Employment – Duane Morris London

June 13, 2023 by Nic Hart

Avoid Getting Stuck in Employment Tribunal’s Backlog by Resolving Cases Early

With public services seeking to catch up on waiting lists, it seemed timely to provide an update regarding the ongoing backlog of employment tribunal cases.

A statistical data set published on 13 February 2023 by the HM Courts & Tribunals Service reported that there are more than 50,000 live cases awaiting a hearing or decision. This figure is a 7 percent increase from the December 2021 figure of 47,041.

For context, it was reported in 2019 that the number of outstanding employment tribunal cases had reached 23,700, which at the time was the highest level recorded since the abolition of tribunal fees in 2017.

It is clear that the number of cases issued in the employment tribunal continues to increase rapidly and consistently. However, with current wait times of between 12 and 24 months from claims being filed, processed and then heard, it is evident that the tribunals do not have the structural capabilities to support the existing caseload, let alone any further increase to these numbers.

On a positive note, the Employment Lawyers Association’s (ELA) ‘Bringing down the backlog’ report showed that in 2022-23, 74 percent of cases were resolved without the need for a hearing at the Employment Tribunal, either through Acas early conciliation or resolution between the parties. There are also steps organisations can take within their operations to assist in reducing the backlog:

•Increase attempts by the HR department to resolve disputes within the early conciliation window. This can be achieved by working closely with occupational health and trade unions.

• Increase the ‘conflict confidence’ and capability among line managers in dealing with employment issues as they arise. The ELA also stated in their report that this lack of conflict confidence and capability among line managers acts as one of the key barriers to early and successful resolutions.

• Increase line management training to instil confidence in dealing with workplace conflict.

• Update handbooks with clear policies and procedures that are followed and applied correctly and consistently.

If you have any questions or queries on this topic or any other matter, do please get in touch. Our London Employment Law team provides assistance with review of existing policies and procedures or training programmes for line managers and are happy to discuss these at any time.

July 1, 2020July 1, 2020 by Duane Morris London

COVID-19: UK Gov Flexible Furlough Scheme – 1 July 2020 Update

By Nic Hart & Liam Hutton

01.07.2020

The Flexible Furlough Scheme (FFS) commenced today July 1^st 2020 and you can now submit claims for periods starting on or after 1 July.

GOV.UK published a news story this afternoon announcing this commencement.

As discussed in earlier mail outs the main premise of the FFS is to allow;

“businesses to bring furloughed employees back to work on a part time basis and will be given the flexibility to decide the hours and shift patterns of their employees – with the government continuing to pay 80% of salaries for the hours they do not work.”

The FFS will remain open until the end of October 2020. Continue reading “COVID-19: UK Gov Flexible Furlough Scheme – 1 July 2020 Update”

June 26, 2020February 2, 2021 by Duane Morris London

ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees

By Nic Hart & Liam Hutton

26.06.2020

The Advocate-General of the European Court of Justice has given the opinion in VL (Case C-16/19) that disability discrimination can be found by comparison between the treatment of one group of disabled employees and other disabled employees. Whilst Advocate General Opinions are not binding on the Court, they are commonly regarded as influential, and this Opinion has the potential to create a new basis for comparison in discrimination cases.

The case relates to an employer who paid a monthly allowance to those of its disabled employees who obtained and submitted a disability certificate as evidence of their disability. The issue of discrimination arose because only those who had not already obtained and submitted their certificate were eligible for the allowance.

The employer’s purpose for doing this was that by bringing about an increase in the number of disabled workers employed, the employer would be entitled to a reduction in its contribution to a disability fund.

In the Opinion, the Advocate General addresses whether this could be regarded as discriminatory for the purposes of the Employment Equality Framework Directive, and sheds some light on the applicability of the prohibition of discrimination to the conduct of an employer who treats two groups of disabled individuals differently on the basis of an apparently neutral criterion (in this instance, the date of submission of a disability certificate). Continue reading “ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees”

June 15, 2020February 2, 2021 by Duane Morris London

New Guidance on the UK Gov Flexible Furlough Scheme – 12th June 2020

By Nic Hart

15.06.2020

As advised, the Government Guidance for the new Flexible Furlough Scheme (FFS) was released on Friday evening – June 12^th.

