In East Coast Main Line Company Limited v Mr J Cameron the questions considered by the Employment Appeal Tribunal were whether the judgment of the Employment Tribunal, based on the facts, was perverse, and whether the Tribunal should have taken into account Mr Cameron’s long service when considering his claim for wrongful dismissal. Mr Cameron…
Like all Employment Law Solicitors, and like a very large number of employees and business owners alike, I’m royally fed up of the word ‘furlough’. A few weeks ago, it was a word I barely used and had to concentrate to spell. Nowadays, I can touch type it to perfection after typing it at least…
Crikey! The world is changing before our eyes. Only a few weeks ago, a typical commute to work on the train was an environment full of people in various states of boredom, tiredness or, alternatively, being noticeably transfixed with their phones or Kindles. Now, in the midst of the coronavirus outbreak, it is a place…
I’ve not written much about coronavirus previously because, frankly, whilst my blogs tend to be topical, it felt overly opportunistic. However, in the last 7 days, the number of calls and emails I’ve received from concerned employers and, in recent days, from employers with fears of members of staff displaying potential symptoms, has sky-rocketed. Overall,…
IR35. If you know what the code refers to, you’re probably stifling a little groan. If you don’t, then I have the narrative role of explaining that IR35 legislation seeks to allow HMRC to demand that individuals who are ’employees in all but name’ as treated as if they are an employee (rather than self-employed)…
Hello and welcome to our eighth Employment Law Snippet article. As usual, this article aims to explore and discuss how a quirky topic might affect employees and employers alike. This week we will be looking at Christmas!! Now, let’s get some brief, festive-related confessions out of the way. Amongst other things, I’m guilty of the…
On 21 July (oddly given that it was a Sunday) the Government announced what it described as “measures to prevent misuse of confidentiality clauses in situations of workplace harassment or discrimination. Frankly the press releases are light on detail. However, the four main changes are as follows:
- Employers will have to make clear the limitations of a confidentiality clause, in plain English, within the settlement agreement and in the form of a written statement for the employee. In other words there will have to be a notice to the employee within the agreement which clearly explains what the clause does not cover.
- Current legislation will be extended so that it will be a requirement for all individuals signing an NDA (whether or not contained within a settlement agreement) to obtain what is described as enhanced independent legal advice, presumably at the employer’s expense. This is potentially interesting because it raises the possibility that employees may need to obtain such advice at the commencement of or during employment, perhaps even before the commencement of employment. Much will depend on the definition of what constitutes a regulated NDA and that information, perhaps unsurprisingly, has not been published.
- All NDAs must make clear that the restrictions will not prevent the employee from disclosing the otherwise protected information to the police, regulated care and health professionals, social workers and, interestingly, legal professionals. As matters stand, most settlement agreements include a confidentiality clause which provides that not only the terms but even the existence of the agreement must be kept confidential, save for immediate family members and relevant professional advisers (i.e. those advising the employee concerning the agreement).
- Enforcement measures will introduced to deal with settlement agreements and written statements of employment particulars that do not comply with the regulations, including that non-compliant NDAs will be legally void.
Five years ago I wrote an article for this blog which was entitled “Don’t rely on a court to fix a ‘defective’ restrictive covenant“. In doing so I was merely using a recent case to demonstrate the approach taken by courts to restrictive covenants in employment contracts, viz. that they have to be precise and correct in all respects, failing which they are likely to be struck out in their entirety. That’s why you often see a sub-clause at the end of series of restrictive covenants which states something along the lines that if any covenant or part thereof should be found to be unenforceable, that shall not invalidate the remainder: an attempt to pre-empt the likely outcome if the clauses are subjected to court scrutiny.
Restrictive covenants in employment contracts, and particularly those which seek to restrict a former employee from joining a competitor, can be difficult to enforce in practice. That’s because they are a form of restraint of trade which, on the face of it, is contrary to public policy. However, courts have acknowledged over the years that employers have legitimate business interests which they ought to be able to protect, but only to the extent that it is reasonable to do so. Consequently, such restrictions should be reasonable in area and duration, with the restrictions providing no more protection than is reasonably necessary. the received wisdom has been that if they go too far, they are likely to be struck out altogether. Since court proceedings in this field can be cumbersome, time-consuming and very expensive, often with no guarantee of a successful outcome and with an opponent who might not be in a position to pay costs if ordered to do so, employers have tended to be understandably wary about litigating and have instead relied on the deterrent factor of including such clauses in contracts.
There has been a good deal of litigation concerning restrictive covenants, very often considering what restrictions are reasonable in terms of their scope and application. However, it has been over 100 years since restrictive covenants have been considered by our most senior court. That is until the judgment of the Supreme Court in the case of Tillman v Egon Zehnder Limited, which was handed down on 3 July.
The Court of Appeal has this week ruled that employers must consider any ‘regular’ voluntary overtime when calculating holiday pay, in addition to ‘non-guaranteed’ overtime, upholding the earlier decision of the Employment Appeal Tribunal (EAT).
In Flowers and others v East of England Ambulance Service NHS Trust (2017) the Claimants, all employed by the East of England Ambulance Service NHS Trust (in a variety of roles) initially brought their claim to the Bury St Edmunds Employment Tribunal alleging that unlawful deductions had been made from their holiday pay.
They stated that the calculation of their holiday pay should account for overtime in two categories – non-guaranteed overtime, and voluntary overtime. The difference between the two in this case is that non-guaranteed overtime occurs when the employee is carrying out a task which must be completed after the end of the shift (for example dealing with an emergency services call for an ambulance), whereas voluntary overtime would be classed as additional shifts which the Claimant can choose to volunteer for (there was no requirement or expectation for them to do so however).
Later today, the review embargo lifts on the biggest video game since Grand Theft Auto 5. Even those of you not of a video gaming persuasion have no doubt noticed the constant advertisements online, on the TV and on the side of buses for “Red Dead Redemption”.
What is Red Dead Redemption 2? Well, it’s an adventure game set in the Wild West with the almost mandatory mix of horse chases, gun-slinging and exploring a vast desert-esque landscape.
So, why is it such a big deal? One word: Rockstar. Rockstar are the equivalent of Apple 10 years ago. By that, I mean that nearly every product they make receives rave reviews (at least 95% on average) and is known for its brutal, gritty storytelling. As an example of their attention to detail, in some shape or form, work on this game has been ongoing for eight years with a budget larger than many Hollywood movies!
So, surely, eight years is more than enough to make a good game. Well, yes. But Rockstar want to make ‘extraordinary’ games not just good or very good ones. And this, unfortunately for them, has led to a lot of media controversy over supposedly ‘voluntary’ overtime and the issue of ‘crunching’.
Let’s tackle the media controversy first.