GLOSSARY
Employer definition
What does Employer mean?
Also known as the client or developer. The person for whom the works are undertaken under the building contract by the contractor. Sometimes, but not necessarily, the employer is the owner of the site.
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Workers and Temporary Workers sponsor duties: sponsor changes of circumstances
Workers and Temporary Workers sponsor duties: sponsor changes of circumstances Sponsor organisations are required to report various changes of circumstances affecting their organisation to the Home Office. How to submit the report and who should do it differs according to the nature of the change. See Practice Note: Downgrading and revocation of Workers and Temporary Workers sponsorship licences for more details on the sanctions that a sponsor can receive for non-compliance with these reporting duties. Changes that must be notified on the Sponsorship Management System The following changes should be reported by the Level 1 user on the 'request change of circumstances' function on the Sponsorship Management System (SMS). A Level 2 user cannot do this. All of the listed changes bar two must be reported within 20-working days of the relevant circumstance occurring. The Sponsor Guidance states that the Home Office may follow up with a request for evidence of the change. Where a change is reported on the SMS and this is relevant, the request will come on a submission sheet. Documents that will be requested can include, but are not limited to, documents that would have been mandatory to submit at the time of the initial application. It is advisable to pre-empt any request where possible by preparing relevant copy evidence for submission at the same time as, or soon after the change is reported
Making an application under the EU Settlement Scheme
Making an application under the EU Settlement Scheme Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the coronavirus (COVID-19) outbreak. For updates and links to useful information, news and news analysis in relation to the implications for immigration lawyers, see Practice Note: Coronavirus (COVID-19) immigration resources. This Practice Note looks at the procedure for submitting applications for settled and pre-settled status under the EU Settlement Scheme (the Scheme). It covers: • the requirement to submit a ‘valid’ application • application procedures for applying for immigration permission under the Scheme (for European Economic Area (EEA) citizens and non-EEA citizens, inside and outside the UK) • the Home Office’s ‘EU Exit: ID Document Check’ app • the evidential requirements (these relate to identity and nationality, residence and the additional documents required for family members) • authorisation for a legal representative to liaise with the Home Office in relation to the application, and • the requirement to keep the Home Office updated in relation to certain details following grant of leave The Practice Note also looks at the application process for family permit applications from outside the UK. For the purpose of this Practice Note, EEA citizens are defined as nationals of all remaining 27 EU Member States (excluding the UK), as well as Liechtenstein, Norway and Iceland and Switzerland. Although Switzerland is not a member of the EEA,
Right to work checks and illegal working: problem areas and practical tips
Right to work checks and illegal working: problem areas and practical tips This Practice Note looks at how advisers can balance the competing risks that arise in practice where an employer fails to conduct a compliant right to work check or comes to suspect that an employee does not have the right to work. For aspects relating to right to work checks on EEA and Swiss citizens, and their family members, before 1 July 2021, see Practice Note: Brexit materials—right to work checks. Suspected illegal working situations involve consideration of a number of intertwined issues including: • employment—employment law considerations are key as they regulate the employer’s decision whether or not to dismiss. Potential risks include unfair dismissal and discrimination claims. For further information, see Practice Note: Illegal working: dealing with employees • regulatory—an employer may become liable to pay a civil penalty (leading in some cases to a revocation of any sponsorship licence) for employing a person who does not have the right to work. See Practice Notes: Illegal workers—civil and criminal sanctions and Illegal working: dealing with a civil penalty • criminal—it is a criminal offence to employ a person who does not have the right to work while either knowing, or else having reasonable cause to believe, that the person is not entitled to undertake such work in the UK. See Practice Notes: Illegal workers—civil and criminal
Legal professional privilege in civil proceedings
