Legal Practice Notes

ARCHIVED: This archived Practice Note examines international jurisdiction for employment disputes brought before 1 January 2021—that is, which court or tribunal should hear an employment claim where the worker is based overseas or the employer is foreign. Please note that, for proceedings commenced on or after 1 January 2021, jurisdiction is governed by the Civil Jurisdiction and Judgments Act 1982 ( CJJA 1982). For further detail, see Practice Note: International jurisdiction—the Civil Jurisdiction and Judgments Act 1982 in employment cases. The Note explores the effect of Brexit and IP completion day and reviews the pertinent provisions of the Brussels I (recast) regime that applied to proceedings issued before 1 January 2021. That framework remains relevant when interpreting CJJA 1982... Brexit impact From exit day (31 January 2020) the UK ceased to be an EU Member State; however, under the transitional terms in the October...

Artificial Intelligence in employment and human resources Artificial intelligence ( AI) is appearing ever more often across employment and human resources ( HR) settings. Its deployment now spans the full employment journey, from recruitment through monitoring of staff and performance oversight. The consequences for candidates and existing staff can be significant and far-reaching, particularly where AI informs choices about hiring or advancement. Use of AI by employers and HR professionals is set to expand further in the coming years. Applied wisely, AI can sharply reduce expenditure, streamline processes and tackle inefficiencies, release time so employees can concentrate on the core parts of their roles, and lessen human error. Asked to craft an opening for an ‘ Artificial Intelligence in employment and human resources’ piece, Chat GPT replied with the following: ‘ Artificial intelligence ( AI) has transformed many sectors and is...

The aim of this Practice Note is to outline the principal age discrimination issues that may emerge when designing and running different kinds of employee share schemes. It covers the core rules on direct and indirect age discrimination, highlights possible exemptions and justifications, and considers particular age-related points that can arise with employee share schemes. The emphasis is on how arrangements are structured and administered, viewed through the lens of age-related risks. It does so without straying beyond the share scheme context. Age discrimination—the basic principles The Equality Act 2010 ( Eq A 2010) provides the legal framework governing age (as well as other forms of) discrimination. In essence, two types of unlawful age discrimination are relevant: direct discrimination and indirect discrimination. There are also distinct notions of harassment linked to age and victimisation connected to age...

This Practice Note examines the matters connected to religious observance and festivals. It reviews the principal religious festivals and the kinds of issues observance may create in the workplace, including requests for leave, particular dietary and fasting needs, and workplace celebrations, as well as associated events and customs within teams too. It also looks at policies concerning religious observance at work. Relevant legal protections It is sensible practice for employers to recognise issues arising from employees’ religious observance, including those linked to religious festivals, as such awareness can help employers avoid risks that might result in legal liability if mishandled. The principal statutes employers should bear in mind are the Equality Act 2010 ( Eq A 2010) and the Employment Rights Act 1996 ( ERA 1996). Discriminatory conduct could also amount to a breach of contract, with potential liability for...

This Practice Note offers guidance for lawyers acting for whistleblowers in criminal investigations. For employment law aspects of whistleblowing, see: Whistleblowing—overview and, in particular, the Practice Notes: Entitlement to claim whistleblowing, Whistleblowing—protected disclosures, and Whistleblowing defences and exceptions. Advice on responding to a whistleblower when representing a company or organisation is set out in Practice Note: Dealing with a whistleblower in internal criminal investigations. To blow the whistle or not to blow the whistle? Employees who choose to speak up are protected under the Employment Rights Act 1996 ( ERA 1996) where the disclosure is a ‘protected disclosure’. For further detail on the statutory regime and what amounts to a ‘protected disclosure’, see Practice Note: Whistleblowing—protected disclosures. For those working in financial services, safeguards exist to ensure individuals raising ‘reportable concerns’ are not victimised. For more, see Practice Note:...

The position of an employee on a company's insolvency The default principle is that an employment contract is an agreement between the employer and the employee. Owing to its personal character, if either party changes, the existing contract would usually end. Were that always true when a company’s status alters because of an insolvency event, every employment contract would automatically cease. That is not always advantageous for either the workforce or the business, so employment terms can operate differently on insolvency. In practice, the treatment of an employment contract depends on the company’s specific circumstances, including whether it continues to trade. It also varies according to the particular insolvency process, as indicated below. Reference should be made to the relevant provisions of the Insolvency Act 1986 ( IA 1986) noted below. Employees’ positions are also protected, to a degree, by the Transfer of...

