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2020 in upon us. Now is the time to refresh and remind yourself of what lies ahead this year and start to prepare for employment law changes which could affect you or your business (putting Brexit to one side!). Some of the key changes follow, effective 6 April 2020.

1. Written statement of terms to be provided on Day 1

Current law

Employees who have been continuously employed for more than one month must be provided with a written statement of terms and conditions of their employment within two months of commencing.

What is changing

All new employees and workers must be provided with a written statement on or before their first day of employment; a day one right. More detailed information will have to be included in the written statement, too. This includes: the hours and days of the week the worker/employee is required to work; whether they may be varied and how; entitlements to any paid leave; any other benefits such as healthcare, vouchers, lunch, etc; details of any probationary period; and details of training provided by the employer. If it has not been done already, employers should start preparing new contracts for new recruits from 6 April 2020.

Read more: 2020: Upcoming Employment Law Changes

Before looking into the proposals that have been introduced regarding no fault divorces, it is necessary to understand the current position of divorce law in England and Wales. It may come as a surprise to many that, as it stands, there is only one ground of divorce in England and Wales. This ground is known as irretrievable breakdown and it must be evidenced by one or more of five facts as listed in the Matrimonial Causes Act 1973:

1. Adultery
2. Unreasonable behaviour
3. Desertion
4. Two years of separation and consent
5. Five years of separation

The first three of these facts are fault-based and the last two facts concern separation over two of five years, respectively.

Focusing more on the fault-based facts, these have been subject to wide-spread criticism and have even led to the Ministry of Justice publishing a consultation paper in September 2018 seeking views on replacing the current system of divorce.

Read more: No Fault Divorce Proposals

In the recent case of WH Holding and another v E20 Stadium LLP [2018] EWHC 2578 (Ch), the High Court has reminded parties in a civil claim to be careful when redacting their disclosed documents.
What is redaction?

In a civil litigation claim, both parties have a duty of disclosure. This duty requires the parties to state that the document exists or has existed. The other party then has the right to inspect the document in question, unless:

  • The disclosing party does not have possession of the document;
  • The disclosing party has a right or duty to withhold inspection of the document;
  • The disclosing party considers inspection to be disproportionate to the issues in the case (but he must nonetheless state in his disclosure statement that inspection of those documents will not be permitted on the basis that it would be disproportionate to do so).

Read more: Redaction Reduction

Can dismissing officers be held personally liable for dismissal in whistleblowing claims? Yes, held the Court of Appeal in a landmark Judgment handed down yesterday afternoon, 19 October 2018, in the case of Timis and Sage v Osipov [2018] EWCA Civ 2321.

The Judgment effectively means that a claim for whistleblowing related dismissal can be brought as: (A) an automatic unfair dismissal claim against the employer (who is vicariously liable for its workers) and; (B) as a whistleblowing detriment claim against the individual decision makers personally. A detriment claim entitles a Claimant to claim compensation for “injury to feelings”, which is not applicable in a straight unfair dismissal case.  The result of the Court of Appeal decision is that we could find more claims being brought against individual decision makers, like the Non-Executive Directors (“NED”s) in the Opisov case; for tactical reasons and to secure compensation awards against both the decision makers and the employer.
Mr Opisov, Chief Executive Officer of International Petroleum Limited (“IPL”), was dismissed without notice following disclosures by him about issues relating to corporate governance. Two NEDs at IPL played key roles in the decision to dismiss Mr Osipov.

Mr Opisov brought a successful whistleblowing claim for detriment and unfair dismissal in the Employment Tribunal against IPL and both NEDs. He was awarded over £1.7 million as compensation. The Judgment found that the NEDs were jointly and severally liable for the substantial damages award, along with the employer IPL.

The two NEDs appealed to the EAT. They argued that they should not be held personally liable for the detriment of dismissal and that the claim could only be pursued against the employer, IPL. They also argued that any compensation should be limited to losses pre-dismissal. The EAT rejected their arguments and upheld the Tribunal’s original decision. It held that the NEDs, as managers who had played important roles in the decision to dismiss Mr Opisov, were liable personally. It also found that Mr Opisov could claim post dismissal losses flowing from his dismissal. The NEDs appealed again, to the Court of Appeal.

