Legal Q&A

To handle personal information in a lawful manner under the General Data Protection Regulation ( GDPR), Regulation ( EU) 2016/679, an employer must first identify a lawful basis before any personal data is processed. Among the lawful grounds listed in Article 6 of Regulation ( EU) 2016/679, GDPR, is processing that is necessary for the purposes of legitimate interests pursued by the controller or a third party, unless those interests are outweighed by the data subject’s interests, rights or freedoms. The Information Commissioner’s GDPR guidance explains that, in relation to the legitimate interests condition, it is the most adaptable lawful basis for processing; however, data controllers should not presume it will invariably be the right choice. The GDPR guidance further notes that: The legitimate interests basis tends to be suitable where individuals would reasonably anticipate the use of their data and the...

The Employment Agencies Act 1973, together with the Conduct of Employment Agencies and Employment Businesses Regulations 2003, SI 2003/3319 ( Conduct Regs 2003), regulate the private recruitment sector and establish minimum requirements for employment agencies and employment businesses trading from premises in Great Britain (ie England, Wales and Scotland). The Conduct Regs 2003 apply in circumstances where an employment agency or an employment business provides work-finding services to a work-seeker......

Disability discrimination Under section 6 of the Equality Act 2010 ( Eq A 2010) and Eq A 2010, Sch 1, Pt 1, a diagnosis of cancer is treated, without further proof, as a disability for Eq A 2010 purposes. See Practice Note: Disability. Attention must be given to the various forms of discrimination and other banned conduct contained in Eq A 2010, as set out within that legislation and provisions therein. See the part of Practice Note: Disability discrimination headed ‘ The basic types of discrimination and other prohibited conduct’, together with the fuller Practice Notes cited there and cross-referred within that section. For Eq A 2010 purposes, a ‘dismissal’ also covers situations where an employee’s employment ends (and is not immediately renewed on identical terms) because a particular period has run out, or a particular event has happened, or a...

For general guidance on demergers, see: Demergers—overview. You might wish to assess: whether the intended demerger constitutes (a) a business transfer or (b) a service provision change ( SPC) under the Transfer of Undertakings ( Protection of Employment Regulations) 2006 ( TUPE 2006), SI 2006/246 if so, the consequences of a relevant transfer under TUPE 2006, SI 2006/246 for employees of Company A (ie would the transfer result in those employees moving to Company B, which will depend on the nature of the transfer) if the employee cannot establish the sought-after right under TUPE 2006, SI 2006/246, whether they can contend that they are in fact (and were pre-transfer) employed by Company B, despite, for example, holding a contract of employment with Company A Is there a business transfer under TUPE 2006?......

Statutory minimum notice For an overview of the statutory entitlement to a minimum notice period under the Employment Rights Act 1996 ( ERA 1996), refer to Practice Note: Statutory minimum notice. The right to statutory notice in ERA 1996, s 86(1)–(2), prescribes the length of notice needed to end the employment contract of an individual who has been employed continuously for one month or more. For this context, a ‘contract of employment’ includes a contract of service or apprenticeship, whether expressly (orally or in writing) or implied......

Response to appeal Under the Employment Appeal Rules 1993 ( EAT Rules), SI 1993/2854, rule 6(2) provides that a respondent who intends to oppose an appeal must lodge with the Appeal Tribunal a written answer in accordance with, or broadly following, Form 3 contained in the Schedule to these Rules, setting out the grounds on which they rely. Nevertheless, where the respondent seeks to rely on any ground that mirrors a ground adopted by the employment tribunal when making the judgment, decision, declaration or order under appeal, it is sufficient simply to say so in the answer, and it shall be sufficient to state that fact in response. For further details, see Practice Note: Responding to an appeal......

