Legal Q&A

If there is a share purchase, the employer’s identity remains the same and, if the incoming owner wishes to have a key employee or the MD enter into a fresh long-term agreement, this will need to be negotiated between the parties. For further details on employment issues in share purchases, see Practice Notes: Share purchases—employment issues acting for the buyer Share purchases—employment issues acting for the seller Where an asset purchase falls within the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, then—subject to an employee’s right to object to the transfer (see Practice Note: Employee transfer— Employee right to object to the transfer)—the employment contracts of those employed by the transferor and assigned to the organised grouping of resources or employees that is the subject of the relevant transfer, and which would otherwise be ended by the...

It can sometimes occur that an employee has more than one employer, and their contract of employment expressly confirms this. Joint employment should be distinguished from arrangements like secondments, where the sole employer lends their employee’s services to a third party, or from sole employment where the contract terms permit the employer to direct an employee’s work to a third party. A joint employment contract should plainly set out the basis on which each joint employer exercises control over the employee, and may provide for an indemnity between the joint employers in the event of an employment tribunal claim......

The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, reg 4 Where a relevant transfer occurs under these provisions, there is a novation imposed by statute of the contracts of employment of the staff who transfer; the incoming employer stands in the place of the outgoing employer, and each employment contract continues after the transfer as if it had been originally concluded between the employee and the transferee throughout for all relevant legal purposes thereafter......

Provided she meets specific criteria set out in the Maternity and Parental Leave etc Regulations 1999 ( MAPLE 1999), SI 1999/3312, an employee has a right to both ordinary and additional maternity leave......

This Q& A reviews alternative employment for fair dismissal purposes and examines what counts as suitable alternative employment for statutory redundancy payment purposes. It addresses both fair dismissal and statutory redundancy payment considerations. Reason for dismissal The same definition of ‘redundancy’ is applied for the purposes of determining: the entitlement to a statutory redundancy payment whether, in the context of an unfair dismissal claim, the reason for dismissal is redundancy Under that definition, an employee is dismissed by reason of redundancy where the dismissal is wholly or mainly attributable to: the employer ceasing, or intending to cease, carrying on the business for the purpose for which the employee was employed by them the employer ceasing, or intending to cease, carrying on that business in the place where the employee was so employed the requirements of the business for employees to...

A post-termination restriction (or restrictive covenant) A post-termination restriction, also called a restrictive covenant, in an employment contract is unenforceable from the outset unless the limits it places are reasonable, having regard to the interests of both the parties and of the public......

You may wish to consider separately: the implied term the fairness of a dismissal which prejudices Permanent Health Insurance ( PHI) rights, under the statutory law on unfair dismissal Where PHI benefits depend on employment continuing, the High Court has implied a term preventing dismissal during incapacity, save for summary dismissal (gross misconduct) or another compelling ground (eg redundancy). In Briscoe v Lubrizol, the Court of Appeal signalled a broader carve-out, permitting dismissal for ‘reasonable and proper cause’. Even so, such a term is not always to be implied. In Lloyd v BCQ ( EAT) no implication was made where: a later written contract omitted any reference to the PHI scheme and contained an entire agreement clause there was, overall, no contractual entitlement to scheme benefits the contract expressly permitted dismissal for prolonged illness For more detail, including...

IR35 The off-payroll IR35 framework applies where: from 6 April 2017, the engager is a public authority; and from 6 April 2020, a private sector organisation (other than one that is ‘small’) hires a worker via an intermediary, for example a personal service company ( PSC). The legislation takes effect in respect of payments made on or after those dates, even where such payments relate to services delivered before those dates. This applies without regard to precisely when the work was performed. In essence, and in practical terms, the off-payroll IR35 rules move the task of deciding whether IR35 applies from the PSC to the end client in relevant cases and, where IR35 does apply, they place the duty to deduct income tax and National Insurance contributions ( NICs) on the party nearest to the PSC in the contractual chain (whether that is the end client...