Accessibility to the new Guidance is not the most straightforward as the information is spread across the existing CJRS Guidance and three new pieces of Guidance. The Government has also produced a summary overview of the key changes to the CJRS and the timetable for the same.

The major changes to the existing scheme with effect from July 1^st are:

there will no longer be a minimum three-week period for furlough. Whilst there will not be a required minimum period to furlough employees, any claim made to the CJRS portal must be in respect of a minimum one week period regardless of how many days may have been worked in this one week period.
Employers can no longer put in claims to the portal that cover more than one payroll period. All claims through the portal must start and end within the same calendar month.
An employer cannot furlough any greater number of employees than have been furloughed previously – subject to the provisions of those returning from parental leave.

The key principles of FFS are clear. Continue reading “New Guidance on the UK Gov Flexible Furlough Scheme – 12th June 2020”

June 5, 2020February 2, 2021 by Duane Morris London

IMPORTANT COVID-19 UPDATE: UK Gov Furlough Scheme Cut Off -10th June

By Nic Hart

05.06.2020

Further to our earlier blog posts on this topic, please be reminded that the Coronavirus Job Retention Scheme (CJRS) is closing to new entrants from 30 June 2020. You must furlough new entrants on or before 10th June.

From 1 July 2020, there will be a new flexible furlough scheme where furloughed employees will be able to return to work on a part-time basis. Full guidance has yet to be issued (proposed for 12 June 2020) but present Guidance has advised that only employees who started furlough on or before 10 June 2020 will be eligible for the new scheme.

The Government Guidance states;

“From this point onwards, employers will only be able to furlough employees that they have furloughed for a full 3-week period prior to 30 June”

Continue reading “IMPORTANT COVID-19 UPDATE: UK Gov Furlough Scheme Cut Off -10th June”

June 1, 2020February 2, 2021 by Duane Morris London

COVID-19: UK Chancellor Announces Changes To Furlough Scheme – 29th May 2020

By Nic Hart

01.06.2020

In the daily press conference on Friday May 29^th 2020, the Chancellor Rishi Sunak, announced further changes to the Coronavirus Job Retention Scheme.

In essence these are as follows:

The CJRS will continue until October 2020.
Flexi furlough will commence from July 1^st 2020.
Grants through the CJRS will be tapered from August 2020.
The scheme will close to new entrants on 30 June.

Flexi Furlough

This is commencing on July 1^st 2020 -a month earlier than previously announced. Employers can decide the hours and shift patterns their employees will work on their return to work, so that they can decide on the best approach for them. Employers will be responsible for paying the employees’ wages while in work.

Further guidance on flexible furloughing and how employers should calculate claims will be published on 12th June 2020, but HMRC has provided some initial advice:

Any working hours arrangement that you agree with your employee must cover at least one week and be confirmed to the employee in writing. When claiming the CJRS grant for furloughed hours, you will need to report and claim for a minimum period of a week. You can choose to make claims for longer periods such as on monthly or two weekly cycles if you prefer. You will be required to submit data on the usual hours an employee would be expected to work in a claim period and actual hours worked.

Continue reading “COVID-19: UK Chancellor Announces Changes To Furlough Scheme – 29th May 2020”

May 22, 2020February 2, 2021 by Duane Morris London

High Court Judgement On Restrictive Covenants & Garden Leave

By Nic Hart

22.05.2020

The Queen’s Bench Division of the High Court have held in Square Global Limited v Leonard that the absence of a garden leave set-off clause will not be fatal to a non-compete post termination restriction, touching on a the widely debated relationship between garden leave and non-compete clauses in employment contracts.

The case involved an employer’s attempts to enforce periods of garden leave and subsequent non-compete restrictions on an employee consecutively. The employee in question had resigned and in response claimed constructive dismissal on the basis that his employer had destroyed or seriously damaged the necessary relationship of trust and confidence between the parties, in breach of the implied term in the contract of employment. The High Court held on the facts that the employee was not entitled to resign summarily and by doing so, he had failed to give six months’ notice of termination and was in breach of his employment contract.