Legal professional privilege in civil proceedings This Practice Note considers legal professional privilege (LPP), which is made up of legal advice privilege and litigation privilege. It considers the various criteria for both types of LPP including confidentiality of communications, the dominant purpose and legal context of the communications over which privilege is being asserted and to whom the communication has been copied. The question of which country’s law decides whether a document is privileged is answered. The Practice Note looks at the meaning, for the purposes of asserting privilege, of client, legal adviser, legal advice and anticipated litigation. It addresses the various exceptions to privilege (ie circumstances in which privilege will not arise) including the iniquity exception (in circumstances of fraud or crime), where statute overrides privilege, etc. The position on copy documents, collated, selected and extracted documents and translations is also considered. Finally, practical tips on LPP and privilege generally are offered. Legal professional privilege (LPP) (which is often referred to simply as ‘privilege’ in this Practice Note) is an umbrella term encompassing legal advice privilege and litigation privilege. For information on the general principles associated with privilege including the rationale for those principles and the advantage of being able to assert privilege, see Practice Note: Privilege—general principles. Legal advice privilege Legal advice privilege protects from inspection: • confidential • communications • between A (the client or internal agent) and B
GDPR enforcement by UK and EEA supervisory authorities—tracker
GDPR enforcement by UK and EEA supervisory authorities—tracker A key objective of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) was to achieve a level of consistency in relation to how data protection law is implemented and enforced across the EU and EEA. However, there is no single repository for enforcement actions taken by the over thirty supervisory authorities that exist across Europe. See Practice Note: EU and EEA data protection supervisory authorities for a list of the main supervisory authorities in the EU and EEA. Due to the lack of a single repository for enforcement actions, this Practice Note is not comprehensive but tracks those EU GDPR enforcement decisions: • published as a ‘national news’ press release by the European Data Protection Board (EDPB) • that the Information Law team otherwise become aware of from various sources where total fines are over €2m This Practice Note also tracks enforcement actions in the UK by the UK Information Commissioner’s Office (ICO) under: • Regulation (EU) 2016/679, the EU GDPR regime (applicable under UK law until the end of the Brexit implementation period at 11 pm UK time on 31 December 2020), and • the United Kingdom General Data Protection Regulation, Retained Regulation (EU) 2016/679 (UK GDPR) regime (applicable under UK law from the end of the Brexit implementation period on 31 December 2020) References to provisions are to those
Legal protection of databases in the UK
Legal protection of databases in the UK UK database right Under the Withdrawal Agreement (see Article 58), database rights that existed in the UK or EEA before 1 January 2021 (whether held by UK or EEA qualifying persons or businesses) continue to exist and can be enforced in the UK and EEA for the rest of their standard duration. From 1 January 2021, new databases made by UK citizens, residents, and businesses are not eligible for protection in the remaining EEA Member States and new databases made by EEA citizens, residents, and businesses are not protected in the UK. The UK has also created a UK-only database right effective from 1 January 2021. This is available to UK citizens, residents, and businesses and gives protection only in the UK. In the EU/EEA these databases need to be expressly protected via licensing agreements, by contract such as website terms and conditions or by technological methods such as encryption. Copyright protection for original databases is not affected by the UK’s exit from the EU and therefore may, where appropriate, be relied on for protection of the structure of the database but not the contents of the database. This Practice Note deals mainly with UK database right but also, in some parts, sets out the position under EU law. References to Directive 96/9/EC (the EU Database Directive) are made throughout this Practice
Mergers and acquisitions in the life sciences sector
Mergers and acquisitions in the life sciences sector On 31 January 2020, the UK ceased to be an EU Member State and entered an implementation period during which it continues to be treated by the EU as a Member State for many purposes. As a third country, the UK can no longer participate in the EU’s political institutions, agencies, offices, bodies (except to the limited extent agreed), but it continues to be subject to EU law and must submit to the continuing jurisdiction of the Court of Justice of the EU in accordance with the transitional arrangements in Part 4 of the Withdrawal Agreement. For further reading, see: Brexit—Life Sciences and News Analysis: Brexit Bulletin—key updates, research tips and resources. In recent years, the life sciences sector has experienced significant merger and acquisition (M&A) activity. This Practice Note discusses some of the factors that have driven deal flow in the industry and explores some of the key considerations legal counsel should be mindful of when representing parties to such transactions. For the purposes of this Practice Note, the life sciences sector is generally considered to include pharmaceuticals, health-oriented biotechnology products and medical devices. This Practice Note focuses on issues that are common in life sciences M&A transactions and issues that tend to assume more importance in life sciences deals than in deals in other industries. Industry-specific
EEA nationals: retained and 'derivative' rights of residence for family members [Archived]