Information on right to work checks generally can be found in the following Practice Notes: Right to work checks: when and why Right to work checks: how to conduct the check Illegal workers—civil and criminal sanctions Section 15(1) of the Immigration, Asylum and Nationality Act 2006 ( IANA 2006) makes it unlawful to employ an adult who is subject to immigration control where they have either: not been granted permission to enter or remain in the UK, or permission that is invalid, has expired or otherwise ceased to have effect (for example, cancelled or curtailed), or is subject to a condition barring them from taking employment For more information, see the section of Practice Note: Right to work checks: when and why entitled ‘ Why’......

With effect from 11 November 2021 No individual may enter a CQC-registered care home unless they can present documentary proof that they have completed a full course of coronavirus ( COVID-19) vaccination, or formal confirmation that they should not be vaccinated for clinical reasons, except where they are: a resident of the home a friend or family member of a resident visiting a resident who is dying, or offering comfort or support to a bereaved resident required, where reasonably necessary, to provide emergency assistance on the premises attending the premises in the course of their duties as a member of the emergency services carrying out urgent maintenance work within the care home under 18 years of age The 'registered person'—that is, the individual registered with the CQC as the manager or service provider—has responsibility for ensuring that anyone entering a care home is either vaccinated or exempt. These provisions will clearly affect people who...

Under section 193 of the Trade Union and Labour Relations ( Consolidation) Act 1992 Employers are required to inform the Secretary of State for Business, Energy and Industrial Strategy ( BEIS) before issuing any redundancy notices and, in any event: where 20 or more dismissals are contemplated within 90 days, no less than 30 days before the first dismissal takes effect where 100 or more dismissals are contemplated within 90 days, no less than 45 days before the first dismissal takes effect For BEIS notification purposes, the full 30- or 45-day interval must pass before the first dismissal occurs. Notification is made on Form HR1, submitted to The Insolvency Service. For additional details, see Practice Note: Collective redundancy—statutory information and consultation obligations, under the heading Obligation to notify BEIS ( Form HR1). As stated in the Advance notification of...

Weekly rest periods Under the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, reg 11(1), an adult worker has a right to an unbroken rest period of at least 24 hours in each seven-day period during which they work for their employer. Alternatively, within any 14-day window, the employer can provide either two 24-hour rest periods, or one 48-hour rest period. The Health & Safety Executive is tasked with enforcing the maximum weekly working time, limits on night work and health assessments for night work, but it does not police time off, paid annual leave or rest break entitlements. These rights are instead enforced by workers through a complaint under WTR 1998, SI 1998/1833, reg 30, alleging that the employer has failed to allow the exercise of the relevant entitlement. For further detail, see the section of the Practice Note: Hours of work and...

For information: on information and consultation duties under the Transfer of Employment ( Protection of Employees) Regulations 2006 ( TUPE 2006), SI 2006/246, see Practice Note: TUPE—information and consultation on TUPE protection from dismissal, see Practice Note: TUPE—protection against dismissal on unfair dismissal claims generally, see Practice Note: Entitlement to claim unfair dismissal on reasons that make a dismissal automatically unfair (no qualifying period), see Practice Note: Automatically unfair reasons and Checklist—unfair dismissal claims requiring no minimum qualifying period A dismissal is automatically unfair under ERA 1996, s 104(1) where the reason, or main reason, is that the employee brought proceedings to enforce, or alleged an infringement of, a relevant statutory right. The two-year qualifying period does not apply where s 104(1) (read with ss 104(2)-(3)) applies (s 108(3)(g)). Relevant statutory rights appear in s 104(4), including rights...

