First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

When, if ever, it is appropriate for an employer to argue frustration of contract? For example if an employee is given a prison sentence of 3 or more years for an offence that is no way connected with their employment can an employer claim frustration rather than have to go through the statutory dismissal procedure using "some other substantial reason" as the potential reason for dismissal?

Posted in: First Tuesday Q&A NI on 01/10/2013 Case law confirms that a custodial sentence imposed on an employee is capable of frustrating the contract of employment but whether it does or not depends on the circumstances of the case with the length of the term to be served by the employee being a significant factor to be considered. Tribunals...
This article is listed under the following topics:
Unfair Dismissal Disciplinary and Grievance Issues Contracts of Employment

There has been a lot of publicity recently about the use of zero hours contracts. Can you explain what they are and what their advantages are?

Posted in: First Tuesday Q&A NI on 03/09/2013 The use of zero hours contracts has indeed been well publicised recently in the media. The Chartered Institute of Personnel and Development has found that up to 4% of the UK workforce is on such contracts; this equates to around 250,000 workers in the UK. A zero hours contract is one under which th...
This article is listed under the following topics:
Contracts of Employment

An employee (on a permanent employment contract for past 2 years) has always worked on a 2 shift arrangement on Monday (7 hour shift) & Tuesday (7 hour shift) only each week since she commenced with the company.

The company, in order to cover its shift requirements for a two week period, now wants the employee to a) increase the number of shifts and b) for the employee to work days other than Monday and Tuesday. It is known that the employee works for another company (non-competing) for some other days each week.

There are other employees (both male and female) who work shift arrangements with the company and they generally work between 5 to 7 shifts per week and are available all days. The company wants to commence discussions with the employee to increase the number of shifts that she can undertake and also to be able to do additional shifts on days other than Monday and Tuesday.

a) What approach would you recommend?

b) What advice would you suggest if the employee refused to undertake the planned new arrangement?

c) Can the company go as far as to terminate the employment contract if the employee refused to co-operate?

Posted in: First Tuesday Q&A NI on 02/07/2013 When an employer considers making changes to an employee’s terms and conditions of employment, from a legal and practical perspective, obtaining the consent of the employee is the simplest option for employers. This will obviously not be a problem if the change is to the employee’s benefit but clea...
This article is listed under the following topics:
Unfair Dismissal Contracts of Employment

We want to take a security contract in-house but the work is going to be absorbed into our employees’ roles rather than being stand alone roles. Would this avoid TUPE applying?

Posted in: First Tuesday Q&A NI on 07/05/2013 The relevant TUPE legislation here is the Service Provision Change (Protection of Employment) Regulations (NI) 2006. Under these Regulations, where an activity is carried out on a client’s behalf and this activity is then carried out by the client itself, TUPE is likely to apply. To give a view o...
This article is listed under the following topics:
Contracts of Employment Transfer of Undertaking (TUPE)

How long can a full time employee be in a temporary position before they have rights to that said position? For example if they were working in a temporary position (secondment) with an increased salary, how long would it be before they could, or could they, claim to have “rights” to that position?

Posted in: First Tuesday Q&A NI on 02/04/2013 The nature of a secondment is that it should be for a temporary period, with the employee returning to his or her substantive role after a period of time, with no entitlement to the temporary position. The situation can become more complex when an employee is in a temporary position for a long peri...
This article is listed under the following topics:
Contracts of Employment

We have an employee who relocated into our employment in Northern Ireland from a sister company in the US. We are now considering the redundancy of his role. Do we have to recognise his service here and in the US for the purpose of calculating his statutory redundancy pay?

Posted in: First Tuesday Q&A NI on 05/03/2013 Generally, if an employee leaves their job and is employed by an employer who is associated with that first employer, continuity of employment is preserved. The periods of employment with both the original employer and the associated employer will count towards the employment period. Employers are ...
This article is listed under the following topics:
Redundancy and Reorganisation Contracts of Employment

As part of a restructuring programme, is it possible to reduce an employee’s responsibilities and status (i.e. lower grade job title) while leaving their base pay unchanged? Could this be viewed as a demotion?

Posted in: First Tuesday Q&A NI on 05/02/2013 It would be helpful to know the background to this situation including, for instance, whether the restructuring involves redundancy, reorganisation and/or TUPE. While making these changes is possible, these factors could impact on how the changes are made and/or if so, whether they remain valid. Re...
This article is listed under the following topics:
Redundancy and Reorganisation Contracts of Employment Transfer of Undertaking (TUPE)