Monday Morning Dispatch - 25 April 2022

What’s Happening – Video/Multimedia

In this week’s video Nils O’Donoghue, Partner in our Regulatory Team, discusses the requirements of direct email marketing to customers that companies need to look out for.

Watch the video

2022 Seminar Programme

Further events will be scheduled throughout the year but for now please find the details below for our events on 4 May 2022 and 8^th June 2022:

Wednesday 4th May 2022 – 11am – Managing Employees with under 2 years’ service

We will be delivering a seminar which considers how to manage an employee with under two years’ service when concerns arise, and the risks of potential litigation involved when this is not managed correctly. This will include considering claims that can be pursed when an employee does not have two-years continuous employment and how to avoid these.

Wednesday 8th June 2022- Lateness and Short-term absence/ Evalu8 system

In this Seminar we will be covering how to manage employee lateness and absences. Employees’ lateness or absences may be for several reasons and we explore how to manage these situations. We will also present on practical HR solutions manage employee lateness and absence.

The seminar program is now in full swing and links the all the events can be found on our website:

Business Services Seminars – Chadwick Lawrence

In the News

There have been lots of relevant employment law/HR updates this week.

Employment Tribunal – Postmasters are not considered Workers

In 2018 a group of postmasters brought a claim in the employment tribunal which argued they were workers of the Post Office and therefore entitled to holiday pay under the Working Time Regulations 1998 (WTR). The tribunal heard at a preliminary hearing the question of worker status based on a sample of 10 claimants of the 120 named claimants.

The tribunal found that the postmasters were in a position of dependence on the Post Office and also subject to its control. This was based on their contractual terms being decided by the Post Office and rules which had to be followed in branch regarding the sale of products. However, the tribunal found that the contracts did not require personal service.

This decision was based on the fact that postmasters could and often did delegate to assistants, and whilst some postmasters did offer a level of personal service, this was not a requirement of the job.

The tribunal considered case law which confirmed that personal service was not required under earlier versions of the postmaster contracts and found that its conclusions were similar. As there was no requirement for postmasters to provide services personally, they were not workers for the purpose of regulation 2(1) of the WTR 1998.

https://assets.publishing.service.gov.uk/media/6256c61f8fa8f54a922789e9/Mr_M_Baker_vs_Post_office_Ltd_.pdf

‘Fire and Rehire’ –Government to Introduce a Statutory Code of Practice “when parliamentary time allows”

On 29 March 2022, the government announced that a new Statutory Code of Practice will be published on the use of “fire and rehire” practices to bring about changes to employees’ terms and conditions.

This is one of nine measures to protect seafarers’ rights in light of the recent large scale redundancies by P&O Ferries which took place without prior notice or consultation.

Mr Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, confirmed that a draft of the Statutory Code of Practice on dismissal and re-engagement will be published and representations, including from trade unions, will be considered in accordance with section 204 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Advice published by ACAS in November 2021 suggests that employers should fully consult their workforces and make every effort to reach agreement on any contract changes, noting that fire and rehire is an extreme step that can damage staff morale, trust, productivity and working relations.

https://questions-statements.parliament.uk/written-questions/detail/2022-03-30/150179

Employment Appeal Tribunal – Tribunal Incorrectly Struck Out Unfair Dismissal Claim

The EAT held that the employment tribunal was wrong to strike out a claim for unfair dismissal on the basis that it had no reasonable prospect of success because the claimant had requested redundancy.

In September 2018, care home operator HC-One Oval Ltd announced it was reducing the number of employees carrying out reception and administrative work. Ms White was provisionally selected for redundancy. Subsequently, she requested voluntary redundancy, which was accepted.

After termination of her employment, Ms White submitted a claim for unfair dismissal. She alleged that:

•	In July 2018, she had raised a grievance about having to cover the duties of an absent colleague as well as her own, without extra pay.
•	During the redundancy process, an administrative role had become available. This should have been offered to her but was not.
•	The outcome of the redundancy process was that a receptionist recruited just before it began, who had no childcare responsibilities, had been offered a full-time role while the two part-time receptionists had been dismissed. The process had been manufactured to achieve this.

For these reasons, Ms White argued that the redundancy process was not genuine and that she had been targeted for dismissal. The employer disputed Ms White’s allegations. It contended that she had been fairly dismissed for redundancy at her own request and therefore that her claim should be struck out because it had no reasonable prospect of success.

The employment tribunal struck out the claim. It held that, because Ms White had requested redundancy, the employer would be able to establish the reason for, and reasonableness of, her dismissal.

However, the EAT found that the tribunal had erred in law. Had the tribunal engaged with Ms White’s case at its highest, as required, it could not have found that there was no reasonable prospect of success. If Ms White’s account of the background to the redundancy was accepted, the facts known to the decision maker might well be found to include matters other than just Ms White’s redundancy request. In addition, Ms White alleged that the redundancy process was a sham. Even if the tribunal was satisfied with the reason for dismissal, it would still need to consider the fairness of the process. There was a factual dispute here which was not suitable for summary determination. The case was remitted to the tribunal for consideration by a different judge.

https://assets.publishing.service.gov.uk/media/624ee7b4d3bf7f601560ba9c/Ms_N_White_v_HC-_One_Oval_Ltd__2022__EAT_56.pdf

AOB

Whilst our primary aim is to bring you the latest updates on issues and changes in employment law and HR, we understand that businesses have other requirements from time to time and would like to take this opportunity to remind you that our firm offer other services that can support you:

Wills & Probate Team

YOU CAN RELY ON US TO TAKE CARE OF EVERYTHING FOR YOU

Our dedicated Wills & Probate solicitors are here to help you every step of the way.

Without a Will, the law dictates what happens to your estate in the event of your death, and this may not reflect your wishes. It is particularly important for unmarried couples to make Wills as this is the only way to ensure proper provision for each other on death. Nor is it necessarily true that if you are married, your spouse will inherit your whole estate.

Not making a Will could leave your loved ones in a difficult position at what is already a stressful time.

If you haven’t already made a Will, or if yours has become outdated due to a change in your circumstances, for example marriage, separation or parenthood, speak to us today. You should review your Will every 3 to 5 years to ensure that your will effectively accords with current wishes. You can change your Will at any time so long as you have capacity to do so. We make no charge to review your Will, even if it was drafted by another firm.

Another important aspect of your Will is to choose guardians for your children and decide who will be responsible to wind up your estate. We are happy to visit you at your home or in hospital if you are unable to attend at any one of our offices.
Probate

When there has been a death in the family, we understand that it is a sad and stressful time. Our private client team is highly trained with many years’ experience and will help you through this emotional time. We are always there to help, handling things with professionalism, care and understanding.

Our dedicated probate team work to administer any Will as quickly and efficiently as possible, explaining the process to you every step of the way. We can deal with the whole of the probate, freeing you of the administrative burden or assist you with specific aspects such as helping you draft the complex inheritance tax form and probate application so that a grant of Probate can be obtained.