David Whincup

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Clarity covers a multitude of sins – Court of Session restores order to settlement agreement waivers (UK)

Back in October 2022 we reported here on the EAT’s decision in Bathgate -v- Technip UK Limited. This was a particularly unnerving ruling to the effect that settlement agreements could not cover claims yet to arise because of the requirement under section 147 Employment Rights Act that such agreements must relate to “particular claims”. The … Continue Reading

When making reasonable adjustments is a real trial (UK)

Everyone knows that if there is something about a job which causes a disabled employee particular difficulties with it, the employer is under an obligation to make reasonable adjustments to the role to reduce or remove that disadvantage.  But suppose that there are no adjustments to the role which can be made.  Does that duty … Continue Reading

When the ET won’t bite back – limits on strike out-powers (UK)

Rule 37 of the 2013 ET Rules of Procedure contains the Tribunal’s nuclear deterrent, the power to strike out part or all of a claim or defence. That big red button can only be pushed for a small number of specified reasons including (for today’s purposes) Rule 37(b) that the manner in which proceedings have … Continue Reading

Revisions to statutory dismissal and re-engagement Code provide welcome simplification (UK)

This week saw the issue of what will probably be the final version of the Government’s statutory Code of Practice on dismissal and re-engagement.  This follows the consultation on an earlier version which we covered here.  The new Code comes accompanied by some Guidance which is an unusually, in fact disconcertingly, helpful summary of the … Continue Reading

When the Employment Tribunal bites back (and when it doesn’t) (UK)

Two recent cases on how Employment Tribunals should handle the inappropriate conduct of proceedings by claimants have shed some useful light on their more punitive powers.  Both decisions made clear that the ET is far more interested in getting to a fair trial of the issue despite such conduct than in thumping claimants because of … Continue Reading

Employment tribunal fees consultation, V.2 – yes but why? (UK)

The ancient art of fiddling while Rome burns is obviously still flourishing in government, as witness the release last week of a new consultation paper on fees for Employment Tribunal claimants. My colleague Alexander Bradbury has the official line here. We have been this way before.  The ET started charging claim and hearing fees in … Continue Reading

Pre-nups in employment contracts – not a marriage made in heaven (UK)

In its judgement in Zabelin -v- SPI Spirits and Shefler this month, the Employment Appeal Tribunal has offered a refresher course on some important questions around protected disclosures, contracting out of statutory rights and when the Acas Code applies. The background facts are relatively simple. Zabelin worked for SPI which is owned by Mr Shefler. … Continue Reading

Does failure to prevent sexual harassment lead to directors exposing themselves? (UK)

In the normal course, the question of whether there is any interplay between the new duty to take proactive steps to prevent sexual harassment on the one hand and section 172 Companies Act 2006 on the other would be a bit of a downer at your Christmas dinner.  However, if you are a director then … Continue Reading

Knew this would happen, Part 3 – draft Acas code fails to plug holes in predictable working patterns law (UK)

Last week saw the publication of the draft Acas Code of Practice for handling requests for a “predictable working pattern”.  When we previewed the draft Bill in February, we noted here Knew this would happen – entirely predictable problems with new working patterns Bill (UK) the lack of any definition of “predictable” despite the obvious … Continue Reading

“Getting the most out of the fit note”: new guidance for UK employers

Well, sort of.  Almost nothing has changed in this month’s new government guidance on fit notes over the previous versions.  You can receive a fit note digitally these days and (to reduce doctors’ workloads) a wider range of medical practitioners are now authorised to issue them, but officially that’s about it. That under-sells it, maybe … Continue Reading

Knew this would happen, Part 2 – predicted problems persist in working patterns legislation (UK)

Back in February I offered here some thoughts on the main practical problems implicit in what was then the Workers (Predictable Terms and Conditions) Bill.  It was a mess, missing explanations of key concepts and grossly over-engineered for its objectives. That makes it all the more depressing to report that it has now received Royal … Continue Reading

Acas Consultation shows direction of travel for UK flexible working changes

Twenty years on from the introduction of the flexible working regime, Acas is looking again at its statutory Code of Practice, last tweaked in 2014 and of course already largely overtaken since then by the seismic shift in working practices caused by ever-more capable IT, the pandemic lockdowns and industrial discord on the railways.  This … Continue Reading