At the outset, it is essential to recognise that the approach to waiving claims varies according to whether the settlement is concluded by a COT3 agreement ( Form COT3) facilitated by Acas, or by an agreement made under section 203 of the Employment Rights Act 1996 ( ERA 1996) with confirmation from an independent legal adviser. The distinction is material. In the case of a settlement agreement pursuant to ERA 1996, s 203, the position is plain and uncomplicated. It admits of little ambiguity in practice. Regardless of any express wording, such an agreement cannot validly prevent a claimant from pursuing a later victimisation claim that stems from their having brought the original discrimination proceedings. That outcome follows from ERA 1996, ss 203(1) and (3)(b), which nullify any element of a settlement that does not pertain to the specific...

The process whereby a trade union can seek to be recognised by an employer for the purposes of collective bargaining comprises elements of both voluntarism and compulsion. At the outset, recognition is settled through negotiation between the employer and the relevant union or unions, including whether recognition is granted, for which purposes and at what organisational level. This is known as ‘voluntary recognition’. Where recognition rests purely on a voluntary basis, the employer may reverse its position and withdraw that recognition at any time. Such a step can have industrial relations ramifications, but there is little the union can achieve in law to stop it, unless the recognition agreement is a binding contract, which is highly unusual. For further detail, see Practice Note: Trade union recognition, under the section headed ‘ Voluntary recognition where no request for statutory...

Worker categories For leave years commencing before 1 April 2024 there was only one worker category for holiday entitlement and pay purposes, which we describe as ‘regular’ workers. For leave years beginning on or after 1 April 2024, a new way of working out holiday entitlement and pay was introduced, but it applies only to individuals who fall within the newly established ‘part-year’ or ‘irregular hours’ categories. For anyone who does not sit within those categories, the previous method of calculating holiday entitlement and pay continues to apply. For fuller detail on what counts as a part-year worker under the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, regs 2(1) and 15F(1)(b), refer to the ‘ Part-year worker’ section of Practice Note: Statutory paid holiday—irregular hours workers and part-year workers. See also the government guidance: Holiday pay and entitlement reforms from 1 January 2024. In...

If a business claims to hire and remunerate an individual with a wage to reduce the tax burden of the business itself or a director/shareholder, while the individual in reality undertakes no work and supplies no services, this would appear to constitute tax evasion. Where a solicitor knows this is happening, they should adhere to the procedures prescribed in the firm’s policy on preventing the facilitation of tax evasion in such circumstances......

For information: for a general overview of zero hours contracts, refer to Practice Note: Zero hours contracts for guidance on protections for zero hours workers (including employees) concerning exclusivity clauses, see Practice Note: Exclusivity clauses—protections for low-income and zero hours workers Section 27A of the Employment Rights Act 1996 ( ERA 1996) makes any term in a zero hours contract unenforceable against a worker if it attempts to stop them from: carrying out work or providing services under another contract or any other arrangement, or doing so without the employer’s permission Workers under a specified contract (that is, low-income workers) are additionally covered by the Exclusivity Terms for Zero Hours Workers ( Unenforceability and Redress) Regulations 2022, SI 2022/1145, regs 2–3......

Statutory holiday entitlement Under the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, workers have a right to 5.6 weeks’ paid annual leave, comprising: a core statutory entitlement of four weeks’ annual leave each leave year, giving effect to Directive 2003/88/ EC, the Working Time Directive ( WTD) an extra entitlement of 1.6 weeks’ statutory annual leave each leave year Under WTR 1998, SI 1998/1833, reg 16, a week’s pay must be determined in line with sections 221, 222, 223 and 224 of the Employment Rights Act 1996 ( ERA 1996), subject to the modifications set out in WTR 1998, SI 1998/1833, reg 16(3). For further information, see Practice Notes: Holiday and Holiday pay......

In any specific context, a controller handling personal data or information must assess if the processing activity complies with what is now the applicable Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR), and the Data Protection Act 2018 ( DPA 2018)......

Where a relevant transfer occurs under the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, the employment contract of any individual employed by the transferor and allocated to the organised grouping affected by transfer is not brought to an end. Rather, following the transfer, the employment contract takes effect as though originally concluded between the worker and the transferee ( TUPE 2006, SI 2006/246, reg 4(1))......

