August 2016 Employment Law Update


Rise in women on maternity leave facing discrimination
A survey by Citizens Advice reports a 60% rise in women reporting that they have been the victim of discrimination at work when they take maternity leave. Poor practices from employers include reducing hours of work, placing staff on zero hours contracts, changing roles when returning to work and making their roles redundant. Citizens Advice believes that the introduction of fees in the employment tribunal, combined with the rise in zero hours contracts, agency work and multiple part-time jobs, makes employees more vulnerable to these types of discriminatory practice when it comes to maternity rights. The research also estimates that around 54,000 new mothers are losing their jobs across the UK every year which is twice the number compared to a similar survey in 2005. It also found that 10% of women were discouraged from attending ante-natal appointments by their employers, which of course is unlawful and a serious health and safety issue.

Deliveroo bans workers’ access to the Employment Tribunal
Independent Contractors at restaurant delivery firm Deliveroo are being told in their terms and conditions that they cannot issue legal proceedings to be recognised as an employee or a worker. One provision stipulates ‘You further warrant that neither you nor anyone acting on your behalf will present any claim in the employment tribunal or civil court in which it is contended that you are either an employee or a worker’ and that they must ‘indemnify and keep indemnified Deliveroo against costs (including legal costs) and expenses that it incurs.’

Fortunately these types of penalty clause are unenforceable and are not worth the paper that they are written on. They are designed to scare and discourage delivery drivers from following in the footsteps of staff at Uber who have brought proceedings in the employment tribunal in relation to their employment status.

Employer successfully enforces Restrictive Covenants against Former Employee
The High Court recently awarded damages of £30,000 and an injunction to a business after a former employee breached his restrictive covenants by poaching his former employer’s clients.

The former employee Mr Penfold was employed by Decorus as a sales account manager from 2012. He signed a contract of employment which included restrictive covenants that were too widely drafted. Decorus at a later stage introduced updated contracts of employment including narrower restrictive covenants with a shorter restricted period of 6 months which Mr Penfold signed. He had also received a pay-rise before the new contract was introduced following an appraisal.

Mr Penfold tried to argue that the pay-rise issued before he signed the new contract of employment could not be counted as consideration to bind him into the new restrictive covenants.

In contrast Decorus argued that the introduction of the new contract was part of a three-phase process, namely the appraisal, follow up actions for example the pay-rise and then the issuing of the new contract of employment with the revised restrictive covenants.

In January 2016 Mr Penfold resigned and set up his own business. He then attempted to poach the clients of Decorus by using his access to their purchase logs which contained highly confidential and commercially sensitive information. He also entered into an agreement with one of Decorus’s customers whilst still employed by them, to ensure that this client provided him with information about their dealings with Decorus so that he could undercut and compete against them.

The High Court held that when taken together the appraisal, pay-rise and new contract were all connected and were valid consideration and that Mr Penfold had breached his duty of fidelity to Decorus.

This case illustrates that it is important for Employers to set out clear restrictive covenants at the start of the employment relationship and that they need to regularly review their restrictive covenants when the employee is promoted to ensure that they are appropriate and protect the business. It is also important to introduce updated restrictive covenants at the time of any promotion and/or pay-rise and to make it clear that the promotion and/or pay-rise is conditional on the employee accepting the new restrictive covenants and signing to this effect.

(Decorus Limited v (1) Daniel Penfold (2) Procure Store Limited [2016] EWHC 1421 (QB))


Employee awarded £3,000 damages after Employer withdraws job offer
The Employment Tribunal has awarded a Claimant damages for breach of contract where he verbally accepted a job offer for the position of maintenance engineer made by a recruitment agency hired to act on its behalf, and where the employer subsequently withdrew the offer.

The Employment Tribunal held that the employer acting through its agency had verbally offered the job to the Employee, which he had then accepted and which created a contract of employment. This was even though the salary and start date had not been agreed.

It was also held that the employee was entitled to damages for breach of contract equivalent to one month’s salary in lieu of notice. This was on the basis that one month was a reasonable period of notice for the position.

This case illustrates that it is vital that employers are clear that they wish to make a job offer to candidates even verbally and to ensure that communication channels with any third parties for example recruitment agencies remain clear.

(McCann –v- Snozone Ltd)


Solicitor ordered to pay £20,000 after proposing marriage to employee
Asghar Ali – the owner of AA Solicitors based in Bolton carried out a campaign of sexual harassment against a young paralegal – Miss Majid. During the interview for the position he asked her to marry him and suggested that a bed could be brought into the office.

Miss Majid politely declined Mr Ali’s advances and shortly after he dismissed her citing the reason that he could no longer afford to employ her.

The Employment Judge awarded Miss Majid £14,000 for injury to feelings (the middle Vento band), £4,000 in aggravated damages and £2,111 in loss of earnings. The award for injury to feelings was also uplifted by 10%.

It is worrying that this is still happening in 2016 and no less in the legal profession, where such behaviour brings the profession into disrepute.

(AA Solicitors Ltd (T/A AA Solicitors) & Anor v Majid UKEAT/0217/15/JOJ)

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