2020, the Government’s Coronavirus Job Retention Scheme (the “Scheme”) can be interpreted as follows: *UPDATED LIST* The Government will contribute up to 80% of “wages” or “wage costs” (both terms are used) up to a maximum of £2,500 per month for those employees furloughed. “Furlough” is not a term […]

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Coronavirus Job Retention Scheme – Update

24 March 2020

As of 12 noon on 24 March 2020, the Government’s Coronavirus Job Retention Scheme (“the Scheme”) is as follows: The Government will contribute up to 80% of “wages” or “wage costs” (both terms are used) up to a maximum of £2,500 per month for those employees furloughed. “Furlough” is not a term ordinarily used in […]

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An ethical veganuary judgment

7 January 2020

The Norwich Employment Tribunal has concluded that a Claimant’s ethical veganism (and not simply dietary veganism) amounts to a philosophical belief capable of protection under the Equality Act 2010. Mr Casamitjana has brought a claim for automatically unfair dismissal, whistleblowing detriment and philosophical belief discrimination against The League Against Cruel Sports, a charity. A preliminary […]

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Supreme Court backs refusal right of religious bakers

10 October 2018

Today the Supreme Court found in favour of a Christian couple who refused to bake a cake with the message “Support Gay Marriage” iced on to it. The judgment in Lee v Ashers Baking Company Ltd and others [2018] UKSC 49 can be found here. Mr Lee is a gay man who supports QueerSpace, an […]

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Rates and Limits for HR Managers and Employees

10 July 2018

We have recently updated our two-page guide to the current employment law rates and limits. Feel free to download this and save it for reference over the coming months!

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Unequal Shared Parental Pay v Maternity Pay not discriminatory

17 April 2018

Last week the Employment Appeal Tribunal (EAT) gave judgment in the case of Capita v Ali UKEAT/0161/17/BA and concluded it was not discriminatory to pay a man less shared parental pay than a woman would have received on maternity pay. Mr Ali commenced shared parental leave when his child was a few weeks old and […]

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2017 Legal Round-Up

30 December 2017

Employment Status and the Gig Economy 11th January 2017 In the first of four soon to be heard employment cases against courier companies (according to the BBC: Addison Lee, Excel and E-Courier), an Employment Tribunal has decided that a cycle courier working for City Sprint was a worker under section 230(3)(b) of the Employment Rights […]

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2016 Legal Round-Up

30 December 2016

Taxation of payments for “injury to feelings” 29th Jan 2016 Moorthy v Commissioners for HM Revenue and Customs The Tax and Chancery Chamber of the Upper Tribunal (TCC) held a sum paid to an employee under a settlement agreement in respect of injury to feelings was not exempted from income tax under S.406 of the […]

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Uber, Hermes and employment status

20 July 2016

This week there have been more news stories about employment status and those working in growing sectors – Uber drivers and Hermes couriers – known as the “gig economy”. In each instance, the company has claimed that the individuals carrying out work under their name are self-employed contractors and those carrying out the work have […]

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Breakdown in employment relationship – Unfair dismissal?

15 June 2016

This week judgment was delivered by the Employment Appeal Tribunal (EAT) in another interesting SOSR case i.e. dismissal for Some Other Substantial Reason. The case of Express Medical Limited v O’Donnell UKEAT/0263/15/DA concerned procedural fairness and the applicability of a Polkey deduction. At Employment Tribunal Mr O’Donnell won his unfair dismissal claim and no Polkey […]

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2015 Legal Round-Up

30 December 2015

Equal Pay Update 23rd January 2015 Equal Pay Update – January 2015 Bonus season is approaching and some employees will inevitably get paid more than others.  Sometimes there is a good reason, but what about if the reason is gender? The Law Since 1970, men and women have been entitled to equal pay for equal […]

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2014 Legal Round-Up

30 December 2014

Equal Pay 11th August 2014 The Independent has reported that the pay gap between the sexes began to widen again in 2013, reversing years of progress. The figures, based on an analysis by the House of Commons Library, show that in 1997 the pay gap between men and women was 27.5 per cent. Over the […]

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Unfair Dismissal: Sharon Shoesmith & Haringey Council

29 October 2014

A recent documentary on Haringey Council and the Baby P scandal which included reports on Sharon Shoesmith’s drawn out legal claim, was recently aired on BBC 1. Much of the reporting around the case has been inaccurate and has confused her claims. We have set out below a summary of her claims and the reported […]

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SOSR Dismissal: Some Other Substantial Reason

