Legal Update

Find analysis and commentary on the latest legal updates relevant to umbrella companies, contractor accountants and the professional employment services sector, brought to you by the commercial law firm, Brabners LLP.


Case Update – ECHR finds that covert surveillance cameras breach employees’ privacy rights

Date of Issue: 31 January 2018

In the case of Lopez Ribalda and others vs Spain, the ECHR upheld the claims by a majority, confirming that the Spanish Courts had failed to strike a fair balance between the employees’ rights to privacy and their employer’s right to protect its property as well as considering what is in the public interest. Reflecting on this case, Brabners LLP considers this in the context of UK data protection law when using camera surveillance in the workplace.

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Dismissal unfair where employee could not provide right to work documents

Date of Issue: 20 December 2017

The Employment Appeal Tribunal has found in a recent case that the dismissal of an employee was not fair where the employee in question was not subject to immigration control but could not provide any documentation evidencing his right to work in the UK.

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Holiday Pay Update

Date of Issue: 5 December 2017

The European Court of Justice’s findings support holiday accrual rolling over indefinitely and being paid for on termination where a worker has been deterred from taking their paid holiday.

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Uber – the appeal verdict is in, and it’s not good news for Uber!

Date of Issue: 21/11/17

Brabners LLP take a look at Ubers lost appeal to have the tribunal decision which classified two Uber drivers as workers overturned
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Fairness of a Dismissal: Evidence of the Decision Maker’s Motivation and Knowledge is key!

Date of Issue: 8/11/17

A recent case has confirmed that the fairness of a dismissal should be judged by what the decision-maker knew at the time of the decision and not what they should have known. In the whistleblowing case, Royal Mail Ltd, v Jhuti, the Court of Appeal decided that an employee could not have been automatically unfairly dismissed for making a protected disclosure (i.e. whistle-blowing) if the person who made the decision to dismiss was not aware of or motivated by the whistleblowing.

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Employer Investigations; Useful input from the Employment Appeal Tribunal on referring to previous incidents

Date of Issue: 25/10/17

The recent case of NHS 24 v Pillar considered whether it had been unfair for an investigation into an employee’s misconduct to include earlier incidents of misconduct that had not resulted in any disciplinary action. The Employment Appeal Tribunal (“EAT”) confirmed that the inclusion of previous similar incidents in an investigation into the employee’s misconduct did not render the dismissal unfair.

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Worker or Self Employed? The Gig Economy Battle Continues

Date of Issue: 10/10/17

Brabners LLP looks at two recent cases which address the issue of Worker vs Self Employed as the battle continues in the gig economy.

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Claimants do not bear the initial burden of proof in discrimination cases

Date of Issue: 30/08/17

Employment law experts Brabners LLP discuss the burden of proof provisions for discrimination claims set out in section 136(2) and (3) of the Equality Act 2010 (EqA 2010).

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Regular voluntary overtime – EAT confirms that it must form part of the holiday pay calculation

Date of Issue: 08/08/17

The recent Employment Appeal Tribunal (EAT) decision in Dudley Metropolitan Borough Council v Willetts and others is the latest in a swathe of recent holiday pay cases underpinned by one key principle – a worker’s holiday pay must reflect the worker’s normal remuneration. The EAT has now confirmed that voluntary overtime can count towards holiday pay and normal remuneration where they is sufficient regularity.

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Matthew Taylor Report

Date of Issue: 26/07/2017

Brabners LLP ask: Is it a plan setting out a ‘fairer’ system of work or well-worded bluster with questionable impact?

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At what point in time are restrictive covenants judged?

Date of Issue:  12/07/17

This week, employment legal experts Brabners LLP discuss restrictive covenants, This is an important issue for all employers, but particularly those who have employees that enter into restrictive covenants and are then subsequently promoted.

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Will a worker’s paid holiday entitlement carry over to subsequent years if they did not take such holiday because they would not have been paid for it?

Date of Issue: 27/06/17

In the case of King v The Sash Window Workshop Ltd and another (‘‘King’’), the Advocate General of the European Court of Justice (‘‘ECJ’’) has voiced his opinion on whether a worker should be entitled to be paid at the end of their contract for any periods of accrued annual leave where that worker had been dissuaded from taking such leave because he/she would not have been paid.

Brabners take a look at the background and facts on this case, the opinion of the Advocate General of the ECJ, and more significantly, what the implications could be for the gig economy.

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Defence of unfair dismissal claims because of whistle-blowing – is an employer’s belief that the whistle-blowing disclosure was not legally protected relevant?

Date of Issue: 14/06/17

In this article, our employment legal experts Brabners look at a whistleblowing dismissal case, Beatt v Croydon Health Services NHS, in which the Court of Appeal decided that an employer cannot escape a finding of automatically unfair dismissal if it genuinely believes that the employee’s disclosure was not protected.

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EAT confirms that a series of deductions is broken by gaps of three months or more!

Date of Issue: 31/05/17

In this article, employment legal experts Brabners examine the outcome of the holiday pay legal case: ‘Bear Scotland Ltd v Fulton and another’.

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Worker Rights Upheld – Court of Appeal Dismisses Appeal from Pimlico Plumbers

Date of Issue: 22/02/17

The Court of Appeal has handed down its judgment in Pimlico Plumbers & Charlie Mullins v Gary Smith.

Dismissing the appeal, the Court of Appeal upheld the Employment Appeal Tribunal’s decision that Mr Smith was a worker and not a self-employed contractor.

This is the highest court to consider such a case and the ruling will no doubt be closely read by others with similar disputes.  Whilst each case will depend on its own facts, the above case has provided some useful guidance regarding the personal service element of the employment status tests and how the right of substitution is likely to impact on this.

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High Heels and Workplace Dress Codes

Date of Issue: 08/02/17

The issue of workplace dress code is in the news again. As you may have seen, Nicola Thorp’s story received widespread media coverage when she arrived at work, as a receptionist, wearing flat shows and was sent home without pay by her agency for failure to comply with its dress code. The dress code required women to wear shows with heels of between two and four inches at work.

In this legal update, Brabners explain what action Ms Thorp took following this incident and provide guidance to employers who impose rules on workplace uniforms, particularly where those uniforms differ for men and women.

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BEIS Inquiry into Future of the World of Works & Rights of Workers

Date of Issue: 24/01/17

In October 2016, the Business, Energy and Industrial Strategy (BEIS) Committee launched an inquiry into the future of the world of works and the rights of workers. In this issue of FCSA News, Brabners look at the response from The Law Society and the recommendations it has put forward.

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Disclaimer: These articles are for general guidance purposes only and should not be used for any other purpose. The articles listed have been written by Brabners, unless otherwise stated, and reproduced with their permission by FCSA. Brabners is a Limited Liability Partnership.