EEA nationals: retained and 'derivative' rights of residence for family members [Archived] ARCHIVED: this Practice Note is no longer maintained as it covers the implementation of EU free movement law in the UK prior to IP completion day, on which date domestic legislation implementing EU free movement law was revoked, subject to certain savings and modifications. For further details, including of the relevant savings and the position of CJEU case law, see Practice Note: What does IP completion day mean for Immigration?. The Practice Note has been retained in archived form for historical interest, because EU law as previously implemented in the UK remains relevant in certain limited situations. For historical versions of the Immigration (European Economic Area) Regulations 2016, SI 2016/1052, including immediately prior to revocation, see Legislation.gov.uk. For the ongoing development of EU free movement law in EU Member States, see: Immigration, employment & share incentives (EU Law)—overview. Introduction Important note on implications of Brexit This Practice Note looks at the conditions for obtaining retained and derived rights of residence under EU free movement law, as implemented in the UK until the end of the Brexit transition period (31 December 2020) by the Immigration (European Economic Area) Regulations 2016 (EEA Regs 2016), SI 2016/1052. All EEA nationals (other than Irish nationals) and non-EEA nationals relying on EU residence rights will need to have applied for pre-settled or
Defence and security procurement—Mexico—Q&A guide [Archived, 2021 edition]
Defence and security procurement—Mexico—Q&A guide [Archived, 2021 edition] This Practice Note contains a jurisdiction-specific Q&A guide to defence and security procurement in Mexico published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021). Authors: Santamarina y Steta SC—Sergio Chagoya D.; José Antonio López González 1. What statutes or regulations govern procurement of defence and security articles? Article 134 of the Mexican Constitution provides the general principles for public procurement in Mexico at the federal and state levels. The Law of Acquisitions, Leases and Services of the Public Sector (the Public Procurement Law), together with its ruling (the Regulation of the Public Procurement Law) comprise the main legal framework under which all federal public procurement for defence and security matters are regulated, and detail the general constitutional principles. At the local level, procurement for security goods and equipment is regulated in state and municipality's public procurement legal framework, all of which contain somewhat similar provisions to those contained in the Public Procurement Law and its ruling. 2. How are defence and security procurements identified as such and are they treated differently from civil procurements? Defence and security procurements are identified as cases where the exceptional procedure under article 41, subsection IV of the Public Procurement Law is to be used. Owing to their special status, they are treated differently from standard civil procurements in
Oil regulation—Thailand—Q&A guide
Oil regulation—Thailand—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to oil regulation in Thailand published as part of the Lexology Getting the Deal Through series by Law Business Research (published: June 2021). Authors: Chandler MHM Limited—Nuanporn Wechsuwanarux; E. T. Hunt Talmage, III; David Beckstead; Tachatorn Vedchapun; Noraseth Ohpanayikool 1. Describe, in general terms, the key commercial aspects of the oil sector in your country. The Thai petroleum concession has proven to provide a very stable foundation for investment in the oil and gas industry and downstream projects since 1971. However, Thailand has limited geological prospects for oil and gas. Thailand is a net importer of both oil and gas and its petroleum reserves are declining with increasing demand. Given the present petroleum resource base and demand profile, Thailand will remain a net importer of hydrocarbons for the foreseeable future. Based on the Energy Statistics of Thailand BE 2563 (2020), provided by the Energy Policy and Planning Office (EPPO), Thailand imported a total of 856Kbd (thousand barrels per day) of crude oil or approximately 87 per cent of consumption. Regarding the production of crude oil, in 2019, Thailand produced 126Kbd of crude oil, while Thailand produced 102Kbd of condensate. Natural gas plays a large role in satisfying Thailand's energy requirements. Based on the Energy Statistics of Thailand, Thailand produced 3,623 million standard cubic feet per day; whereas, the
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Consequences of termination clauses (construction contract)
Termination (consequences) Consequences of termination of a consultant’s appointment 1 Subject to the other provisions of this Agreement and without prejudice to any right of action then accrued to either party on termination the Consultant will be entitled to fees for all Services properly performed and completed at the date of termination of this Agreement. 2 [Upon termination the Employer
Indemnity clause—infringement of third party IP rights (consultant appointment)
Indemnity
Clauses—medical examination, medical report and health screening