2 October 2014

In this guide we’re looking at recent developments in SOSR dismissals and how employers can benefit from this fast developing area of law. Part One: SOSR Dismissals When establishing that an employee has been dismissed fairly, an employer must first show that the reason for the dismissal falls within one of five potentially fair reasons: […]

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Health and Work Service – Spring 2015

4 August 2014

Since 6 April 2014, Statutory Sick Pay paid to employees has not been recoverable by businesses. Recently the government told us that it plans to use the money saved to fund the Health and Work Service (HWS) which will commence in spring 2015 after a trial later this year. The aim is for the HWS […]

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Holiday Pay Policy & Definition

6 June 2014

In Lock v British Gas Trading Ltd, the Court of Justice of the European Union (CJEU) has held that, where a worker’s remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes statutory holiday pay based on basic salary alone. If commission payments are not taken into account, the worker […]

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2013 Legal Round-Up

30 December 2013

Summary of important changes to employment law and other hot employment topics 31st Jan 2013 ‘Ending the Employment Relationship’ consultation The Government intends to introduce a 12 months’ pay cap on the compensatory award for unfair dismissal; moving away from the current cap of £72,300. This cap is designed to reach a better balance between […]

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2012 Legal Round-Up

30 December 2012

Libel case following “false” allegations of sexual harassment 27th Feb 2012 According to The Telegraph a married solicitor who was cleared of sexually harassing a female colleague is suing her for damages.  He claims that her false allegations have ruined his personal and professional reputation. It is reported that Mr Loughran, 50, a litigation solicitor with Anglian […]

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ACAS guide to Redundancy & Pregnancy/Maternity

17 August 2012

In partnership with the Equality & Human Rights Commission, ACAS (the government-funded employment conciliation service) has produced a guide to “Managing Redundancy for pregnant employees or those on maternity leave”. This guide deals with questions such as: How should I treat pregnant employees or those on maternity leave when considering redundancies? How much priority do […]

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Annual leave and sickness absence re-visited

23 May 2012

Georg Neidel v Stadt Frankfurt am Main CJEC Case C-337/10 The Court of Justice of the European Communities (CJEC) has given judgment in a case referred by the German courts concerning the payment in lieu of annual leave over and above the minimum amount specified in the European Working Time Directive ­ four weeks. This […]

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Rooney and restraint of trade

20 February 2012

A dispute involving Wayne Rooney and his previous sports agency has given rise to an interesting reminder on the scope (and effect) of the restraint of trade principle. At the age of 17, Wayne Rooney and his parents entered into an eight-year image rights representation agreement (IRRA) with his agency, Proactive. When his agent (Paul […]

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Time to review your company’s business protection provisions?

15 February 2012

Mrs Justice Cox, in Towry EJ Limited v Barry Bennett and others, has provided a useful reminder of the value of “non-dealing” covenants over “non-solicitation” covenants (or indeed the two working in tandem). Mrs Justice Cox has held that to prove “solicitation” in restrictive covenant litigation, the burden is on the employer to adduce evidence […]

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Weight Watchers (UK) Ltd v HMRC: Summary

7 February 2012

Were ‘Leaders’ engaged to conduct Weight Watchers meetings employees of Weight Watchers Ltd for the purposes of PAYE and NI contributions? Yes, says the Upper Tribunal (Tax and Chancery Chamber) in the case of Weight Watchers (UK) Ltd v HMRC. In this case, Leaders engaged by WWUK signed contracts describing themselves as independent contractors and […]

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TUPE & Unfair Dismissal of Chief Exec fired by administrator pre-transfer to make business sale more attractive

4 January 2012

Spaceright Europe Limited v (1) Mr Baillavoine (2) Sec. of State for Business, Innovation & Skills Where a dismissal is for a reason connected with a Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) transfer it will be automatically unfair unless it can be shown to be for an Economic, Technical or Organisational (“ETO”) reason that […]

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2011 Legal Round-Up

30 December 2011

What does 2011 have in store? 8th Jan 2011 Default retirement age The consultation on the government’s proposals to abolish the DRA closed on 21 October 2010 and, although the response to the consultation was expected “before Christmas”, it is now due later this month. Under the proposals employers giving notice of retirement after 5 […]

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Plans for widespread major reforms to employment law

30 November 2011

In the last week the government has announced a huge number of changes and potential changes to employment law.  These plans come in addition to other major proposals recently announced by the coalition government (see below). The changes put forward for further consideration and/or consultation are as follows: Compulsory pre-claim conciliation. Re-naming compromise agreements as […]

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Re-engagement and Alternative Vacancies

21 October 2011

Does a finding that a dismissal was genuinely on grounds of redundancy remove the need to explain the remedies of reinstatement or re-engagement? No, says the EAT in the case of King v Royal Bank of Canada. Ms King was dismissed by reason of redundancy. The tribunal found that the dismissal was automatically unfair because there […]