The Court of Appeal has upheld Mr Opisov’s claims, agreeing with the EAT. It was noted that, for example, individual liability is already in place for discrimination claims under the Equality Act 2010, where dismissal is on the ground of a protected characteristic.
What does it mean?
The Osipov decision may be further welcome news for employees, confirming that claims can be brought against individual decision makers in respect of whistleblowing-related dismissals, on the basis that they have personal liability.

The case illustrates significant risks for employers, which should be taken into account. A claim for whistleblowing detriment can include dismissal and result in significant awards of compensation. Given this increased risk of claims (against individuals who the employer is vicariously liable for), employers should ensure that they have appropriate whistleblowing policies in place and that decision makers are well trained to recognise whistleblowing issues and to deal effectively with whistleblowing allegations.

Thanks to medieval law, landowners of property within the parishes of Anglican churches built before 1536 can be held liable for their share of the costs of repairing or replacing the local parish “chancel”, namely the area around the altar in a church.

There is no limit on the sum that the Parochial Church Council (“PCC”) can claim from homeowners for chancel repair.  In a landmark case in 2003, a homeowning couple were ordered to pay the PCC £95,000 towards chancel repair and the PCC’s legal costs of around £250,000 for the lengthy legal battle, which concluded in the House of Lords.

Prior to 12 October 2013, a landowner could be pursued by the PCC for chancel repair liability, even if they had no knowledge of its existence.Churches did not have to protect their right to claim for chancel repair; it was automatic. Consequently, conveyancers simply insured against chancel repair liability, while the government sought to repeal the ancient law to make it harder for the PCC to claim funds from landowners.  The law was changed on 13 October 2013.

Since this date, churches have been required to protect their interest if they want to enforce liability against those purchasing land within their parish. This change in law was supposed to protect new buyers by making them aware that they could be held liable for chancel repair. Unfortunately, as highlighted further in this article by Jennifer Sole and Saskia Gates, with assistance from intern Arshid Mahmood, this objective has not been achieved conclusively and liability insurance may still be necessary.

Read more: Chancel repair liability – has the draconian tithe law expired at last?

The law implies a number of terms into contracts of employment to provide protection for both employers and employees. Some common implied terms are set out below:
Employers’ duties Employees’ duties
Duty to indemnify employees Duty to give personal service
Duty to take reasonable care of the employee’s safety and working conditions Duty to obey reasonable orders
Duty of mutual trust and confidence Duty of reasonable care and indemnity
Duty to take reasonable care in giving references Duty of fidelity and good faith
Duty to notify on termination without notice Duty not to make a secret profit
Duty to give reasonable notice Not to conflict any personal interest with their duty of fidelity
Duty to comply with the employee’s statutory rights Duty of mutual trust and confidence

