The High Court has held that a 12 month non-solicitation restrictive covenant was enforceable. 

What does this mean?

The covenant was upheld because the employer was able to show that it had a legitimate interest to protect and that the restraining covenant was no wider than reasonably necessary to protect that interest. The covenant was in line with the employee’s expectations when he joined the company as it was similar to a covenant contained in the contract he had with his previous employer which he had observed after taking legal advice. A 12 month period, the Court said, was common in the industry in which the employee worked and reasonable in that context. The purpose of the 12 month period was to give time for a relationship to be built up between the company’s clients and the employee’s replacement. The Court did, however, say that a longer restriction would not have been enforceable.

What should employers do?

Employers should be aware that they’ll have to justify the point and extent of any restrictive covenants if they need to enforce them. They may need legal advice on the drafting of any such covenants.

Case reference: Romero Insurance Brokers Limited v Templeton and another

If you want help on this or any other employment law issue please call Russell Jones or the employment team on 01623 451111

We’re always here to help you when you’re thinking of starting your business.

As well as our commercial department advising on leases or property purchases, we can assist and advise on employment contracts and steps to be taken.

In addition we can advise that Acas has published a set of step-by-step guides aimed at helping small businesses succeed when they start employing staff. The guides cover recruitment, settling in new employees, the new employee’s contract, managing complaints at work, managing staff absence and how to get the best out of staff. Copies of the guides can be found here http://www.acas.org.uk/index.aspx?articleid=4231

Acas has also published a new guide on managing discipline which can be found here http://www.acas.org.uk/index.aspx?articleid=4005

The Department for Business Innovation & Skills  has also published an updated toolkit aimed at helping start-up business involved in recruiting their first staff. The toolkit includes information on setting pay, checking if someone has the right to work in the UK, getting employment insurance, contracts of employment and understanding tax requirements. The updated toolkit can be found here https://www.gov.uk/employing-staff

Please feel free to phone us  to talk you through start up.

You can call Russell Jones or any of the employment and commercial team on 01623 451111

The Government has announced plans to crack down on unpaid internship  abuse.

What does this mean?

The plans include the launch of a social media campaign and a student handout to raise awareness of the rights of interns and work experience students. The Government will also be encouraging individuals to report employers who are abusing National Minimum Wage (NMW) laws to HMRC, who is tasked with enforcing NMW laws.

If somebody on a work experience placement or internship is classed as a ‘worker’ under NMW legislation, then they are entitled to the NMW regardless as to their job title.

What should employers do?

To help employers who offer work experience, including placements and internships, the government has published detailed guidance which can be found here https://www.gov.uk/national-minimum-wage-work-experience-and-internships. The guidance includes a Worker checklist https://www.gov.uk/government/publications/national-minimum-wage-worker-checklist as well as examples, to help employers assess whether an individual is a ‘worker’ or not, explains the exemptions in the NMW rules relevant to work experience and provides guidance for employers when designing work experience placements.

If you need help on this or any other employment issue please call Russell Jones or the employment team on 01623 451111

From an employment law perspective the plans include:

•              giving businesses and charities an ‘employment allowance’ of £2,000 each year from April 2014 thereby reducing their national insurance contributions (NICs) bill;

•              introducing a General Anti-Abuse Rule for NICs, as well as for various other forms of tax. This is aimed at counteracting tax advantages arising from abusive avoidance schemes.

•              strengthening legislation to prevent the use of offshore employment payroll companies to avoid paying employer’s NICs;

•              removing the presumption that members of a Limited Liability Partnership are self-employed;

•              tightening up controls on illegal immigrants, including heavier fines for businesses that employ them;

•              enabling greater flexibility in the delivery of apprenticeships and involving employers more in designing and assessing them;

•              removing employment tribunals’ power to make wider recommendations when claimants win discrimination claims under the Equality Act 2010;

•              exempting from health and safety laws the self-employed whose activities pose no potential risk of harm to others.

If you need help on this or any employment law issue please call Russell Jones or the employment team on 01623 451111

The Equality and Human Rights Commission has published guidance for small businesses on how to prevent discrimination and avoid costly legal challenges. It has also published guidance on human rights issues for smaller businesses.

The first of the publications, ‘The Equality Act: Guidance for Small Business’ explains how the Equality Act 2010 relates to business operations and what businesses and employers  need to do to ensure that they stay within the law. It includes an explanation of legal definitions and practical advice aimed at helping businesses during recruitment and promotion processes.

The second of the publications, ‘A guide to business and human rights’ explains how smaller businesses should identify and manage human rights issues which may arise in their business operations.

Copies of the guidance can be found here

http://www.equalityhumanrights.com/advice-and-guidance/here-for-business/guidance-for-small-and-medium-size-businesses/

If you need help on this or any other employment issue please contact Russell Jones or the employment team on 01623 451111

The Government plans to relax the current criminal records checking scheme by filtering certain old and minor offences and cautions from checks.

What does this mean?