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ET and EAT Statistics

7 September 2011

The ET and EAT statistics for 2010-2011 have been published and can be found here. They show an 8% fall in claims received when compared with 2010 but a 9% rise in the number of cases disposed of. The number of single claims received has fallen 15% and the number of multiple claims has fallen 4%. […]

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Autoclenz Limited v Belcher and others

29 July 2011

In this case, the Supreme Court upheld the Court of Appeal’s decision that car valets, whose contracts stated that they were self-employed, were actually employees. The claimants claimed that they were either ‘workers’ or employees of Autoclenz and thus entitled to certain rights including minimum wage and holiday pay. They were engaged under agreements that […]

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TUBE strikes loom as RMT member wins his claims for unfair dismissal and trade union victimisation

10 May 2011

There have been a series of headlines relating to the dismissals of tube drivers Eamonn Lynch and Arwyn Thomas in the last couple of weeks. Last week, the largest transport union, RMT demanded an urgent meeting with London Underground following the judgement of the tribunal on 4 May 2011. The Tribunal concluded that Mr Lynch […]

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Internal Disciplinaries and Human Rights

26 April 2011

In the case of Puri v Bradford Teaching Hospitals [2011 EWHC 970], the High Court held that Article 6 of the European Convention of Human Rights is not engaged in respect of internal disciplinary procedures if their effect is not to deprive the employee concerned of the right to practise his profession. The Claimant was […]

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Significant Anti-Age Discrimination Regulations Come Into Force Today

6 April 2011

Today, 6 April 2011, the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 come into effect. Gareth Kervin, Partner at Kervin & Barnes Solicitors (Mayfair, London) says: “The regulations are a significant change in the employment landscape. He added: “They potentially mark the most significant change in employment law for 20 years.” As the […]

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Legislative changes in April 2011

4 April 2011

1 April Moratorium exempting micro and start-up businesses from new domestic regulation begins 3 April Additional paternity leave and pay regulations came into force on 6 April 2010 but apply to parents of children due (or matched for adoption) on or after 3 April 2011 Statutory Maternity, Paternity and Adoption pay increases from £124.88 to […]

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Paternity Leave – “Chunks”?

18 January 2011

Currently fathers of new babies are entitled to two weeks paid leave (Ordinary Paternity Leave) when their child is born provided they have been working for their employer for six months. Additional Paternity Leave is due to be introduced in April 2011 and will allow fathers to take up to 26 weeks leave in one […]

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Default Retirement Age

14 January 2011

In August 2010 we reported that the Government had proposed plans to phase out the Default Retirement Age (DRA). The DRA stipulated by the Employment Equality (Age) Regulations 2006 is currently 65. The Government has now confirmed that the DRA will be phased out from 6 April 2011, and will be completely abolished on 1 […]

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2010 Legal Round-Up

30 December 2010

Exercise Of Contractual Variation Clause 16th Feb 2010 Bateman & Others v Asda Stores Ltd EAT – 11/02/2010 EAT held that where a term in a Staff Handbook permitting unilateral amendments to pay and other conditions is incorporated into an employees’ contract, the employer can change provisions relating to pay, bonus, hours etc without express consent […]

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Paid Maternity Leave Extension Strongly Opposed

8 December 2010

The European Parliament’s proposed 20 weeks of maternity leave at full pay will be opposed by Edward Davey, Minister for Employment Relations, at the EU Employment Council meeting. Arguments for the opposition include: Considerable and unacceptable costs to EU State Members during a recession; Seen as ‘socially regressive’ as the highest earning women will benefit […]

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Collective redundancies: when is the obligation to consult triggered?

12 November 2010

The question of when an employer’s obligation to collectively consult arises has been referred to the European Court of Justice. Specifically, the issue is whether the obligation to consult arises before or after a decision is taken that will result in collective redundancies? USA v Nolan can be summarised as follows: In March 2006, the Secretary of the US […]

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Default Retirement Age To Be Phased Out Starting April 2011

3 August 2010

On Thursday 29 July 2010, the Government revealed its proposed plans to phase out the default retirement age. The default retirement age stipulated by the Employment Equality (Age) Regulations 2006 is currently 65. The proposed phasing out would begin in April 2011. Consultations over the suggestions will run until 21 October 2010, when a final […]

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Disciplinary Hearings – Pitfalls For The Unwary

7 July 2010

Recent case law and a change to the statutory regime have meant that disciplinary hearings ­ and the policies and procedures that surround them ­ need to be treated more cautiously than may previously have been the case.  Our new partner, Hilary Norris explores the issues. Three particular cases have caught the eye.  All involve […]

