Where an employee has potential claims against the employer under the Employment Rights Act 1996 (or other employment legislation, or where the employee would otherwise have a claim for breach of contract, a settlement agreement (formerly known as a compromise agreement) can (in most cases) be entered into by the employee and employer to end the employment on the terms set out in that agreement. Among other things, the settlement agreement will deal with all payments and benefits owing or agreed to be paid to the employee. While the settlement agreement is signed on termination, not all payments and benefits within it will necessarily fall within Chapter 3, Part 6 of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003) which is a specific set of provisions dealing with payments and benefits

There are no statutory provisions relating to secondments, therefore ordinary contractual principles will apply and the starting point will be the written agreement, if any, setting out the terms of the secondment. It is clearly preferable for the secondment agreement (or other letter or document setting out the terms of the secondment) to provide that the secondment can be terminated before the end of the term, eg on notice or in specific circumstances, if that is the intention. See: • Checklist—information needed and issues to consider when drafting a secondment agreement, under the heading ‘Duration of the secondment and termination’, and • clause 2.1 of Precedent: Letter—secondment letter (employer—employee) In the absence of any such provision,

Section 41 of the Equality Act 2010 (EqA 2010) extends protection in the employment context to ‘contract workers’, ie those employed by one person (the employer) and supplied by the employer to another (the principal) to do work in furtherance of a contract to which the principal is a party, regardless of whether the employer is also a party to that contract (EqA 2010, s 41(5), 41(7)). The fact that the employer does not need to have contracted with the principal means that there may be a contractual

Right to return to work after maternity leave Consideration may need to be given to the nature of the job to which the employee is entitled to return. A woman who takes ordinary maternity leave (OML), which was not part of a longer overall period of continuous leave, is entitled to return to the ‘same job’ at the end of that leave, unless that job is no longer available. For further information, see Practice Note: The right to return to work after maternity leave—Return from maternity leave. A woman who also takes a period of additional maternity leave (AML) is entitled to return to her old job, unless it is not reasonably practicable for her to be allowed to do so. For further information, see Practice Note: The right

The starting point here is that the amount of redundancy pay that an employee is entitled is the higher of: • their statutory entitlement (assuming that they meet the eligibility criteria)—see Practice Note: Entitlement to statutory redundancy payment, and • any contractual entitlement—see Practice Note: Contractual redundancy payments The employee in the question will not be entitled to any higher sum than this unless the communication during the consultation process itself created a contractual entitlement. Whether a particular communication during the course of redundancy consultation could create a contractual right to payment at a specific level will depend upon the precise nature

The essence of employment is pay in return for work. Generally, there is a duty to pay wages whenever an employee is ready, willing and able to work. However, one can’t assume that the ‘no work, no pay’ principle applies in all cases. If an employee is ‘ready and willing’ to work, but is prevented from doing so by some ‘unavoidable impediment’, the employer may nevertheless be under a duty to pay the employee in the absence of an express or implied contractual term permitting them to withhold pay in those circumstances. It is not always evident what is meant by being ‘ready and willing’ to work. For a detailed overview of the case law in this regard, see Commentary: Does no work mean no pay?: Harvey on Industrial Relations and Employment Law [6]. It seems apparent that where an employee is ready

The two elements of this question are considered in turn below. Right to bring claims Where a dispute or claim arises in respect of an employee who works wholly or partly abroad and/or has a foreign employer, two questions will need to be determined: • what are the employee’s rights? • where should any litigation that may ultimately arise be adjudicated? In determining these questions, three main issues arise: • applicable law, ie which system of law is applicable to the contract of employment under consideration? • international jurisdiction, ie whose courts and/or tribunals should decide the case? • the territorial scope of relevant applicable or mandatory law, ie how the courts and employment tribunals decide what statutory rights (if any) the employee has, both in terms of: ◦ purely domestic law rights, and ◦ rights derived from EU law For

Fraud on the part of an employee is likely to amount to a fundamental breach of contract that, if the employee was still employed, would entitle the employer to terminate the contract of employment. Where the employer sets out in its disciplinary rules or disciplinary procedure a list, or examples, of what will amount to gross misconduct, this will usually include fraud (see eg Precedent: Code of conduct and disciplinary and dismissal procedure, clause 2.5). The employment tribunal only has jurisdiction to hear an employer’s claim for breach of contract against a former employee if, and only if, that former employee has included a contract claim in their ET1 claim form

The changes to the statutory flexible working scheme that came into force on 6 April 2024 are set out in amendments to sections 80F and 80G of the Employment Rights Act 1996 (ERA 1996) made by section 1 of the Employment Relations (Flexible Working) Act 2023 (ER(FW)A 2023). An employee may not make more than two flexible working applications to the same employer

For information on data protection issues in the employment context generally, see Practice Note: The UK GDPR and DPA 2018: key data protection issues for employment lawyers. Under Article 15 of Assimilated Regulation (EU) 2016/679, UK General Data Protection Regulation (UK GDPR), an individual (as a data subject) has the right of access, ie the right to obtain from their employer: • confirmation as to whether or not their personal data are being processed and, if so • the right to access the personal data (ie to receive a copy), and • the right to receive certain supplementary information The individual’s request for access is known as a data subject access request (or DSAR). For more information, see the section of Practice Note: Data subject access requests—issues

There is a duty to pay wages whenever an employee is ready, willing and able to work (Petrie v McFisheries. The case of Oyesanya v Mid-Yorkshire Hospital NHS Trust concerned the rather different situation where the claimant’s contract provided for payment of salary by bank transfer, but he preferred to be paid by cheque. He was not paid for the simple reason that he had never given the Trust his bank details. The Court of Appeal held that, in

The response below considers: • the protection from redundancy provided to a woman on maternity leave • the employee’s right to pay during the statutory notice period • whether statutory notice pay can be offset against statutory maternity pay Redundancy during maternity leave Special considerations apply where a woman on maternity leave is potentially redundant. In this situation, the dismissal will be unfair under section 74 of the Employment Rights Act 1996 (ERA 1996) and the Maternity and Parental Leave etc Regulations 1999, SI 1999/3312, reg 10 unless: • the employer first establishes that it was not practicable by reason of redundancy to continue to employ her under her existing contract of employment, ie that it was necessary to implement the redundancy