Time off for adoption appointments An employer, and where relevant a temporary work agency or hirer, must not unreasonably decline a request by an employee, or an agency worker where appropriate, who has been told by an adoption agency that a child is to be, or is expected to be, placed with them for adoption, to take time away from work to attend adoption appointments. There are two distinct forms of time off for appointments at work: Paid time off from work Unpaid time off from work Where two individuals with employee status (whether or not engaged by the same employer) have been notified by an adoption agency that a child is to be, or is expected to be, placed with them jointly for adoption, one will be entitled to paid time off to attend adoption appointments, and the other to unpaid time...

This Practice Note sets out the consequences of failing to adhere to the Acas Code of Practice on Disciplinary and Grievance Procedures. Both employers and employees must follow the fairness principles contained in the Advisory, Conciliation and Arbitration Service ( Acas) Code of Practice on Disciplinary and Grievance Procedures. The Code’s foreword further urges employers and employees to try to settle disciplinary and grievance matters at work before taking them to the tribunals. As this encouragement appears in the foreword rather than the main text of the Code, it is not a statutory obligation. Acas has also issued a guide to the Acas Code of Practice on Disciplinary and Grievance Procedures. Although that guidance carries no statutory force, tribunals may consult it where there is uncertainty about the meaning of the Code itself. Such references are made solely to aid...

While the Academies Act 2010 ( Ac A 2010) extends to Wales, the powers to establish new academies and free schools are limited to England in scope. Accordingly, this Practice Note is relevant to England alone and should be read on that basis, for the purposes considered here. Who is the employer? In academies and free schools, the employer is the trust (that is, the trustees) or a proprietor. By contrast, in maintained schools the local authority or the governing body is the employer. For detail, see Practice Note: Teachers and staff in maintained schools. For more on status, see: Status and worker categories—overview. For guidance on school types, see: School organisation and regulation—overview, and for staff in maintained schools, see Practice Note: Teachers and staff in maintained schools. For more on governing bodies, see Practice Note: School...

Employment laws in the Republic of Ireland, Great Britain and Northern Ireland have much in common, as all operate within common law systems and many contemporary employment statutes flow from European Directives. Even so, divergences do exist and are likely to widen. This Practice Note outlines several distinctions between Great Britain and the Republic of Ireland. Care is advised when handling matters in Northern Ireland, where the framework is becoming increasingly distinct from Great Britain. For details on the differences between Great Britain and Northern Ireland, see Practice Note: Northern Ireland employment law. Main areas of difference employment status categories leave entitlements qualifying period and remedies under unfair dismissals legislation redundancy entitlements protected conversations and settlement agreements employment tribunal procedures transfers of undertakings ( TUPE) ...

This ‘ How to’ guide sets out how to suspend an employee (or worker) for the purposes of an investigation. It explores the legal considerations that arise when an employer is contemplating a temporary exclusion from duties, potential alternatives, the entitlement to be accompanied, the timing and manner of any suspension, and who ought to implement it. It further reviews how long a suspension may last and the individual’s entitlements while suspended, including pay. The Practice Note also covers support for mental health throughout the process, actions to take when the suspension concludes, record-keeping obligations, and how a suspension might be challenged. A suspension is a period during which an employer requires an employee to step back from their usual role. For those who typically work on-site and/or visit customers, they will not attend their standard workplace while suspended. For home workers, it means not...

The overriding objective Central to the Employment Tribunal Rules of Procedure ( ET Rules) sits the ‘overriding objective’. Its purpose is to ensure employment tribunals ( ET) handle cases in a manner that is fair and just. The tribunal is required to give effect to this objective when it is: interpreting the ET Rules, and exercising any power conferred by the ET Rules In addition, the parties and those representing them: must help the tribunal to advance the overriding objective, and must, in particular, co-operate generally with each other and with the tribunal Beyond this broad statement that the objective is to enable ET to resolve cases fairly and justly, the Employment Tribunal Procedure Rules ( ET Rules 2024), SI 2024/1155, Rule 3, also provides further, more specific illustrations of what this should entail......

This Practice Note explores the legal criteria that must be satisfied for a settlement agreement (previously called a compromise agreement) to be effective and enforceable in resolving statutory employment claims. For guidance on the day-to-day issues that commonly arise around a settlement agreement, and a brief overview of the relevant tax treatment, see Practice Note: Settlement agreements in employment: practical and tax issues. For a step-by-step guide, or task-based toolkit, to deploying a settlement agreement in the employment context, see Practice Note: How to use a settlement agreement in employment... Effect of contracting-out provisions Almost every claim capable of being issued in an employment tribunal stems from a jurisdiction created by statute. Each such statutory scheme contains a clause preventing the parties (or prospective parties) to an employment tribunal claim from entering into an arrangement that purports to settle the claim and, in doing so, seeks to...

