Employment Law E-Bulletin

July 2007

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This month's cases in detail

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'WITHOUT PREJUDICE' NOT ALWAYS PROTECTION

The principle of English law that negotiations to resolve a dispute are 'without prejudice' and cannot therefore be referred to in any subsequent court proceedings is long standing but two recent employment law cases have challenged the protection of 'without prejudice' status.

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CASES

The fine line between resignation and dismissal

The Sandhu v Jan de Rik Transport Ltd case is founded upon a very simple issue: was the appellant dismissed or did he agree to his own resignation?

The appellant, Mr Sandhu, was not faced with a 'resign otherwise be dismissed' situation nor did he choose to resign rather than be subject to disciplinary procedures. Mr Sandhu attended a meeting with his employers, fully aware of the allegations against, and discussed his departure from the company and a financial package to accompany it. Claims for unfair dismissal would have been founded if Mr Sandhu had been dismissed outright, but the negotiations for a severance package cast an altogether different light on the case.

Unfair Dismissal Compensation - Sick Employees

The EAT has handed down an important decision dealing with a calculation for a compensatory award for a constructively dismissed employee who had been off work sick. The issue was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.

Restrictions after Termination of Employment

Restrictive covenants clauses will need to be reviewed to ensure precision as a result of a case involving Beckett Investment Management Group Ltd (BIMG) and three financial advisers who left BIMG and set up in business.

This month's cases in detail

LEGISLATION

According to research by the Trades Union Congress about 850,000 Britons are missing out on time off as employers are making the most of a loophole in the working time regulations.

The Working Time (Amendment) Regulations 2007 removes the loophole and increases the statutory holiday entitlement to 28 days (5.6 weeks), with part-time employees given a pro-rata entitlement. Those employees who work 6 days a week would still have a 28-day cap on entitlement, though they would be allowed to negotiate this with their employer. The DTI estimates that this change will benefit as many as six million employees and workers, with the lowest paid, and part-time staff set to benefit most.

Most employers already pay 20 days holiday or more plus eight bank holidays, however some include bank holidays in calculating the 20 days, making the contractual holiday only 12 days. This is lawful, but is not considered best practice, and by increasing the minimum holiday requirement, employers are stopped from 'crediting' the bank holidays when calculating entitlement.

The change is to be implemented in two shifts. On 1st October 2007 there will be 24 days minimum holiday entitlement, and the remaining 4 days will be added on 1st April 2009, bringing employees entitlement of paid holiday up to 28 days. The changes do not mean that employees will be entitled to take paid holiday on the eight bank holidays each year. Whether a worker can be required to work on a bank holiday will depend on what their arrangements are with the employer. The employer may require them to work on the bank holidays but they will be getting extra holiday at another time. The option of making the actual bank holidays the additional holidays was looked at by the DTI, but the more flexible approach where there are no set days where the 8 extra days must be taken, and employees can receive time off another day was predicted to be less complicated, and cost less in administration.

EVENTS

Burnetts' Annual Employment Law Update - Thursday 18th October

Make your booking now for Burnetts' annual employment law update.

Time: 3.45pm – 6.30pm
Venue: The Library, Burnetts
Cost: £35 plus VAT

For details of this and other forthcoming seminars visit Burnetts' events' pages.

For further information on these or other employment law issues, contact our employment solicitors on 01228 552222.

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July 2007