Unfair Dismissal/awards and remedies-key card

Key Points

  • The remedies for unfair dismissal are reinstatement or re-engagement or compensation.
  • Orders for reinstatement or re-engagement are rare.
  • The statutory framework for unfair dismissal remedies is contained in Part X, Chapter II of the Employment Rights Act 1996 at ss 112 to 127B.
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Unfair Dismissal/potentially fair and automatically unfair reasons for dismissal-key card

Key Points

  • A claim for unfair dismissal can be defended by the employer showing that the reason for the dismissal was a potentially fair reason.
  • In order for any dismissal to be fair, the reason for the dismissal must fall within one of the four potentially fair reasons set out in section 98(2) of ERA 1996, or be “some other substantial reason justifying dismissal”.
  • An employee can also bring a claim that his dismissal was unfair because the reason for dismissal was an automatically unfair reason.
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Unfair Dismissal/key card

Key Points

  • Unfair dismissal is a statutory right which is defined in ERA 1996.
  • A claim for unfair dismissal can only be brought in an employment tribunal by an employee with qualifying service.
  • Unfair dismissal is different to wrongful dismissal.
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Pre-Employment Background Checks: key card

Key Points

  • An employer may choose to undertake certain pre-employment checks:
    • Right to work in UK
    • Criminal checks
    • Health Checks
    • References
    • Credit Checks
    • Check Membership to a register (lawyers to Solicitors Regulatory Authority, Accountant to Chartered Institute, Financial Services Authority)
    • Check Qualifications
    • Social Media searches
    • Check no outstanding restrictions apply.
  • Employers must follow data protection rules when handling information on job applicants.
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TUPE/key card and the 2014 changes

Key Points

  • This card outlines the purpose of the Acquired Rights Directive 2001/23/EC (“Acquired Rights Directive”) and Transfer of Undertakings (Protection of Employment) Regulations 2006 SI 2006/246 (“TUPE”). 
  • The importance of knowing at least in broad terms the purpose of TUPE and the Acquired Rights Directive is that courts frequently use a purposive approach in deciding whether TUPE applies and also will adopt an interpretation of TUPE that allows it to be construed consistently with the Acquired Rights Directive where possible.
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An excellent summary article from Russell Brimelow at Emplaw authors, Lewis Silkin which includes what employers could do now to prepare

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A useful article from Emplaw authors Lewis Silkin explaining this recent decision from the Court of Appeal which is of great significance for holiday entitlement and holiday pay for  'part year' workers

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For more information, see the Emplaw law card Holiday and Holiday Pay

A free podcast from Emplaw authors Gowling WLG discussing the recent developments in the NMW arena plus the risks, enforcement and some of the tricky issues when calculating the NMW in practice.

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SUMMARY

This month’s edition is a bumper summer read. Government departments seemed to hasten to publish proposals and we set out the various new plans, consultations and responses and explain the context for each. Meanwhile key cases this month include useful guidance from the EAT on the law around whistleblowing, and from the Supreme Court on restrictive covenants and the blue pencil test.  There are also cases dealing with practical workplace issues such as covert recording of meetings and whether agency workers have the right to the same hours as the hirer’s employees.

The next edition of Emplaw Monthly will be in September.

Podcast from Jason Galbraith-Marten QC and Chris Milsom from Cloisters, which discuss the recent spate of Employment Status cases and asks; why are they coming to prominence now and what should we look out for in the future?

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