1 Medical examinations and reports 1.1 The Employer will have the right at any time[ after you have been absent from work for more than [insert number] working days (whether consecutive or in total) in any [consecutive [enter duration, eg 52-week] period OR sick pay year (which runs from [insert date] to [insert date]] ] to require you to undergo a medical examination by your medical practitioner or an independent medical practitioner selected by the Employer. 1.2 The Employer will usually also ask you to authorise the medical practitioner, as required by law and/or professional guidance:
Settlement agreement additional clauses—resignation from directorship/office
Insert in operative provisions: 1 Resignation from directorship/office 1.1 If you have not already done so, you will on the date of this Agreement immediately resign from all offices held by you in, or on behalf of, the Employer[ and/or any Group Company] by delivering to the Employer a letter of resignation in the form set out in Schedule [enter number, eg 2]. 1.2 You will immediately on request do all and any acts and things as the Employer may require to effect and/or register your resignation under clause 1.1 above and from all other offices, trusteeships or appointments which you hold in connection with or by reason of your employment by the Employer[ and/or any Gro
Re-measurement clause
Remeasurement 1 [Gross Internal Area means the gross internal area of the Premises expressed in square [feet OR metres] and measured in accordance with the Royal Institution of Chartered Surveyors’ Property Measurement (2nd Edition). OR Net Internal Area means the net internal area of the Premises expressed in square [feet OR metres] and measured in accordance with the Royal Institution of Chartered Surveyors’ Property Measurement (2nd Edition).] 2 When the [frame OR shell OR [other relevant point of construction]] of each of the relevant parts of the Works i
Settlement agreement additional clauses — outplacement
[Insert as additional definition:] Outplacement Counselling services that meet conditions A to D inclusive in section 310 Income Tax (Earnings and Pensions) Act 2003[ and travel expenses incurred in connection with the provision of those services, that meet condition E in that section]; [I
Clauses—overseas assignment
1 Overseas assignment 1.1 You agree to be assigned to work for the Employer in [specify country or area in which the employer's operations are carried out] (the ‘Territory’) for [the period from [enter date] to [enter date] OR a period not exceeding [enter duration, eg ten weeks, three months, two years] from such date as the Employer may specify] (the ‘Assignment’). 1.2 During your Assignment, your duties will [consist of OR include acting as] [specify duties] in [enter location] and, at the end of your Assignment, the Employer will[ use its best endeavours to] find employment for you[ within its business] in a position and on terms no less favourable to you than you would reasonably expect to enjoy had your employment continued with the Employer in the United Kingdom with the Employer throughout the period on which you have been on overseas assignment. 1.3 During your Assignment, you will receive [enter currency and figure] to be paid (provided it is lawful to do so)[ in local currency] to your nominated bank account in [insert name of country OR the Territory] [instead of OR in addition to
No partnership or agency clause
1 No partnership or agency—short form Nothing in this agreement constitutes, or will be deemed to constitute, a partnership between the parties n
Clauses—deductions
1 Deductions 1.1 If you are for any reason indebted to the Employer for any amount[ including, without limitation, [set out examples]
EMI share option scheme rules
EMI share option scheme rules Rules of the [insert name of company granting EMI options] enterprise management incentives Scheme 1 Definitions and interpretation 1.1 Definitions In this Scheme, except where the context otherwise requires, the words and expressions set out below will bear the following meanings, namely: Acquiring Company • has the meaning ascribed to it in paragraph 39 of Schedule 5; Agreement • means the agreement entered into by an Eligible Employee, the Company and, where different, the person which grants an Option, in such form as the Directors will from time to time determine; Closed Period • means a period when the Directors are prohibited from dealing in shares under the Market Abuse Regulation (Retained Regulation (EU) 596/2014) or any other regulation, act, guidance or code on transactions in securities which applies to the Company, including any share dealing code of the Company; Committed Time • has the meaning given in paragraph 26 of Schedule 5; Company • [name of company granting options] (Company No [insert registered number]); Control • has the meaning ascribed to it in Schedule 5 and derivative terms shall be construed accordingly; Date of Grant • in respect of the Option, means the date on which the Agreement is entered into by all the relevant parties; Directors • means the board of directors of the Company from time to time or a duly authorised committee of such directors; Disqualifying Event • means the first to occur of an
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If an employer is looking to sponsor an existing employee with Tier 4 leave, can the employee be sponsored in a different role than what they were doing previously (eg a part time sales assistant applying for a full-time sales manager role)? Would the position change if the prospective employer is in the process of obtaining a sponsor licence?
