Nic Hart – Page 2 – Duane Morris London

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

High Court Judgement On Restrictive Covenants & Garden Leave

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”

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

Employee Refusal To Return To Work in face of COVID-19 ‘Threat To Safety’ – What Is Your Response?

By Nic Hart

01.05.2020

The effects of the Coronavirus pandemic on the workplace continue. It is undeniable that the potential litigation arising out of COVID-19 will be far reaching and there will be several areas that Employers need to consider now and when the return to work phase commences in earnest.

In a matter of months the Coronavirus pandemic has not only changed the way millions of employees work but also the way they may now view the work place, particularly how safe they feel within their workplace.

Health and Safety claims may become a real issue for employers as employees either leave or propose to leave, refuse to return to work or take (or propose to take) appropriate steps to protect themselves or others from what they believe is serious and imminent danger from infection. Continue reading “Employee Refusal To Return To Work in face of COVID-19 ‘Threat To Safety’ – What Is Your Response?”

April 30, 2020February 2, 2021 by Duane Morris London

COVID-19 Job Retention Scheme – Summary of Updates to UK Gov Guidance

By Nic Hart

30.04.2020

Whilst I am very mindful of furlough fatigue, there have been further updates to the Government Guidance on The Coronavirus Job Retention Scheme – both How to Claim (short form and long form) and the Guidance. None of these have substantively changed but there are points to note in each, which are as follows.

The How to Claim (short form) deals with some of the practicalities of claiming. For those yet to do so please note that you need to submit your claim in one session – you cannot save it and return later. Sessions will time out after 15 minutes of inactivity.

There has been guidance given on what steps to take following a claim;

keep a copy of all records, including:
- the amount claimed and claim period for each employee
- the claim reference number for your records
- your calculations in case HMRC need more information about your claim
tell your employees that you have made a claim and that they do not need to take any more action
pay your employee their wages, if you have not already.

It must be stressed that Employers should record and retain documentation at all stages of the furlough process, both to be compliant with the requirements of the Treasury Direction but also to ensure that if there is any audit undertaken by HMRC they have the requisite records set out in the Guidance. Continue reading “COVID-19 Job Retention Scheme – Summary of Updates to UK Gov Guidance”

April 20, 2020February 2, 2021 by Duane Morris London

They think it’s all over – it is now! COVID-19: Furlough and Holiday Update April 20th 2020

By Nic Hart

20.04.2020

Good evening. I am hopeful that this is the last “ COVID-19 UK Furlough” update you will receive…from me at least!

HMRC has now provided us with some much needed clarity on taking annual leave while on furlough. This has been an update to the Employees Guidance, not the Employers Guidance (as at the time of this email).

Put simply it states;

Continue reading “They think it’s all over – it is now! COVID-19: Furlough and Holiday Update April 20th 2020”

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

COVID-19: Job Retention Scheme UK Gov Guidance April 15th 2020

By Nic Hart & Liam Hutton

15.04.2020

Another week and another set of Guidance on the Coronavirus Job Retention Scheme has just been released today, April 15^th 2020.

In addition, there has also just been a Treasury Direction released this afternoon (April 15^th 2020).

UK Gov Updated Guidance

I will first deal with the 4^th Guidance issued by the Government. Details on this as follows.

Continue reading “COVID-19: Job Retention Scheme UK Gov Guidance April 15th 2020”

April 14, 2020February 2, 2021 by Duane Morris London

COVID-19: Job Retention Scheme UK Gov update April 10th 2020

By Nic Hart & Liam Hutton

20.04.2020

Last night the Government helpfully delivered Round 3 of the Guidance for employers (and employees) on the Coronavirus Job Retention Scheme.

Whilst it clarifies some areas and introduces new points, i.e. TUPE it remains silent on the issue of Annual Leave. Please find below an overview of the new Guidance. It is worth reading in its entirety and I attach a copy of the same with the new areas noted in red and highlighted.

Continue reading “COVID-19: Job Retention Scheme UK Gov update April 10th 2020”

April 3, 2020February 2, 2021 by Duane Morris London

Family Leave and Furlough

By Nic Hart & Liam Hutton

03.04.2020

The UK Government guidance sets out the employers obligations for family leave and the ability to claim for enhanced (earnings related) contractual pay through the scheme. As below;

Individuals who are on or plan to take Maternity Leave must take at least 2 weeks off work (4 weeks if they work in a factory or workshop) immediately following the birth of their baby. This is a health and safety requirement. In practice, most women start their Maternity Leave before they give birth.

If your employee is eligible for Statutory Maternity Pay (SMP) or Maternity Allowance, the normal rules apply, and they are entitled to claim up to 39 weeks of statutory pay or allowance.

Employees who qualify for SMP, will still be eligible for 90% of their average weekly earnings in the first 6 weeks, followed by 33 weeks of pay paid at 90% of their average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate is currently £148.68 a week, rising to £151.20 a week from April 2020.

If you offer enhanced (earnings related) contractual pay to women on Maternity Leave, this is included as wage costs that you can claim through the scheme.

The same principles apply where your employee qualifies for contractual adoption, paternity or shared parental pay.

Continue reading “Family Leave and Furlough”