This Q& A relates to the shared parental leave and shared parental pay regime introduced in respect of children who are: due to be born on or after 5 April 2015, or placed for adoption on or after 5 April 2015 Shared parental leave permits parents, if they prefer, to split up to a maximum of 50 weeks of the leave that would otherwise fall solely to the mother or adopter, which is then treated as shared parental leave. Shared parental pay enables the mother and the father (or, where relevant, the adopter and the adopter’s partner) to divide up to 37 weeks of the pay to which the mother (or adopter) would otherwise be solely entitled. To qualify for shared parental leave and pay, the mother and the father (or, as applicable, the adopter and the adopter’s partner) must satisfy certain...

Statutory paid holiday entitlement For guidance on the general statutory right to paid holiday, see Practice Notes: Holiday and Holiday pay. Under the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, a worker is entitled to 5.6 weeks’ paid annual leave each leave year, consisting of: a core entitlement of four weeks’ annual leave, giving effect to Directive 2003/88/ EC, the Working Time Directive ( WTD) a further entitlement of 1.6 weeks’ annual leave, which arises solely under domestic legislation A worker is due a week’s pay for every week of leave, calculated in line with sections 221 to 224 of the Employment Rights Act 1996 ( ERA 1996). The method for working out a week’s pay varies according to whether the worker has normal working hours. For more detail, see the section of Practice Note: Holiday pay titled...

Safeguarding (and promoting the welfare of children) is defined in the Government’s statutory guidance: Working together to safeguard children as: keeping children safe from maltreatment averting impairment to children’s health and development making sure children are raised in conditions that align with safe and effective care acting to ensure every child can achieve the best outcomes There is no specific obligation on an employer providing work experience to young people under 18 to introduce a safeguarding policy......

Duty to make reasonable adjustments The Equality Act 2010 ( Eq A 2010) establishes a duty to make reasonable adjustments (referred to below as ‘the duty’), which contains three distinct requirements. The third requires that, where a disabled person would, without the provision of an auxiliary aid, face a substantial disadvantage in relation to a relevant matter when compared with people who are not disabled, such steps as are reasonable must be taken to supply the auxiliary aid. The situations in which the duty arises differ across workplace settings. Accordingly, the precise circumstances that engage the duty will not be uniform across all settings. For all three requirements, the duty is triggered only where a disabled individual is placed at a substantial disadvantage compared with non‑disabled people ‘in relation to a “relevant matter”’, and what counts as a ‘relevant matter’ (as defined in Eq A 2010, Sch 8 Pt...

For guidance on entitlement to statutory annual leave under the Working Time Regulations 1998 ( SI 1998/1833), and on methods of calculation, refer to Practice Notes: Statutory paid holiday—the right and Statutory paid holiday—calculating holiday pay. For details on recourse where statutory sick pay ( SSP) and contractual sick pay are not paid, see the ‘ Remedies’ section of Practice Note: Sick pay......

For information: regarding the revised Coronavirus Job Retention Scheme ( CJRS), see Practice Note: Coronavirus Job Retention Scheme (extended version 1 July to 31 October 2020) [ Archived] concerning holiday and holiday pay during the coronavirus ( COVID-19) pandemic, see Practice Note: Coronavirus ( COVID-19)—holiday and holiday pay [ Archived] for general holiday and holiday pay matters, see Practice Notes: Holiday and Holiday pay It is clear that: employees may take holiday whilst on furlough the statutory framework for working out holiday pay applies to furloughed staff in exactly the same way as it does to those not on furlough See the section of Practice Note: Coronavirus ( COVID-19)—holiday and holiday pay [ Archived] entitled: Furloughed workers, under the heading ‘ Holiday pay’. The BEIS guidance Holiday entitlement and pay during coronavirus ( COVID-19) has not been updated since it was first...