If an employer is looking to sponsor an existing employee with Tier 4 leave, can the employee be sponsored in a different role than what they were doing previously (eg a part time sales assistant applying for a full-time sales manager role)? Would the position change if the prospective employer is in the process of obtaining a sponsor licence? To work in the UK, a person must be either: • a British citizen • an EEA national, or • have specific permission from UK Visas and Immigration (UKVI) Permission from UKVI is stated on a person’s biometric residence permit (BRP). Tier 4 leave usually comes with permission to work up to 20 hours a week during term-time. With this permission, our example employee does not need to be sponsored by their employer in their current part-time role. See page 50 of the Home Office: Tier 4 of the Points-Based System—Policy Guidance for specific information. If our example employee wants to work full time (other than during vacations or for a limited period at the end of their course), beyond the expiration of their Tier 4 leave, they will need to apply for leave under Tier 2, which is for sponsored employees. The restrictions on sponsoring an employee under Tier 2
What should I consider if my client wishes to apply under Tier 2 but the sponsor licence is yet to be granted?
What should I consider if my client wishes to apply under Tier 2 but the sponsor licence is yet to be granted? Can my client apply for leave to remain under Tier 2 even though a new sponsor’s licence has not yet been granted? If an application is lodged under the Immigration Rules pertaining to Tier 2 and a decision is made without your client being in possession of a Certificate of Sponsorship (CoS), you will need to advise your client that it will fall for refusal. If the client’s leave is due to expire shortly and they have been offered a job which will qualify under Tier 2 by an employer that needs to obtain a sponsor licence, it is important to make a request to the Sponsor Licensing Unit for the licence application to be expedited. You should ask for the application to be decided by, or in advance of, the date that the individual’s leave is due to expire. Can I ask the Home Office to hold off on making a decision on the leave to remain application until the licence is granted and the Certificate of Sponsorship is issued? When the Sponsor Licensing Unit was experiencing delays in processing applications, a provision was put in place to this effect. However, this provision has now been withdrawn. It may be possible to persuade individual caseworkers to
Where an employer intends to sponsor a new hire overseas under the skilled worker route, are there any workarounds in a situation where the new hire has a lengthy notice period (eg more than three months) with their existing employer and does not wish to resign before their visa is granted?
Where an employer intends to sponsor a new hire overseas under the skilled worker route, are there any workarounds in a situation where the new hire has a lengthy notice period (eg more than three months) with their existing employer and does not wish to resign before their visa is granted? For the purposes of this response, the sponsor will need to have a skilled worker licence to sponsor an employee. When assigning a defined Certificate of Sponsorship (CoS) to a worker, the sponsor must confirm the proposed start date of employment and the end date for sponsorship. However, anxious to have some certainty that relocation can go ahead, it is not uncommon for a proposed worker to want to wait until the visa is granted before handing in their notice. The following Immigration Rules are relevant to this situation: • the CoS must be assigned no more than three months before application • there can be no more than three months between the visa application date and the start date on the CoS. While the sponsor can push back the start date on the CoS after it has been assigned and prior to the grant of the visa per para S3.6 of Part 2 of the Workers and Temporary Workers: guidance for
If an employee who is appealing against their summary dismissal is subject to bail conditions barring them from accessing key witnesses, should the appeal hearing proceed nonetheless or should it be adjourned even if that might mean an unjust lengthy delay?
If an employee who is appealing against their summary dismissal is subject to bail conditions barring them from accessing key witnesses, should the appeal hearing proceed nonetheless or should it be adjourned even if that might mean an unjust lengthy delay? If an employee brings a claim of unfair dismissal, the burden is on the employer to prove that it had a fair reason for dismissal. One of the potentially fair reasons for dismissing an employee is conduct. However, in order to dismiss fairly, employers must also follow a fair procedure. Ultimately, it must be shown that dismissal is a fair sanction to impose. The Acas Code of Practice on Disciplinary and Grievance Procedures places obligations on both employees and employers to comply with its provisions or face possible sanctions. It sets out the standard of reasonable behaviour expected in most instances. For further information, see Practice Notes: • Dismissing fairly for conduct reasons • Reason for dismissal—conduct • Reason for dismissal—general, in particular section: Potentially fair reasons • Acas disciplinary and grievance code—procedural requirements According to the Acas Code of Practice, some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed before dismissing for gross misconduct. Further guidance is provided in the Acas guide: Discipline and
An employer enters into a collective redundancy consultation, at the end of which a number of employees are selected for redundancy. Those employees are given notice of termination by reason of redundancy, but, before the termination date, a change in circumstances means that the employer is able to push back the dismissals and keep those employees in employment for a further period. It accordingly extends the notice periods of those employees beyond their contractual notice entitlement, so that their dismissals will take effect in five months’ time. Is the employer required to start the collective consultation process afresh at this point, or would the original consultation process be sufficient?