Under the Government’s proposals an adult conviction will normally be removed from a Disclosure and Barring Service (DBS) certificate if:

• 11 years have elapsed since the date of conviction,
• it is the person’s only offence and it did not result in a custodial sentence.

However, certain offences, including violent and sexual offences, will always be included and, if a person has more than one offence, then details of all their convictions will be included.

Adult cautions will generally be filtered out once 6 years have passed since the date of the caution (exceptions will apply for certain types of offences).

For those under the age of 18 at the time of the offence, convictions will generally be removed once 5.5 years have elapsed. Exceptions will apply for certain offences and where a custodial sentence was given or the individual has more than one conviction. Cautions administered to a young person will normally be removed if 2 years have elapsed since the date of issue (again exceptions for certain types of offences will apply).

For any advice on this or any other employment matter please contact Russell Jones or the employment team on 01623 451111

This is always a difficult and delicate  subject, whether at work or any where else so how do you approach it when it affects an employee and their performance?

Recently the Employment Appeal Tribunal has held that an obese employee who suffered from a multitude of symptoms was disabled.

What does this mean?

Obesity in itself does not automatically amount to an impairment for disability discrimination purposes, but the fact that someone is obese may make it more likely they are disabled and allow a tribunal to decide more readily that they do have a disability.

The Appeal Tribunal  overturned the original  decision on the basis that it was not the cause of Mr Walker’s symptoms that should be focussed on, but rather the effect.  Mr Walker’s health problems amounted to a disability, even though they had seemingly been caused by obesity which is not, in itself, a disability.

What should employers do?

When considering whether someone is disabled what is important is to consider the effect of the impairment, not how it is caused so take a careful view at any other health problems which might amount to a disability before taking any action.

Case reference: Walker v SITA Information Networking Computing Limited

If you want assistance on this or any other employment problem please  contact Russell Jones or our employment team on 01623 451111

The Employment Appeal Tribunal has held that whistleblowing laws protect former employees as well as current ones.

What does this mean?

Ex-employees who have blown the whistle on their former employer may be still be protected if they are badly treated as a result.

What should employers do?

Employers should always be careful how they treat staff, including, former staff, who have made what may be “protected disclosures”.

The case Onyango v Berkeley Solicitors decided that even if a protected disclosure (whistle blowing disclosure) was made after an employment contract was terminated, there can potential be protection afforded tot he employee, as the whistle blowing could have  a detrimental effect on the employee’s contract of employment.

If you need help on this or any other employment issue please contact Russell Jones or the employment team on 01623 451111

A while ago I posted about the possible introduction of fees to start cases in the  Employment Tribunal.

Since it’s inception the Tribunal has not charged fees to employees wanting to bring claims against their employers, sparking in some employers (and others)  minds the fact that spurious and very costly claims are made by employees in the off chance of getting a ‘commercial deal’  rather than seeking something that was truly justified.

There is no doubt that employers  facing a potential hefty legal bill for defending  claims of  more dubious background have  often paid out early knowing it’s  the cheaper option.

The Government have apparently come to the same conclusion   and have recently laid before Parliament the relevant papers to introduce fees for bringing a claim before the Tribunal.

Employers are hoping that these will slow down the more doubtful claims;  the fees being proposed are  £160 or £250 for issue of a claim  and £230 or £950 for a hearing fee,  (depending on the remedy being sought).

The unsuccessful party may be ordered to pay the fees at the end of the case, and this in itself may be a reason for an early and commercial view of the prospects of successfully defending a case, by both sides.

And just as a further issue, relief can be applied for by an applicant  so the fees themselves might not have the desired effect that employers, and apparently others,  are hoping for.

Will it slow down those claims put in ‘just to cause grief’?

Only time will tell but it means that both sides now need to have an early look at their cases before proceeding.

As previously advised, often the risk of a case, against an employer, and the costs associated with  it, can be dramatically reduced by early  and sensible intervention by the employer’s HR service or an external HR advice service.

We have for many years now  supplied such an HR service which is  supplemented by our online  HR portal provision, and many of our clients have praised the ease and affordability of this service and the portal software.

As always prevention is better than cure, but maybe if a ‘cure’ is needed the new fee structure might slow down and prevent the more hopeful and spurious claims from getting off the ground.

If you would like more help on this or any other HR or employment issue in your business, please contact Russell Jones or our employment team on 01623 451111

The Employment Appeal Tribunal has held that it is not reasonable to dismiss an employee at the request of a third party without considering whether the request is justified.

What does this mean?

If a client, or other third party, asks an employer to remove or dismiss an employee, the employer should consider whether such a request is justified before doing so. It may in some instances be appropriate for the employer to seek to persuade the third party to change its mind.

What should employers do?

Employers should always follow their disciplinary procedures before dismissing staff or taking steps short of dismissal. They should be able to show they have weighed up and made the decision themselves.

The issue was discussed and reviewed  in Bancroft v Interserve (Facilities Management) Limited

If you need help or assistance on this or any other employment problem please contact Russell Jones or the employment team  on 01623 451111