New anti-bullying law proposals make grim reading all round for UK workplaces

So here we go again, another attempt to legislate against workplace bullying.  This is not the first – back in 2001 there was a Dignity at Work bill, a fantastically inept piece of drafting crippled alike by internal processes more complicated than the wiring diagram of a battleship and the inevitable (and as it turned … Continue Reading

The inexplicable not explained in UK government’s Response to non-competition consultation

If you are prepared to accept “bold” as a substitute for “reasoned and sensible”, then there is much to like in the government’s formal response to its 2020 consultation on restrictive covenants, which was finally published last month.  It is this which seeks to explain the thinking behind the proposal we covered here – to … Continue Reading

New post-Brexit DSAR guidance – still no bonfire (UK)

Back in March 2020 we reported here on some new guidance from the Information Commissioner’s Office concerning DSARs.  In particular, we looked at what it said about the employer’s rights not to comply with a DSAR to the extent that it was manifestly unfounded or manifestly excessive, and concluded that despite the superficially encouraging words … Continue Reading

A tip for your trouble – new rules for employers on treatment of gratuities and service charges (UK)

Employers in the hospitality, leisure and service sectors should be aware that the Employment (Allocation of Tips) Act 2023 has now completed the parliamentary process and will be coming into force at some point in 2024, most likely May.    This particular piece of legislation has been a long time coming – the suggestion was … Continue Reading

No sparklers in new employment law regulatory bonfire proposals (UK)

Of course it could just be coincidence, but scarcely hours after my post last week concerning the dearth of the employment law candidates for the Brexit red-tape bonfire, out pops a Gov.uk policy paper on “Smarter Regulation to Grow the Economy” containing the first five suggested victims. And what a woeful little bunch they are, … Continue Reading

Common sense briefly prevails in UK’s “taking back control of our laws” debate

Things have surely come to a pretty pass when it is front page news twice in two weeks that the Government has decided not to press on with doing something daft.  First, the abandonment of smart motorways and last week, reports that the Government has backed away from its original proposal to wipe all EU-sourced … Continue Reading

New UK ethnicity pay reporting guidance – why should you bother?

Last week the government issued its first official guidance on ethnicity pay gap reporting.  Somewhat unusually among gov.uk workplace guidance, it is prospectively a very useful read. To its immediate credit, for example, it accepts right up front that there can be many legitimate reasons for disparities in average pay between ethnic minority groups.  “It … Continue Reading

Dismissal without prejudice – fact or fiction? (UK)

It’s not generally too difficult to know when you’ve been dismissed.  Your P45 arrives, colleagues avoid eye contact and your entry pass stops working.  But sometimes it’s not so clear and where your statutory or contractual rights may hang upon it, you cannot afford not to be sure. In Meaker – v – Cyxtera Technology … Continue Reading

Knew this would happen – entirely predictable problems with new working patterns Bill (UK)

Last week the government voiced its support for the new Workers (Predictable Terms and Conditions) Bill, the endeavour of MP Scott Benton to combat “one-sided flexibility”, where “workers are on stand-by for work which never comes”, it says in the BEIS press release.  This is a belated by-product of the Taylor Good Work Report in … Continue Reading

Increased liabilities under new draft Code on dismissal and re-engagement – evidence is all (UK)

Back in November 20201 we reported here on some new Acas guidance on changing terms of employment through dismissal and re-engagement, and in November last year on the Government’s intention to issue a new statutory Code on that practice here. A first draft of that Code has now landed and we can exclusively report that … Continue Reading

Wedded to The Law – striking marital discrimination failure explained (UK)

As the next in our occasional series of posts about The Law, here is a new Employment Appeal Tribunal decision so morally unjust that even the Judge himself didn’t want to make it. Mrs Bacon was married to the majority shareholder of their joint employer, Advanced Fire Solutions Limited.  She was also employee, director and … Continue Reading

For the sake of argument  – EAT reviews without prejudice rules (UK)

Christmas being a season of peace on Earth and goodwill to all men, so they say despite all the evidence, here is a quick festive look at just how confrontational things have to become in order to constitute a dispute at law. The question is a surprisingly important one, since on the existence of a … Continue Reading
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