An employer enters into a collective redundancy consultation, at the end of which a number of employees are selected for redundancy. Those employees are given notice of termination by reason of redundancy, but, before the termination date, a change in circumstances means that the employer is able to push back the dismissals and keep those employees in employment for a further period. It accordingly extends the notice periods of those employees beyond their contractual notice entitlement, so that their dismissals will take effect in five months’ time. Is the employer required to start the collective consultation process afresh at this point, or would the original consultation process be sufficient? In considering this question, it will be useful to consider: • what is the trigger for the collective redundancy consultation obligation, and • how long a collective consultation remains ‘effective’ The relevant legislation, section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) reads: ‘…(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.’ The duty to consult is therefore triggered by
Is an employee on garden leave who refuses alternative employment entitled to a statutory redundancy payment?
Is an employee on garden leave who refuses alternative employment entitled to a statutory redundancy payment? An offer of alternative employment in a redundancy situation is relevant both in the context of determining whether or not the employer has followed a fair redundancy procedure, as well as (as an entirely separate legal consideration) in the context of determining whether or not the employee is entitled to a statutory redundancy payment. In this Q&A we refer to the latter context. Assuming an employee is eligible for a statutory redundancy payment, the circumstances in which he or she may lose their entitlement to the statutory redundancy payment are as follows: • where an offer (whether in writing or not) is made to an employee before the original contract expires— ◦ to renew their contract of employment, or ◦ to re-engage them under a new contract of employment with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of their employment • the employee will lose their entitlement to a statutory redundancy payment— ◦ where the offer of the renewed or new contract is on the same terms as the old employment and the employee unreasonably refuses it ◦ where the offer of the renewed or new contract is on different terms, is suitable and the employee unreasonably refuses it ◦ where the offer
Are there any cases where it has been held that a dismissal of itself can amount to a provision, criterion or practice and therefore a failure to make reasonable adjustments?
Are there any cases where it has been held that a dismissal of itself can amount to a provision, criterion or practice and therefore a failure to make reasonable adjustments? The duty to make reasonable adjustments comprises three requirements. The element that is common to all three requirements is that they will only apply where a disabled person is put at a substantial disadvantage in relation to a 'relevant matter' in comparison with persons who are not disabled. The distinction between the three requirements is that each one contemplates a different cause of that substantial disadvantage: • the first requirement applies where a 'provision, criterion or practice' applied by or on behalf of the person subject to the duty (eg the employer) causes such a disadvantage • the second requirement applies where a 'physical feature' causes it • the third applies where a disabled person would be put at such a disadvantage if an 'auxiliary aid' were not provided In relation to the first requirement and the phrase 'provision, criterion or practice' (PCP), and your question as to whether a dismissal can of itself amount to a PCP: • the identification of the PCP is an important aspect of the tribunal’s task as it is the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments. The commentary in: Provision, criterion
Does the lower apprentice rate of the national minimum wage apply from the commencement of (i) the relevant apprenticeship agreement/contract or (ii) the worker’s employment under a different contract, if earlier?
Does the lower apprentice rate of the national minimum wage apply from the commencement of (i) the relevant apprenticeship agreement/contract or (ii) the worker’s employment under a different contract, if earlier? Whether the apprenticeship rate applies to a worker is determined in accordance with the National Minimum Wage Regulations 2015, SI 2015/621, reg 5. The lower apprentice rate of the national minimum wage applies if the worker is: • either employed under: ◦ a contract of apprenticeship (see Practice Note: Apprenticeships—Contract of apprenticeship) ◦ an apprenticeship agreement within the meaning of section 32 of the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009) (now repealed, subject to transitional and saving provisions) (see Practice Note: Apprenticeships—Apprenticeships frameworks), or ◦ an approved English apprenticeship agreement within the meaning of ASCLA 2009, s A1(3) (see Practice Note: Apprenticeships—Approved apprenticeship agreements) • or treated as employed under a contract of apprenticeship, ie engaged in one of the following Government arrangements: ◦ in England, Apprenticeships, Advanced Apprenticeships, Intermediate Level Apprenticeships, Advanced Level Apprenticeships or Trailblazer Apprenticeships ◦ in Scotland, Modern Apprenticeships ◦ in Northern Ireland, Apprenticeships NI ◦ in Wales, Foundation Apprenticeships, Apprenticeships or Higher Apprenticeships • and he is under 19, or within the first 12 months after the commencement of that employment The worker will therefore qualify for the lower apprentice rate of the national minimum wage if he is employed (or treated as employed) under a contract of
If an employee who is claiming a redundancy payment relating to lay-off or short-time working has given notice of termination of employment at the same time as serving their notice of intention to claim, and their notice of termination doesn’t comply with the statutory notice period requirements (but all other statutory requirements have been complied with), assuming their employer does not serve counter notice, does the employee forfeit their right to a redundancy payment under the Employment Rights Act 1996?