Employment Rights Act 1996 ( Coronavirus, Calculation of a Week’s Pay) Regulations 2020 ( Week’s Pay Amendment Regs 2020), SI 2020/814 For broader guidance on SI 2020/814, see Practice Note: Coronavirus Job Retention Scheme—right to statutory redundancy and other termination payments [ Archived]. This resource provides general context on the Employment Rights Act 1996 ( Coronavirus, Calculation of a Week’s Pay) Regulations 2020 and their application... The Week’s Pay Amendment Regs 2020, SI 2020/814, prescribe how to determine a week’s pay for an employee who is, or has previously been, furloughed under the CJRS. The rules apply when calculating specified payments, including an employee’s entitlement to payment under section 88 or 89 of the Employment Rights Act 1996 ( ERA 1996). In effect, the instrument clarifies the approach to weekly pay where furlough is relevant, ensuring the correct basis is used for these...

Unfair dismissal—conduct and procedure Where an employee pursues an unfair dismissal claim, the onus lies with the employer to demonstrate a fair reason for ending employment. Conduct is one of the potentially fair grounds, but a fair process must also be observed. Ultimately, it needs to be established that dismissal is an appropriate and fair sanction. The Acas Code of Practice on Disciplinary and Grievance Procedures imposes duties on both employers and employees to follow its provisions, with possible sanctions for non-compliance. It describes the standard of reasonable behaviour expected in most situations. For further guidance, see the following Practice Notes: Dismissing fairly for conduct reasons Reason for dismissal—conduct Reason for dismissal—general, in particular section: Potentially fair reasons Acas disciplinary and grievance code—procedural requirements Under the Acas Code of Practice, certain actions—labelled gross misconduct—are so serious in themselves, or carry such serious consequences, that they may justify dismissal without notice even for a...

Statutory rights under the Employment Rights Act 1996 ( ERA 1996) A statutory method for working out continuity applies under ERA 1996 and overrides any arrangement between employer and worker. It hinges on: when the continuous period begins when the continuous period finishes whether anything occurs that breaks continuity between start and end whether any service with a different employer is included For more detail, see Practice Note: Continuity of employment......

If an employee dismissed by reason of redundancy is invited to return to their former post, or to take up another position (with the same employer or an associated employer), and they resume work within four weeks of the previous employment ending, they are treated as not dismissed and have no entitlement to a redundancy payment (section 138(1) of the Employment Rights Act 1996 ( ERA 1996)). For more detail, see Practice Note: Renewal of contract, re-engagement and trial periods. On whether an employee’s continuity of employment is preserved during the interval between the old role ending and the new role commencing in those circumstances, see, generally, the following Practice Notes: Continuity of employment How to determine continuity of employment Working out an employee’s period of continuous employment with an employer is relevant to qualifying for certain statutory rights under the...

In Hartley, the Supreme Court addressed how to properly calculate deductions from an employee’s salary for strike days during which no work was actually performed......

Under the Maternity and Parental Leave etc Regulations 1999 ( MAPLE 1999), SI 1999/3312 Subject to an earlier start being triggered by childbirth, an employee’s ordinary maternity leave ( OML) begins on the earlier of: the date she has told her employer she intends to start maternity leave under the standard notice, or, if changed, the last date she notified—provided the chosen date is not before the start of the eleventh week prior to the expected week of childbirth ( EWC) ( MAPLE 1999, SI 1999/3312, regs 4(1), 4(1A), 4(2)(b), 6(1)(a)); and the day after the first day she is off work wholly or partly due to pregnancy in the final four weeks before the EWC ( MAPLE 1999, SI 1999/3312, reg 6(1)(b)). If she is absent for pregnancy-related reasons at any time in the four weeks before the EWC, OML starts...

Section 2 of the Mental Health Act 1983 ( Me HA 1983) Under Me HA 1983, s 2 permits a person to be taken into hospital and kept there once an application for admission for assessment has been properly and lawfully made, the aim being to evaluate their mental health. Me HA 1983, s 3 in turn authorises admission to hospital and continued detention where an application for admission for treatment has been successfully made. The Mental Capacity Act 2005 ( MCA 2005) sets out a number of governing principles which are to be appropriately applied for the purposes of that Act, in connection with its application......