April 2022 Newsletter
With Spring having (apparently) sprung, welcome to this month’s Update. My mention of the time of year is (you’ll be unsurprised to hear) a clumsy segue into some news from France about spring cleaning, housework and whether shirking domestic chores should be a criminal offence. There have long been attempts, both in France and the UK, to have housework classified as work that deserves payment of some description. It has never come to fruition, so in France a different way of tackling the issue is being considered*. 14% of the population say they would be prepared to bring a criminal action against partners who don’t do their share of the housework. More surprising is that almost 50% back attempts to make it a criminal offence to shirk household chores. You’d be forgiven for thinking that the 50% would be exclusively women (answers on a postcard as to whether that’s a sexist comment about men, women or both!) but in fact, 44% were men, with 13% saying they were ready to bring an action against their wives. I’m not sure that criminalising slovenliness is the way to deal with this**. If it’s got to that stage, a trip to a divorce lawyer may be more appropriate.
Anyway, in this month’s Update we have a report on a case we were involved in, acting for the defendant. It’s of particular interest because it involves the enforceability of restrictive covenants in a shareholder agreement where the employee had only a 0.35% of the total shareholding. Spoiler alert: the covenants were found to be an unreasonable restraint of trade but hopefully the summary below is an interesting read and provides some guidance for employers engaging in similar schemes (and there is a link to a more technical briefing produced by Darren Tibble).
There are also useful updates on new tribunal procedures by Laura Kelleher and the usual changes to the NMW/ redundancy pay by Darren Tibble. Claire Helling also looks at the forthcoming Platinum Jubilee public holiday and its potential impact on employers and employees. Finally, there’s a really useful case report by Laurence Dunn on employee retention of confidential documents for the purpose of taking legal advice, and the right to get it returned.
HR Breakfast Meeting – 27th April 2022
Our next HR Breakfast Meeting is now just 2 weeks away.
If you haven’t attended previously, it’s a great opportunity to network with like-minded individuals, share stories and experiences and hear from our guest speakers whilst enjoying tea, coffee and breakfast (hot and cold options) served as a buffet.
The details are as follows:
Location: The Potters Heron Hotel, Ampfield – https://www.potters-heron.co.uk.
Date: 27 April 2022
Time: From 8am with breakfast served from 8.30am, finishing up by 10am.
Cost: £10 + VAT (the rest is subsidised by us).
If you are interested in attending, please RSVP via the registration form on LinkedIn here: https://www.linkedin.com/events/hrbreakfastmeeting6909869528285855744/about/ or by email to firstname.lastname@example.org. We will then be in touch with an invoice by return which we will need settled by 20 April 2022, at the latest, in order to guarantee your breakfast!
Shareholders agreements and restrictive covenants… An interesting case
DC Employment Solicitors acted in the unusual case of Gardiner Graphics Group Limited v Russell Pay, a sprawling, drawn out case lasting approaching three years from beginning to end. Initially, injunction proceedings in the High Court were threatened against Mr Pay. But as time passed by, the threat of an injunction withered on the vine (such proceedings must be launched very swiftly after a suspected breach is discovered). Instead, the Claimant decided to pursue Mr Pay in the County Court, claiming breach of contract, with the remedy being damages.
The Court had to consider whether the restrictive covenants were reasonable, whether they were breached by Mr Pay and, if so, whether any damage had been caused. As a general rule of thumb, restrictive covenants in a shareholders agreement are likely to be more enforceable than those in an employment contract. However, that does not mean the Company has authority to impose carte blanche any restrictions it wishes, and, in particular, in this case His Honour Judge Glen determined that the matter should be considered from an employment perspective because of the factual circumstances.
It’s that time of year again… Employment law changes in April 2022
Another year; another raft of changes to employment law. Thankfully, given the challenges that last couple of years has presented, the changes could be considered to be relatively uncontroversial.
We have set out some of the key changes below:
Increases to the UK National Minimum Wage and National Living Wage
From 1st April 2022, the new hourly rates are as follows:
- Age 23 and over – £9.50 (the National Living Wage)
- Age 21-22 – £9.18 (the Standard Adult Rate)
- Age 18 – 20 – £6.83 (the Development Rate)
- Age 16-17 – £4.81 (the Apprentice Rate)
In addition, if an employer provides a worker with accommodation, some of its value can be counted towards the National Minimum Wage (referred to as the ‘accommodation offset’). An employer cannot deduct more than the accommodation offset from the worker’s minimum wage figure. The accommodation offset is £8.70 per day from 1st April 2022.
High Court orders former employee to return confidential documents kept for taking legal advice
In the recent case of Nissan Motor (GB) Limited and Nissan Motor CO., Limited v Passi, the High Court considered the interesting legal issue of whether a former employee could retain confidential documents belonging to his former employer for the purpose of taking legal advice.
This is a situation that arises frequently, particularly where claimant is bringing an action against their former employer for e.g., unfair or constructive dismissal/ whistleblowing. The claimant naturally wishes to keep hold of the evidence and the employer understandably wants its confidential information returned.
Are employees entitled to a day off for the Queen’s Platinum Jubilee Bank Holiday?
As a result of the Queen’s Platinum Jubilee this year, the government announced that there will be an extra bank holiday 3rd June 2022. As such, this will result in nine bank holidays this year, as opposed to the normal eight days.
Unsurprisingly, a lot of employers are now considering whether their employees are entitled to this extra bank holiday as a day off, or not.
Right to work checks: new regulations enabling digital identity checks and new codes of practice have been published
The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc, Regulations 2022 came into force on 6th April 2022.
This regulation has changed some elements of the ‘right to work check scheme’, which places an obligation on employers to check the immigration status of prospective employees, in order to ensure whether they have the right to work in the UK.
With effect from 6th April 2022, employers can now use identification document validation technology (‘IDVT’) service providers to digitally verify the identity of British and Irish citizens with valid passports, as opposed to undertaking manual right to work checks.
Employment Tribunal practice and procedure for 2022/2023
Over the last couple of years, the Employment Tribunals have faced a number of logistical challenges due to Covid, in how it deals with cases. This has resulted in the Presidents of both the England & Wales and Scotland Employment Tribunals publishing a ‘road map’ each year about they will handle the practical challenges of managing tribunal litigation.
On 31st March 2022, the Presidents of the two jurisdictions have again published their road map for the 2022/2023 financial year.
Recently an American newspaper published a list of embarrassing texts sent to colleagues (or co-workers as they would have it), a flavour of which are below:
- “Anni, I told my boss that I was sick. I have the whole day to party!!!
- Where do you work?
- Not any more”
- “I fall in love with you all over again every time I even text you
- OMG THAT WAS AN ACCIDENTAL COPY AND PASTE. I meant to send, ‘hey, I know this is late notice but is there any way I can take off the AM shift Wednesday for a hair appointment?”
- “Hey Chuck, I’m gonna need you to come in to the office early tomorrow to open up
- I love you so much baby I can’t wait to press my body up against yours
- Hey man I’m flattered but I just need you to unlock the doors
* Source – The Times, which went with the headline “Monsieur faces the long arm of the chore”.
**I am sure – it’s not