If an employee who is claiming a redundancy payment relating to lay-off or short-time working has given notice of termination of employment at the same time as serving their notice of intention to claim, and their notice of termination doesn’t comply with the statutory notice period requirements (but all other statutory requirements have been complied with), assuming their employer does not serve counter notice, does the employee forfeit their right to a redundancy payment under the Employment Rights Act 1996? An employee may claim a statutory redundancy payment without having been dismissed in one of two situations: • where the employee is ‘laid-off’ by the employer, ie when the employer temporarily shuts down its operation because it cannot find any or enough work for the employees • where an employee is put on short-time working—short-time working occurs where the employer requires the employee to do less than their full contractual hours and the employee receives less pay as a result The provisions set out in sections 147–154 of the Employment Rights Act 1996 (ERA 1996) govern the statutory scheme, whereby an eligible employee is able to claim a redundancy payment if they have been laid off or put on short time. Provided these provisions apply, and are complied with, an employee will be entitled to a statutory redundancy payment even though they haven’t been dismissed. In summary, a statutory
Is it the responsibility of an employment business (within the meaning of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 SI 2003/3319) or that of the hirer to give ongoing health and safety training to a temporary worker?
Is it the responsibility of an employment business (within the meaning of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 SI 2003/3319) or that of the hirer to give ongoing health and safety training to a temporary worker? You may wish to consider the obligations of the employment business and the hirer under: • the relevant employment agencies and employment businesses legislation • the relevant health and safety legislation Employment agencies and employment businesses legislation An employment business (often known as an agency) is a business that arranges temporary work for work-seekers with a 'hiring company'; the temporary worker (often referred to as an 'agency worker') is paid by the agency rather than by the company to which they are supplied (usually known as 'the supply of temporary workers' or 'the supply of agency workers') generally. For further information, see Practice Note: Employment agencies and employment businesses—Scope of the legislation. Regulations 18 and 19 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, SI 2003/3319 (Conduct Regs 2003) set out relevant information provision obligations. An employment business may not introduce or supply a work-seeker to a hirer unless: • the employment business has obtained sufficient information from the hirer to select a suitable work-seeker for the position which the hirer seeks to fill. That information includes, among other things, the experience, training, qualifications and any authorisation which the hirer
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Better choice could cut pension buyout costs by £100bn
Law360: Defined benefit (DB) retirement plans could lower buyout costs by as much as £100bn by offering members a broader range of choices for accessing benefits according to financial services consultancy Hymans Robertson.
What emerging superfunds mean for booming pension deals
Law360, London: The retirement industry this year is expecting the first UK companies to begin transferring their pension liabilities into a new type of investment fund, issuing a new challenge in the booming market for pensions deals so far dominated by insurance buy-in deals.
TPR and FCA: pensions consumer journey feedback statement
Pensions analysis: The Financial Conduct Authority (FCA) and The Pensions Regulator (TPR) (together the Regulators) have published a joint feedback statement (FS22/3) following their Call for Input (CFI), which sought views on how they could help consumers make informed decisions leading to better pension saving outcomes. The Regulators’ response to the CFI sets out the consumers pensions ‘journey’, areas of improvement through better communications to savers and enabling good decisions through guidance or regulated advice, prioritising value for money in pension schemes, and targeting ‘harms’ in the consumer journey. The Regulators want firms to consider the needs of consumers and following this statement it will be a case of ‘watching this space’ to keep an eye out for any new regulations or guidance. Riccardo Bruno, associate at Arc Pensions Law, considers the feedback statement and the implications for pension schemes.
Court of Justice rules on national legislation protecting DPOs against employment termination (Leistritz AG v LH)
Information Law analysis: The Court of Justice has ruled that national employment legislation, according to which a data protection officer’s (DPO) employment may only be terminated for just cause, are compatible with EU Law, but subject to restrictions. The ruling ends the uncertainty as to whether Member States may adopt stricter rules to protect a DPO against employment termination than those provided for under the General Data Protection Regulation (EU GDPR). However, the Court of Justice has made it clear that national provisions must not be allowed to undermine the objectives of the GDPR by preventing a termination in certain cases. For that reason, the decision can also be seen as a mandate to take greater account of GDPR objectives when deciding whether to terminate a DPO’s employment. This may lead to conflicts with traditional employment law principles of some Member States. The ruling is therefore of particular interest for legal practitioners dealing with labour and data protection law as well as for public and private bodies employing DPOs. Written by Thomas Albermann, associate at Bird & Bird LLP.