This Practice Note explores the notion of ‘reasonableness’ in relation to particular kinds of employment post-termination restraints (restrictive covenants), such as territorial limitations and non-compete clauses, alongside non-solicitation, non-dealing and no-poaching (no-employment) provisions. Since any post-termination restraint amounts to a restraint of trade agreed by contract, it will, even where validly incorporated into an employment contract (see Practice Note: Incorporation of post-termination restrictions), offend public policy and be unlawful unless: the party seeking to uphold the restraint can show a legitimate business interest requiring protection, and the restraint is reasonable as between the parties and accords with the public interest For wider guidance on restraint of trade in the employment sphere, see Practice Note: Restraint of trade in employment. For further guidance on legitimate business interest, see Practice Note: Legitimate business interest. Reasonable as between the parties For a restraint to be reasonable in the parties’...

Traditionally, the UK’s corporate governance system has concentrated on listed companies. A key pillar of that system, the UK Corporate Governance Code ( UKCG Code), applies to companies with a listing of equity shares in the equity shares (commercial companies) category, or in the closed-ended investment funds category. However, the good governance principles it advances also matter for other companies, especially AIM companies and large private companies. These organisations may elect to adopt the UKCG Code’s principles and follow a ‘comply or explain’ approach, although there is no obligation to do so, and they may instead select an alternative governance code that better fits their circumstances. A framework designed specifically for large private companies has been taking shape slowly, and in a somewhat ad hoc manner, over many decades. The development of a corporate governance framework for large private...

Practice Note This Practice Note explores the employment tribunal’s authority to determine breach of contract claims under the Employment Tribunals Extension of Jurisdiction ( England and Wales) Order 1994 ( ET Extension of Jurisdiction Order 1994), SI 1994/1623. It addresses claims for unpaid wages, the limits on the tribunal’s jurisdiction (including the exclusion of personal injury claims, intellectual property claims and restrictive covenant claims), the consequences of those limits where an employee’s losses exceed £25,000, time limits, breach of contract claims brought by employers, and the considerations when choosing whether to pursue a breach of contract claim in the employment tribunal or in the civil courts. Finally, it sets out proposals concerning reform of employment law hearing structures. For guidance: on unlawful deduction from wages claims, see Practice Note: Deductions from wages on the legal and practical issues to weigh when deciding whether an employee should bring a claim for...

Jurisdiction of the Employment Appeal Tribunal ( EAT) This Practice Note outlines the EAT’s remit and standing. As a statutory body, the EAT’s powers spring from legislation. It may convene anywhere in Great Britain, although its principal office is in London and, in practice, hearings are usually held in London and Edinburgh. The EAT operates under its own procedural code, the Employment Appeal Tribunal Rules 1993 ( EAT Rules 1993), SI 1993/2854, to be read with its Practice Direction. Its appellate role spans decisions of employment tribunals and, where relevant, rulings of the Certification Officer and the Central Arbitration Committee ( CAC). It addresses binding authority and the limited bases upon which it may depart from its earlier rulings. Appeals turn on questions of law, not fact, and may encompass challenges to case management...

This Practice Note outlines the Companies Act 2006 ( CA 2006) mechanism for removing a company director from office, and should be considered alongside Practice Notes: How to remove a company director and Appointment, retirement and resignation of a director. For a visual guide to the steps required to remove a director, see —flowchart showing the actions that must be taken. Removal from office Resolution to remove a director A director can be removed from office by an ordinary resolution of the members passed at a general meeting of the company before their term expires and, despite any provision in any agreement between the director and the company, pursuant to CA 2006, s 168. For a sample ordinary resolution to remove a director from office, see Precedent: —ordinary resolution. Shareholder activists may seek the removal of a director (or the whole board of...

This Practice Note provides an overview of the settlement of employment tribunal proceedings This Practice Note surveys settlement of employment tribunal disputes. It considers strategy and timing, and outlines the statutory and procedural frameworks for resolving claims. It addresses withdrawal and dismissal (in whole or in part), respondent applications to dismiss and related challenges, Acas early conciliation, the effect of contracting-out provisions, and the use of consent orders, COT3 agreements and statutory settlement agreements. Where appropriate, references to 'claimant' also encompass a respondent advancing a counterclaim, and references to 'respondent' include a claimant replying to such a counterclaim. Parties to an employment dispute often wish to avoid the expense, uncertainty and time of issuing (or defending) a tribunal claim or, if a claim exists, proceeding to a full hearing. Settlement discussions may begin when the dispute arises, before any claim or response is lodged, or at any stage of the...

Company directors, and in certain circumstances shadow directors, are subject to a wide range of obligations owed to the company. Over centuries, the courts have shaped many of these obligations from broader common law doctrines and equitable standards, while others also have subsequently been codified in legislation. This Practice Note examines the director’s statutory obligations set out in sections 171 to 177 of the Companies Act 2006 ( CA 2006), commonly referred to as the general duties......