Legal Q&A

Practice Note: Applying under the Representative of an Overseas Business category Please see Practice Note: Applying under the Representative of an Overseas Business category, which sets out the eligibility criteria and process (including application form and fee details) for submitting an initial application or seeking an extension under the UK immigration route for Representatives of an Overseas Business. The note explains the eligibility criteria for Sole Representatives of an Overseas Business......

Neither the legislation— Part 4, Schedule 6 of the Education and Inspections Act 2006 ( EIA 2006)—nor the guidance— Governance handbook and Schools causing concern— Statutory guidance for local authorities—addresses whether a duty to consult persists where a local authority intends to exercise its EIA 2006, s 65 powers to appoint an Interim Executive Board ( IEB) after the entire governing body has stepped down. Warning notice As stated at page 14 of the guidance, a warning notice under Part 4 of the EIA 2006 must be provided in writing to the school’s governing body and must include: the matters on which the local authority’s concerns are based......

Under regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements ( England) Regulations 2015 ( SI 2015/1646), the prescribed obligations apply to tenancies granted on or after 1 October 2015, but exclude statutory periodic tenancies beginning on or after 1 October 2015 where they followed an AST granted before that date. Consequently, if the original fixed-term tenancy was granted on or after 1 October 2015, the prescribed requirements apply to both the fixed term and also to the statutory periodic tenancy thereafter arising on expiry of that term......

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...

Resident Labour Market Test ( RLMT) When placing a vacancy under the resident labour market test ( RLMT), a sponsor must retain a screenshot of the website taken on the day the advert first goes live, unless the advert itself shows the date it was posted, in which case the screenshot can be produced at any point while the listing remains valid. See Practice Note: Resident Labour Market Test. If the wording of the advert is altered, the screenshot held by the sponsor to meet the above requirement will not match the actual particulars of the role (including the remuneration package). This inconsistency could lead, on audit, to a finding that the RLMT process was not followed. To minimise the risk of non-compliance on this matter, it is advisable to repost the advert, capture the requisite screenshots on the first day it appears as...

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......

Parental leave Parental leave (meaning unpaid parental leave, and not to be confused with Shared Parental Leave) is regulated by the Maternity and Parental Leave etc Regulations 1999 ( MAPLE Regs 1999), SI 1999/3312. The default position under the MAPLE Regs 1999, SI 1999/3312, Sch 2, requires employees to: give notice of their intention to take parental leave, specifying the dates the leave will begin and end; and give at least 21 days’ notice of the date on which the parental leave is to start. MAPLE Regs 1999, SI 1999/3312, Sch 2, also sets out that the minimum period of leave that can be taken at any one time is a week, and that leave must be taken in weekly blocks, not individual days (assuming the child in question is not disabled)......

UPDATE: Since this Q& A was first posted on 6 April, HMRC’s employer guidance, Claim for your employees’ wages through the coronavirus job retention scheme, together with the employee guidance, Check if your employer can use the coronavirus job retention scheme (initially issued on 26 March and amended on 4 April), were updated again on 9 April and 15 April 2020. The government also released a Treasury Direction on 15 April. For details of the revisions made on 4, 9 and 15 April 2020, and for the Treasury Direction, please see the following News Analyses: HMRC publishes updated employer and employee guidance on Coronavirus ( COVID-19) job retention scheme HMRC publishes second update to employer and employee guidance on Coronavirus ( COVID-19) Job Retention Scheme Treasury gives legal effect to Coronavirus Job Retention Scheme and updates guidance a third time For...

A Post- Employment Notice Pay ( PENP) calculation It uses a set calculation that lets employers identify the taxable portion of a severance package on termination of employment when the basic salary actually paid falls short of what would have been earned had proper or full notice been worked. The method takes basic pay, multiplies it by the remaining notice days, then divides by the number of days in the relevant pay period, before deducting in full any amounts paid net of tax, except for holiday pay and termination bonuses. The requirement to perform a PENP calculation stems from reforms that took effect from 6 April 2018, making all such payments in lieu of notice chargeable to tax and national insurance......

This Q& A proceeds on the basis that intended lowering of the hurdle attached to the growth shares is not one element of a pre‑arranged sequence of steps or a tax avoidance arrangement (for instance, where the plan from the outset was to grant the shares with a high hurdle and later reduce that hurdle to confer a benefit on employees). In that scenario, HMRC might effectively contend that the employment‑related securities rules are not engaged, and that employees are instead taxable to general earnings, by reference to the cases of PA Holdings Ltd v Revenue and Customs Commissioners and UBS AG v Revenue and Customs Commissioners......

Practice Note: TUPE—what pension benefits should the transferee provide? The Pensions Regulator, in its auto-enrolment guidance 2, indicates that when a TUPE transfer occurs, employees who move across are regarded as new joiners of the incoming employer (the transferee)......