Settlement agreement between employer and surety did not bind contractor (ML Hart Builders v Swiss Cottage)
Construction analysis: The Technology and Construction Court (TCC) found that a settlement agreement made between the employer under a construction contract and the surety under a bond provided by the contractor was not binding on the contractor, in relation to the value of the final account under the construction contract. Further, the contractor was entitled to refer the value of the final account to a second adjudicator, where a previous adjudicator had declined to carry out the valuation.
Employment weekly highlights—30 June 2022
This week's edition of Employment weekly highlights includes: (1) developments on industrial action law, comprising: (i) regulations increasing from 21 July 2022 the damages limits that may be awarded against a trade union in any proceedings in tort; (ii) draft regulations which will permit employment businesses to supply temporary workers to employers to perform the work normally carried out by workers on strike; and (iii) a legal opinion on the government’s involvement in rail dispute pay negotiations, (2) an analysis of the new Bill of Rights introduced by the Ministry of Justice, (3) a judgment from the EAT concerning state immunity from claims in the context of military bases in the UK that are run by a foreign state, (4) a report on the future of remote working from the Migration Policy Institute, (5) an analysis of an employment tribunal decision finding that an employee with long COVID symptoms was disabled for the purposes of the Equality Act 2010, (6) a new Retained EU law (REUL) dashboard published by the Cabinet Office, (7) an Equality Impact Assessment (EIA) from the Home Office on digital-only right to work and rent checks, (8) updated Sponsor Guidance on Global Business Mobility (GBM) routes, (9) the launch of an inspection of the immigration system in relation to the agricultural sector, (10) the results of the 2019 Employers’ Pension Provision Survey published by the Department for Work and Pensions, (11) HM Treasury’s Women in Finance annual review, (12) dates for your diary, (13) updates to our case, consultation and legislation trackers, as well as to our Employment horizon scanner, and (14) new Q&As.
Tax weekly highlights—30 June 2022
This week's edition of Tax weekly highlights includes: (1) new regulations and guidance on remote observation of court and tribunal hearings and (2) HMRC removing Moscow university from the list of R&D qualifying bodies.
Private Client weekly highlights—30 June 2022
This week’s edition of Private Client highlights includes: (1) Companies House’s blog ‘Explaining the secondary legislation for the Register of Overseas Entities—part 1; (2) Lavinia Deborah Osbourne v (1) Persons Unknown (2) Ozone Networks Inc, in which the court granted an injunction over stolen NFTs held on constructive trust; (3) Official Receiver v Obaigbena, which considered the principles governing the disqualification period for directors in insolvency proceedings; (4) Analysis of Royal Commonwealth Society for the Blind v Beasant, which concerned the construction of a legacy determined by reference to the nil rate band; (5) The Department for Work and Pensions’ call for evidence on helping pension scheme members to understand pension choices; (6) Analysis of the Bill of Rights Bill and its implications for human rights in the UK, and (7) Devall v Ministry of Justice, which concerned the systemic and operational duties owed by a public authority to the deceased pursuant to Article 2 and 8 of European Convention on Human Rights.
Sponsoring nannies under the Skilled Worker route
Immigration analysis: James Perrott of Mayer Brown considers the sponsorship of au pairs and nannies under the Skilled Worker route including why the current Overseas Domestic Worker route is not suitable for families looking to bring them to the UK, who can sponsor them to work in the UK, situations where it might be possible for companies and practical tips.
Industrial action—restrictions on supplying temps to be repealed; damages cap increased; pay negotiations
Employment analysis: (1) The limit on damages that may be awarded against a trade union in any proceedings in tort will be increased for the first time since 1982, with effect from 21 July 2022, by the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022, (2) employment businesses will be permitted to supply temporary workers to employers to perform the work normally carried out by workers on strike, under the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, which will repeal regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, and (3) a legal opinion from Michael Ford QC advises that the government has extensive contractual powers to affect how train operators negotiate changes to employees’ terms and conditions.
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