The employer sought to enforce a period of garden leave reflecting the six months contractual notice from the date of resignation, in addition to a further six months’ protection from the end date of that notice period on 11 May 2020 under the non-compete clause in the employee’s contract. This would effectively afford the employer a total of 12 months protection. The High Court were satisfied that the six month non-compete clause was pursuant to the employer’s legitimate business interests capable of requiring protection by restrictive covenants, and was reasonable, going no further than necessary to protect the employer’s legitimate business interests.

The High Court then went on to assert as follows:

“The garden leave clause which is included in the contract exists to cater, among other matters, for a situation where [the employer] has concerns about an employee’s conduct (e.g. harvesting client information, or engaging in deceptive behavior), and so chooses to restrict the employee’s duties during the notice period. On the assumption that such concerns have reasonable foundation, it would not then be unreasonable to enforce the full period of the post termination restrictions.” (Paragraph 191)

Continue reading “High Court Judgement On Restrictive Covenants & Garden Leave”

May 21, 2020February 2, 2021 by Duane Morris London

High Court Rules On The Effect Of Confidentiality Clauses In A Settlement Agreement

By Nic Hart

21.05.2020

The High Court have held in Duchy Farm Kennels v Steels that an employer cannot avoid paying out on a settlement where an employee is in breach of a confidentiality clause, unless confidentiality is genuinely a condition of the agreement.

Here, the employer agreed to pay the employee a settlement sum in instalments in full and final settlement of the employee’s employment tribunal claims. The COT3 agreement also included:

a clause under which the parties agreed to treat the fact of and the terms of the agreement as strictly confidential (‘the confidentiality clause’); and
a warranty that the employee had not previously disclosed the facts and terms of the agreement to any other person.

The employer subsequently did not pay the final instalment, and the (now former) employee issued proceedings for payment. The employer sought a declaration that the sums were no longer recoverable on the basis of breach of the confidentiality clause in the agreement. Continue reading “High Court Rules On The Effect Of Confidentiality Clauses In A Settlement Agreement”

May 13, 2020February 2, 2021 by Duane Morris London

COVID-19: UKGov Holiday Pay and Entitlement Guidance

By Nic Hart

13.05.2020

This UKGov guidance outlines how holiday entitlement and pay operate during the coronavirus pandemic. It is designed to help employers understand their legal obligations, in terms of workers who:

continue to work
have been placed on furlough as part of the government’s Coronavirus Job Retention Scheme (CJRS)

This guidance should not be treated as legal advice. Employers and workers should always check individual contracts and if necessary seek independent legal advice.

Holiday entitlement

Almost all workers, including zero-hour contracted workers and those on irregular hours contracts, are legally entitled to 5.6 weeks’ paid holiday per year. The exception is those who are genuinely self-employed. Continue reading “COVID-19: UKGov Holiday Pay and Entitlement Guidance”

May 12, 2020February 2, 2021 by Duane Morris London

Staying ‘COVID-19 Secure’: Analysing UKGov’s Back-To-Work Guidance

By Nic Hart

Following on from the Prime Ministers statement on Sunday evening (May 10^th), setting out the next phase -Stay Alert- there was a general reaction of uncertainty about how this will translate for employers and employees in practical terms.

In the time since the Prime Ministers statement we have now had a number of Guidance documents released regarding how workers will be kept safe, which is fundamental to implementing a return to work which will have industry and union support. I have given an overview of the new Guidelines and Guidance below, however I am aware that there will be sector specific queries as this Guidance is implemented which I am happy to discuss as required.

The first of the guidance was the Government paper- OUR PLAN TO REBUILD: The UK Government’s COVID-19 recovery strategy, published yesterday -May 11^th, which dealt with the work place in general terms. This advised that from Wednesday May 13^th and for the “foreseeable future”; Continue reading “Staying ‘COVID-19 Secure’: Analysing UKGov’s Back-To-Work Guidance”