If the employer includes in a reference information on the employee’s levels of absence, and that information comprises information concerning health, then this will be special categories of personal data (formerly known as sensitive personal data) under Article 9(1) of Regulation (EU) 2016/679, the General data Protection Regulation (GDPR). When processing personal data, the employer will need to ensure: • that the data protection principles set out in Article 5(1) of Regulation (EU) 2016/679, GDPR are met • that a lawful condition for processing under Article 6(1) of Regulation (EU) 2016/679, GDPR applies • if special categories of personal data are being processed, that a specific condition for processing under Article 9(2) of Regulation (EU) 2016/679, GDPR also applies, and • that it complies with the ‘right to be informed’ by providing ‘fair processing information’, typically through a privacy

For information: • on the apprenticeship levy itself, see Practice Note: Apprenticeship levy • on how employers can use apprenticeship levy funds, see Practice Note: Apprenticeship levy—use of the funds by employers Rules on apprenticeship funding are set

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) contains provisions relating to industrial action. The statutory requirements relating to ballots are contained in TULR(C)A 1992, ss 226–232A and 234A. By TULR(C)A 1992, s 226A, the union must take such steps as are reasonably necessary to ensure that the employer receives written notice of the ballot not later than the seventh day before the intended opening day of the ballot. The notice must: • state that the union intends to hold the ballot • specify the date which the union reasonably believes will be the opening day of the ballot, and • contain either: ◦ a list of categories of employees

Under the Management of Health and Safety at Work Regulations 1999 (MHSW Regs 1999), SI 1999/3242, employers have the following duties in relation to women who are pregnant, give birth or are breastfeeding: • a general obligation to carry out a risk assessment where they employ women of child-bearing age, in respect of processes, working conditions, or physical, biological or chemical agents which could present risks to the health and safety of a new or expectant mother, or to that of her baby (MHSW Regs 1999, SI 1999/3242, reg 16(1)) • a specific duty in respect of an individual employee who notifies the employer of her pregnancy, recent child-birth or that she is breastfeeding, and whose work gives rise to risk to her health or that of her child and that risk arises from processes, working conditions or exposure to physical, chemical or biological agents (MHSW

When a contractor intends to pursue a claim following repudiation of its contract, it is necessary at the outset to confirm that the breach did in fact amount to repudiation and that the contractor has validly accepted such repudiation: see Practice Notes: Termination of a construction contract and Repudiation of contract for more information. Acceptance of a repudiatory breach by the contractor terminates the contract. Termination occurs prospectively, meaning that both parties are discharged from further performance under the contract with respect to their primary obligations, and their secondary obligations come to fore—see Photo Production Ltd v Securicor Transport Ltd. The implied

This Q&A has assumed that the report is being requested during employment, rather than before an offer of employment is made. Before obtaining a medical report, an employer will need to consider the legislative requirements: • for processing personal data and special category data under Assimilated Regulation (EU) 2016/679, UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018), as health information amounts to special category data • for consent from the employee or prospective employee under the Access to Medical Reports Act 1988 (AMRA 1988), and • if the medical report is being prepared before an offer of employment has been made, under the Equality Act 2010 For more information generally, see Practice Note: Medical reports—data protection issues and AMRA 1988. This Q&A assumes that the report is being requested during employment, rather

The right not to be unfairly dismissed is a statutory right arising under section 94 of the Employment Rights Act 1996 (ERA 1996). For employees starting fresh employment on or after 6 April 2012, the right not to be unfairly dismissed generally only arises when the employee, by the 'effective date of termination' of their employment, has been continuously employed for a period of at least two years (this two-year qualifying period is subject to a number of exceptions, such as where the reason or principal reason for dismissal is one which makes it automatically unfair, where the qualifying period does not apply). For further information, see Practice Note: Qualifying period for unfair dismissal. To succeed in a claim of unfair dismissal, the employee has to establish that he was dismissed

The Lexis®Ask service does not cover questions outside the jurisdiction of England and Wales. This Q&A refers you to the following information, based on the law of England and Wales, which you may find useful. An individual’s employment status is relevant for determining what their employment rights are; a number of key employment rights are only given to individuals who have ‘employee’ status. Many other rights are provided to a wider category of 'workers', which includes but is not limited to employees. For information about: • the status of employee and worker, generally, see Practice Notes: Employee status and Worker status • the rights available to those with employee or worker status, see: Employees and workers: checklist of rights • the different types of employment status, Practice Note: Deciding appropriate employment status • the relevance of employment status for tax purposes,

Assumptions/limitations: It is assumed that the new role is not substantially different to the old role to require a change of SOC code had the transition to new SOC codes not taken place. It would appear that it is not required to make a change of employment application in this circumstance. The relevant Home Office guidance has the following sections which have been underlined for convenience: Change of employment S9.13. Unless an exception at paragraph S9.17 applies, a worker must obtain a new CoS and make a new application for entry clearance or permission to stay (even if their existing permission is not due to expire for some time) if any of the following

Whether there is a redundancy situation For the purposes of determining whether, in the context of an unfair dismissal claim, the reason for dismissal is redundancy, an employee is dismissed by reason of redundancy if his dismissal is wholly or mainly attributable to: • the employer ceasing or intending to cease carrying on the business for the purpose of which the employee was employed by him • the employer ceasing or intending to cease carrying on that business in the place where the employee was so employed • the requirements of the business for employees to carry out work of a particular kind, either generally or in the place where the employee was employed, ceasing or diminishing (or being expected to cease or diminish) For further information, see Practice Note: Definition of redundancy—Redundancy payment entitlement, and fair reason

The auto-enrolment regime, established under Part 1 of the Pensions Act 2008 (PenA 2008), imposes three key enrolment duties on employers: • to enrol all of their ‘eligible jobholders’ automatically into an ‘automatic enrolment scheme’ (the auto-enrolment duty) • to enrol 'non-eligible jobholders' into an 'automatic enrolment scheme' if they choose to opt in • to enrol 'entitled workers' who request to join a scheme into a registered pension scheme The enrolment duty does not apply: • to jobholders who are already active members of a qualifying scheme, or • to entitled workers who are already active members of a registered pension scheme Employers that use a defined contribution scheme to meet their enrolment duties are also required to contribute a minimum amount to the scheme in respect of: • eligible

Almost all claims that may be brought in the employment tribunal derive from a jurisdiction created by statutory provisions. Each such set of statutory provisions will include a provision that prevents the parties (or potential parties) to an employment tribunal claim from reaching an agreement that purports to settle the claim and, in so doing, purports to have the effect of ousting the jurisdiction of the employment tribunal to adjudicate upon the dispute. These provisions are usually referred to as 'contracting-out provisions', and they appear in similar form in a wide variety of employment legislation, eg in the Employment Rights Act 1996, the Trade Union and Labour Relations (Consolidation) Act 1992 and the Equality Act 2010. They are designed to protect claimants (or potential claimants) by preventing them from signing away