The recent Supreme Court case, Newcastle upon Tyne Hospital NHS Foundation Trust v Haywood, concerned the date at which notice of termination by post was deemed to be effective in the absence of an express term.
Facts: Mrs Haywood had been an NHS employee for over 30 years and in early 2011 she was notified that she may be made redundant. Mrs Haywood’s contractual notice period was 12 weeks and her 50thbirthday was fast approaching. If Mrs Haywood’s employment was terminated following her 50thbirthday she would been entitled to a significantly larger retirement pension than she would be if her employment terminated before that date.
It was calculated that if notice of termination was provided to Mrs Haywood on or after the 27 April 2011; her notice would expire on or after her 50thbirthday. The Trust sent a letter of termination on 20 April to both Mrs Haywood’s husband’s email address and by recorded delivery to her home.
Mrs Haywood was away on holiday from 18 April until 27 April and so was absent when the letter delivery was attempted. The letter was subsequently sent to the Post Office for collection. Mrs Haywood’s father-in-law collected the letter on 26 April and Mrs Haywood read it upon her return on 27 April.
The Trust argued that the notice commenced on the date the letter was delivered (26 April), however, Mrs Haywood claimed that it ran from the date the notice was read (27 April).
Both the High Court and Court of Appeal ruled in favour of Mrs Haywood and so the Trust appealed to the Supreme Court.
Legal issue: On which date did Mrs Haywood’s notice period start to run?
Finding: The Supreme Court held that the notice period starts to run from the date the employee receives the letter of dismissal and either reads it or has had reasonable opportunity to do so. In this case, therefore Mrs Haywood’s notice ran from 27 April.
Implication: Although some contracts of employment set out how notice of termination will be provided and when it will be deemed received, many do not. They should!
In the absence of an express term the above outlined implied term will take effect. What is considered ‘reasonable’ will turn on the facts of each case.
If an employer considers that the implied term will cause issues, it should make express provisions in the contract, both as to the methods of giving notice and as to the time at which such notices are deemed to have been received.
Additionally, if employers are keen to dismiss an individual prior to a certain date for contractual purposes, they should consider carrying out the dismissal in person (followed by a written confirmation) to ensure that notice starts to run from that date.
Few people will have missed the Gender Pay Gap Reporting headlines in recent months. But it seems that it wasn’t just a few companies who failed to submit their pay data before the statutory deadline. Some 1,500 companies failed to submit their data on time. Has your company complied? Will companies that haven’t face sanction?
Either way we now have, for the first time, access to a substantial amount of pay data from public and private companies. Now the dust has settled, what can we take from it (or the lack thereof)?

The requirement

Under legislation introduced last year (the Equality Act 2010 (Gender Pay Gap Information) Regulations) 2017) all companies, voluntary organisations and public-sector bodies based in England, Scotland and Wales (but not Northern Ireland) with more than 250 employees have to report the difference in average hourly pay between men and women. The pay gap is expressed as a proportion of men’s earnings. This is the first requirement of its kind and a fairly big shake-up in in what has historically been a very private and guarded matter.

The pay data published

More than 10,600 employers published their pay data. According to the Office for National Statistics, the national average is 18.4%. However, that’s not the full story. Partners and LLP members are not covered by the reporting requirements. Inclusion of this data could make the gap much higher. The data confirms substantial pay gaps in certain industries, such as financial services, aviation and construction. This might be for many reasons but is likely to include: more men at the top; a failure to recruit women into certain levels of the business; or discriminatory practices in pay and promotion. The figures do need to be broken down and understood, for example at Boux Avenue the high pay gap may be because a lot of its female employees are shop workers, whereas those in head office and running the business are more likely to be male:
  1. Ryanair Ltd reported a pay gap of 71.8%
  2. HSBC reported a pay gap of 59%
  3. Boux Avenue reported a pay gap of 75.7%
The Government has introduced new measures coming into effect from 6 April 2018 which clarify the position in respect of employer’s liability to pay tax and national insurance contributions on payments made on the termination of employment.

The new provisions apply to termination payments where the employee’s termination date falls on or after 6 April 2018.

The new legislation assesses and divides payments into two categories:
  1. Earnings; and,
  2. All other payments.

Read more: New Measures for Tax and NI on Termination

Most properties in the UK are required to be rated on a scale from A – G, with G being the least energy efficient. The rating of a property is detailed in the Energy Performance Certificate for that property. The relevant legislation is the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (“the Regulations”), which originate from the Energy Act 2011 and introduced the minimum energy efficiency standard.
The Regulations make it unlawful for a landlord to let a property which is considered to have a “sub-standard” energy efficiency, that being those properties rated as either a F or G.

Read more: Warning: Minimum Energy Efficiency Standards for Commercial and Residential Landlords from 1 April...

A stark warning to businesses for backdated holiday pay claims

The European Union (CJEU) judgment in the case of King v Sash Window Workshop Limited is highly likely to have profound implications for businesses benefiting from the so-called “gig economy”, who engage with self-employed workers. It exposes businesses to significant backdated holiday pay claims.    

Read more: Holiday pay for the “self-employed”

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