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August 2014 Employment Law Newsletter

07-08-2014

1. GUIDANCE: New apprenticeship Standards published
40 new apprenticeship standards have been published by the government and are designed to be more responsive to the needs of employers. The standards cover various sectors, including accountancy, aerospace and hospitality. You can access the information here

2. Notice pay & restrictive covenants
The High Court recently had to consider whether an employee could be prevented from working for a competitor during his notice period if the employer had stopped paying his salary.

The case involved an employee with a 12 months’ contractual notice provision and enforceable restrictive covenants who resigned to join a competitor. Shortly into the notice period, the employee failed to attend work. Therefore the employer ceased his salary payments highlighting that pay would resume on the employee’s return to work. The employee sought to argue the failure to pay breached the employment contract and removed the restrictions.

However, the Court held that the employer had good reasons to want to keep the contract in place and therefore granted an injunction to prevent the employee from going to work for a competitor during the notice period, but the court did not order that the employee should be forced back to work. The court also approved a post-termination restriction of 10 months from the last client contact, which was slightly shorter than the restrictions if the full contractual obligations were complied with.

This approach highlights that while the courts are still not generally prepared to order specific performance of an employment contract, they will not allow an employee who is in the wrong to completely disregard protection put in place for the employer’s legitimate business interests.

3. CONSULTATION: Zero hours contracts
As mentioned in the June update  the government intends to prohibit companies from restricting zero hours workers from working for other businesses. The new restrictions were included in the Small Business, Enterprise and Employment Bill 2014-15, and were limited to addressing exclusivity clauses.  It is not yet known when this will come into force, but it is unlikely to be before 6 November 2014.
However, in the interim the government has now launched a consultation regarding the potential loopholes businesses may use to avoid the proposed exclusivity ban. The consultation is also seeking views on penalties and remedies. The closing date for responses to the consultation is 3 November 2014. More information can be found here

4. TUPE & fundamental breaches of contract
Can a change of location following a TUPE transfer amount to a fundamental breach of contract entitling the employees to resign and bring constructive unfair dismissal claims? Well, it will always depend on the circumstances, but a recent decision by the Employment Appeal tribunal highlighted that a change in depot location for London bus drivers was not a substantial change in their working arrangements. This was partly because they had been transferred on their existing terms of employment which included a mobility clause that, even without any TUPE transfer, could have meant they had to work at another inconvenient location. Accordingly, their unfair dismissal claims failed.

Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181 or  [email protected]

Follow Julie on Twitter: @JulieT_GL


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