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Employment weekly highlights—27 June 2024
NEWS
This edition of Employment weekly highlights includes: (1) an EAT judgment about the approach employment tribunals should take when considering an application to extend time for a late response and the extent of a respondent’s participation in the proceedings when the application is refused, (2) analysis by Julian Milford KC of the Court of Appeal’s decision on a discrimination claim brought by contract workers against the client, (3) an EAT judgment that retired judges were not discriminated against because of their part-time status as recorders when they were not enrolled in a more favourable pension scheme on appointment to the office of circuit judge, (4) the Council of the EU’s negotiating mandate on a revised European Works Council Directive, (5) updates to the Home Office guidance on right to work checks, (6) UKVI/Home Office update to the licensing authority guide to right to work checks, (7) analysis of the impact of the government’s increased salary thresholds for skilled worker visas, (8) dates for your diary, (9) updates to our case and legislation trackers and our horizon scanner, and (10) new Q&As.
Insurance mediation activities
GLOSSARY
This term used to describe regulated activities when the regulated investment is a contract of insurance.
What is the benefit of one party undertaking or entering into a covenant with another named party on a certain action/matter within a general multi-party commercial agreement (as opposed to just agreeing to perform the action)?
Q&As
Undertakings may have specific meanings and remedies in particular industry sectors (for examples, see Practice Notes: Undertakings (covenants) and Irrevocable commitments and letters of intent). An undertaking is a promise that one party will do something in the future. The word ‘undertakes’ may be replaced in a contract by ‘shall’, ‘will’ or a covenant to act in a particular way. The courts would interpret a multi-party agreement which includes an obligation on one party
Under the General Data Protection Regulation, Regulation (EU) 2016/679, is it permissible for a data processor to charge a data controller for assisting with migration of personal data to the controller (or a third party) when the relevant agreement governing the processing (eg outsourcing agreement) terminates?
Q&As
We assume that this Q&A is referring to the General Data Protection Regulation, Regulation (EU) 2016/679, Art 28(3)(g) (the GDPR): ‘…That contract or other legal act shall stipulate, in particular, that the processor… at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State
Can the beneficiary of a guarantee claim amounts under a guarantee in addition to the amounts owed to it from the principal debtor which have been guaranteed?
Q&As
Principle of co-extensiveness As explained in The secondary nature of the contract: Paget's Law of Banking [18.6]-[18.8],a guarantee obligation is secondary and accessory to the obligation the performance of which is guaranteed. The guarantor's liability for the non-performance of the principal debtor's obligation is co-extensive with that obligation. If the principal debtor's obligation turns out not to exist, or is void, diminished or discharged, so
If a self-employed contractor wishes to bring a claim in the County Court on the basis that they are in fact a worker and should have been paid the national minimum wage (NMW); does the time limit for bringing a claim run in respect of each instance of failure to pay the NMW payment, or from the most recent instance?; if the parties did not classify or treat the individual as a worker and therefore not paid the NMW, is this a mistake of law or fact for the purposes of extending limitation under section 32(1)(c) of the Limitation Act 1980?
Q&As
For information on the national minimum wage (NMW) generally, see Practice Note: National minimum wage. In principle, a worker may enforce their NMW entitlement by: • bringing a breach of contract claim in the High Court or County Court, or in the Employment Tribunal, or • bringing a claim for unlawful deduction from wages in the Employment Tribunal An individual may also, if they wish, seek a declaration that they are a worker within the meaning of the National
Where an employer and employee have verbally agreed to a termination of the employee’s employment on a certain date, and a settlement agreement has been issued to the employee setting out terms for the termination by mutual agreement, what happens if the employee has not instructed a solicitor to finalise the settlement agreement by the agreed date? Must the employer continue to pay sick pay if the employee is off work sick, or is the verbal agreement sufficient to treat the employee’s employment as having terminated on the agreed date, allowing the employer to stop paying sick pay?
Q&As
A conversation between an employer and employee about the termination of the employee’s contract on mutually agreeable terms can, potentially, be protected: • under the without prejudice rule • under the rule regarding 'pre-termination negotiations' (Section 111A of the Employment Rights Act 1996 (ERA 1996) For further information, see, generally, Practice Note: Without prejudice and pre-termination negotiations in employment. This effectively allows the parties to discuss termination terms, including the termination date, without being bound until the terms of agreement are subsequently
Statutory demands: what to do if you receive one—checklist
CHECKLISTS
A statutory demand is a formal written demand for payment of a debt. See Practice Note: What is a statutory demand?. • Do not ignore a statutory demand. It may result in your company being wound-up by the court or you being made bankrupt. • Can you genuinely dispute the sum—are the contract goods faulty, have the goods been delivered? Do you have a valid cross-claim
A transfer of part has been completed and the transferor and transferee have executed the document in original and counterpart. Is the transferee under an obligation to send its original signed transfer to the transferor or will a certified copy suffice?
Q&As
In answering this Q&A, we have assumed that the sale of the property is subject to the Standard Commercial Property Conditions (SCPCs) (Third Edition). SCPCs, para [7.6.5] states that: ‘If after completion the seller will remain bound by any obligation affecting the property which was disclosed to the buyer before the contract was made, but the law does not imply any covenant by the buyer
EU MiFIR—trading obligation for derivatives
PRACTICE NOTES
This Practice Note explains the trading obligation for derivatives under the Markets in Financial Instruments Regulation (EU) 600/2014 (EU MiFIR) (which, together with the recast Markets in Financial Instruments Directive 2014/65/EU (EU MiFID II), took effect on 3 January 2018) and covers: (1) the regulatory context of the trading obligation, (2) the counterparties to which the trading obligation applies (certain financial counterparties and certain non-financial counterparties), (3) the requirement that a derivative contract which is declared to be subject to the trading obligation must already be subject to the clearing obligation under the European Market Infrastructure Regulation (EU) 648/2012 (EU EMIR), (4) which derivatives are subject to the trading obligation, (5) the treatment of package orders or transactions, (6) the exemption for post-trade risk reduction services, (7) the regulated trading venues on which derivatives must be traded (regulated markets, multi-lateral trading facilities (MTFs), organised trading facilities (OTFs) and equivalent third country trading venues), (8) the reforms to the trading obligation for derivatives made by Regulation (EU) 2024/791 (the MiFIR Review). For general information on
Where A and B have been negotiating a settlement of their dispute and drafted a settlement agreement but have not yet signed it, can A rely on the terms of that unsigned agreement in circumstances where the limitation period has now passed?
Q&As
There are various ways in which a dispute can be settled: • by exchange of mail • by entering into a contract • by entering into a deed • by agreeing a consent order • by agreeing a Tomlin order • by other means that do not involve the recording of the element of consent In order for there to be a contractually binding settlement: • there must be an acceptance of the offer (final and unqualified assent to an offer) • the
Where the employee has to pay to park on the employer’s premises, if the employer makes a deduction from the employee’s wages in respect of those parking charges, what is the effect of the exclusion in ERA 1996, s 27(2)(b)?
Q&As
Under section 13 of the Employment Rights Act 1996 (ERA 1996) an employer cannot make any deductions from the wages of a worker unless: • the deduction is required or authorised to be made by virtue of: ◦ a statutory provision, eg the requirement to make deductions for income tax or National Insurance contributions via Pay As You Earn (PAYE), or ◦ a relevant provision of the worker's contract, eg where