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Not The Standard For HR Teams To Measure Themselves Against…

11 June 2010

In a Which? survey of over 4,000 members of the British public, only three in ten employees received their contract before starting their job, and nine per cent didn’t get a contract until they’d been in the post for six months or more. Furthermore only 26 per cent of workers only skim read their employment […]

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Dismissals With Serious Consequences Should Be Handled With Care

28 May 2010

In Salford Royal NHS Foundation v Roldan, the Court of Appeal stated that where there is a real chance a dismissal will hinder the employee’s career, there is an added burden on a disciplinary board to examine how reasonable a dismissal would be. Furthermore where this is the case, the Tribunal will examine the decision […]

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Unite Hit Back

20 May 2010

The Times reports that Unite’s appeal against the High Court injunction earlier this week has been successful. The Unite union said that the strikes could begin as early as next week. Derek Simpson, Unite’s joint general secretary, said: “It strikes at the argument that minor technicalities can set aside ballots like this one which were […]

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S.231 Saves The (Holi)day

19 May 2010

The Guardian has reported that the BA strikes due to run from 18-22 May inclusive, then from 24-28 May, 30 May-3 June and 5-9 June has been ruled unlawful. In addition Unite could be liable for compensation of at least £250,000 and that the crew who joined the March strikes could be threatened with severe […]

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Meaning Of “contract worker” Defined By Court Of Appeal

12 May 2010

The Court of Appeal has shed light on the meaning of a “contract worker” as defined in section 7 of the Race Relations Act 1976. Mr Woodhouse (of African Caribbean origin) issued a claim of race discrimination against West North Homes Leeds Ltd, Leeds City Council and an employee of Leeds City Council (a Mr […]

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Latest In Unite/BA Dispute

29 March 2010

In a letter to the Guardian in March 2010, professors from the London School of Economics and other universities accused BA of having a radical agenda in a dispute that is set to enter its second weekend of strikes with no peace talks on the horizon. A BA spokesperson said “we reject any suggestion that […]

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Additional Paternity Leave Regulations 2010 Approved

The House of Lords has approved the Additional Paternity Leave Regulations 2010. These provide that: 1) Additional paternity leave will be for a maximum of 26 weeks (provided the mother has returned to work) and a minimum of 2 weeks; 2) It must not start until at least 20 weeks after the birth or placement […]

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Gill Switalski Settles F&C Asset Management Claim

24 March 2010

Prior to the remedy hearing due to take place this week, Gill Switalski settled her claim for sex discrimination, victimisation and constructive dismissal against F&C Asset Management for an undisclosed “multi-million pound” sum. The settlement followed appeals by F&C Asset Management of earlier tribunal decisions which were subsequently upheld in Switalksi’s favour. Previous reports in […]

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BNP’s Rewritten Membership Criteria Still Discriminatory

Even though the BNP have taken out a “whites-only” clause from their membership criteria in the constitution, the Central London County Court still maintains that the policy is racist. The Court has instructed the further elimination of two clauses it considers indirectly racist to non-white potential members: an obligation for new members to: 1) Consent […]

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PCC Service Reduces Tribunal Claims

Businesses and employees are choosing to use Acas’s Pre-Claim Conciliation (PCC) service to prevent their claims reaching the employment tribunal. Since September 2009 the amount of referrals has nearly doubled, with 8,304 overall since April 2009 (when the service was launched). The PCC service has helped avoid 5,000 tribunal claims, as stated by Acas.

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C Of A – A Uniform Policy Banning A Visible Cross Was Not Indirect Religious Discrimination

19 February 2010

In Eweida v British Airways plc, the Court of Appeal ruled that an employee was not indirectly discriminated on the ground of her religion or belief where BA insisted that the cross on her necklace be concealed. The Court confirmed that it is necessary to show evidence of disadvantage to a group, not just the […]

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Annual Compensation Limit Falls

17 December 2009

Tribunal Compensation. The recent annual review of compensation limits has led to an unprecedented reduction to the maximum (“capped”) compensatory award. From 1st February 2010 onwards, the capped compensatory award is reduced to £65,300 from £66,200. A week’s pay remains the same at £380.

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New Draft Regulations On “No Win/No Fee” Published

The Ministry of Justice have published draft regulations on regulating damages-based agreements (e.g. “no-win, no-fee” / contingency fee agreements) dealing specifically with employment tribunal cases in England and Wales. The draft regulations deal with: – The provision of information to clients including costs and expenses payable and the reason for the fee level; – A cap […]

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