First Tuesday Q&A

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

How enforceable are non-compete clauses in an employment contract?

Posted in: First Tuesday Q&A NI on 07/01/2014 A non-compete clause in an employment contract is one of the most common types of restrictive covenant. The difficulty with non-compete clauses, from an employer's point of view, is that as with any part of a contract of employment, employees have a number of statutory rights, regardless of what th...
This article is listed under the following topics:
Contracts of Employment

When an employee resigns, does an employer have to pay holiday pay/termination payments based on salary plus extras such as car allowance and mortgage allowance?

Posted in: First Tuesday Q&A NI on 03/12/2013 This depends on the wording in the employee’s contract of employment. Generally it is the case that when an employee resigns the employee will be paid his/her normal salary and contractual benefits up to the date of termination of employment. If the employee has accrued any untaken holiday leave at...
This article is listed under the following topics:
Contracts of Employment Working Time and Leave

As we have to pay redundancy for employees whose term exceeds 2 years are we able to avoid this cost – can we issue contracts for just under 2 years? If contracts are issued purely to avoid the redundancy legislation, would they automatically become unlawful?

Posted in: First Tuesday Q&A NI on 03/12/2013 Employees with a least two years' continuous employment are entitled to a statutory redundancy payment if they are dismissed by reason of redundancy. The amount of statutory redundancy pay to which an employee is entitled depends on his or her age, length of service and pay (subject up to a maximum...
This article is listed under the following topics:
Redundancy and Reorganisation Contracts of Employment

In the past we topped up maternity benefit (to the level of normal pay) for staff on maternity leave. However, due to financial constraints we have informed staff that we will not be doing this in the future. A staff member’s representative has written to us stating that this is in contravention of the Equality Act in England and Wales on the grounds that this cost saving measure disproportionately impacts on staff members due to family status. Is this true?

Posted in: First Tuesday Q&A NI on 05/11/2013 Making any changes to maternity pay has the potential to give rise to claims for discrimination on grounds of sex or pregnancy. Assuming matters relate to the jurisdiction of England and Wales (as opposed to Northern Ireland), however, the employer should seek to address the following questions:-Is...
This article is listed under the following topics:
Discrimination and Equality Contracts of Employment Working Time and Leave

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)