For information on constructive unfair dismissal generally, see: • the section of Practice Note: Definition of dismissal in unfair dismissal entitled: Constructive dismissal • the section of Practice Note: Definition of dismissal in unfair dismissal entitled: Relationship between constructive and unfair dismissal The right not to be unfairly dismissed generally

In order for an employee to be eligible to be granted an enterprise management incentives (EMI) option, it is a statutory requirement that the average amount per week of the employee‘s committed time must equal or exceed: • 25 hours a week (regardless of any other economic activity they also undertake), or • if less, 75% of their working time For full details of these tests and how ‘committed time’ and ‘working time’ are determined, see Practice Note: EMI—what makes an employee eligible?—Working time requirement. In summary, ’committed time’ means the time the employee is required to spend working as an employee on the business of the company or the group (as applicable). On the basis that a zero hours contract does not require the employee to spend

For further information about harassment generally, see Practice Note: Harassment. Harassment is prohibited conduct under the Equality Act 2010 (EqA 2010) if it is: • unwanted conduct, which is • related to a relevant protected characteristic that the recipient has, of which race is one, and • the conduct has the purpose or effect of: ◦ violating the recipient's dignity, or ◦ creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them The protected characteristic of race includes: • colour • nationality • ethnic origins • national origins For an overview of the protections and liabilities arising out of acts and omissions that amount to race discrimination or other forms of prohibited conduct that are connected to race, nationality or ethnic or national origins, see Practice Note: Race discrimination. Unwanted

Section 2 of the Mental Health Act 1983 (MeHA 1983) makes provision for a patient to be admitted to a hospital and detained there after an application for admission for assessment has been successfully made, for the purposes of assessing their mental health. MeHA 1983, s 3 makes provision for a patient to be admitted to a hospital and detained there, after an application for admission for treatment has been successfully made. The Mental Capacity Act 2005 (MCA 2005) specifies a number of principles that apply for the purposes of that Act. These include: • a person must be assumed to have capacity unless it is established that they lack capacity • a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so

In addressing this query, you may wish to consider: • in relation to criminal convictions, cautions, offences, conduct or circumstances, the provisions of the Rehabilitation of Offenders Act 1974 (ROA 1974) and the exceptions to it, and • the data protection issues under Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR), and the Data Protection Act 2018 (DPA 2018) ROA 1974 and exceptions You may first wish to consider whether the role in question is excepted from the protections of ROA 1974, s 4(2), either because: • it is one of those in relation to which a spent conviction or caution will always need to be disclosed, even if it is spent, or • it is one of those in relation to which a conviction or caution

Can an employer ask a job applicant to give details of their criminal records history at the interview stage? Consideration should be given to: • the provisions of the Rehabilitation of Offenders Act 1974 (ROA 1974) and the exceptions to it • the effect of Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018) Consideration should first of all be given to whether the role in question is excepted from the protections of ROA 1974, s 4(2), either because: • it is one of those in relation to which a spent conviction or caution will always need to be disclosed, even if it is spent, or • it is one of those in relation to which a conviction or caution will

Following the repeal (with effect from 1 October 2013) of explicit Equality Act 2010 (EqA 2010) protection for employees against repetitive harassment by third parties (such as customers and suppliers), an employer now has no explicit liability under the EqA 2010 (as amended) for the harassing actions of third parties. That does not necessarily mean, however, that the employee has no protection, and the employer no liability, in such circumstances. The question of whether an employer might, in some circumstances, become liable for the harassing actions of a third party was considered in pre-EqA 2010 case law. Treated with caution and having proper regard for the changes in the legislation that have occurred since they were decided, these cases still offer some valuable guidance in this area. The Court of Appeal in Unite the Union v Nailard

This Q&A has assumed that the worker has employee status, but the response also includes some information regarding duties owed by a worker or consultant. The employment status of the individual may be relevant when considering the scope of the duties that are owed to the employer. For information on employee and worker status generally, see Practice Notes: Employee status and Worker status. This response assumes that the worker has employee status but also includes some information regarding duties owed by a worker or consultant. Terms of the contract The contract of employment may be made up of all or any of the following: • express terms (which may be written or oral) • implied terms • imposed terms • incorporated terms For more information generally, see Practice Notes: Types of contractual term in employment and The term of trust and confidence. Duties of a worker or consultant In the case of a consultant, the obligations implied into the relationship between the

Once it has been established that a claimant has the right to bring an unfair dismissal claim—in other words, that he was an employee, he was dismissed, his claim was presented in time and he has the requisite continuous employment, it will generally be for the employer to show what was the reason or, if there was more than one, the principal reason for dismissing the employee, and that it was a potentially fair reason for dismissal. Where the employer alleges that the true reason for dismissal is a potentially fair one but the employee disputes this and alleges instead that

This Q&A considers the following questions: Can an employer claim liquidated and ascertained damages (LADs) where there is uncertainty around whether the completion date should have been extended as a result of an earlier delay, for which the contractor has made an extension of time (EOT) claim but it hasn't been awarded as the contractor has not yet provided sufficient substantiation? What if there is a cap on liquidated damages which is reached anyway as the contractor is still in delay even if its EOT claim is approved, and is time barred from making a further claim for this second delay? Subject always to the terms of the specific contract, LADs for delay are normally payable by the contractor in respect of the period starting from the ‘completion date’ (or similar terminology) as defined in the contract until practical completion is achieved. The contract will invariably allow for the completion date to be varied from time to time

Where a contractor is in breach of contract, this may entitle the other contracting party to claim damages for losses caused by the breach. A repudiatory breach of contract however is a breach so serious that the innocent party is entitled to elect to treat the contract as being terminated with damages being able to be claimed as a result. Examples of repudiatory breach could be a refusal to carry out further work. The innocent party can when faced with a repudiatory breach accept the repudiation, terminate the contract, thus bringing to an end any further obligations of the parties under

Since the abolition of the default retirement age and the repeal of the statutory retirement provisions in 2011: • compulsory retirement is prima facie direct age discrimination under section 13(1) of the Equality Act 2010 (EqA 2010), and • retirement is no longer a potentially fair reason for dismissal of an employee Forcing an employee to retire will therefore risk a possible age discrimination claim and an unfair dismissal claim. If the primary aim is to avoid such risks, the employer will have to wait for the employee to voluntarily retire at the time the employee chooses to do so. For further information on the employment law issues relating to retirement generally, see Practice Note: Retirement. Employer justified retirement age Retirement of the underperforming employee is, however, possible if the employer has an employer justified retirement age (EJRA). Age discrimination is unique. Unlike other forms of direct discrimination under EqA 2010, direct age discrimination can be objectively justified, under EqA 2010, s 13(2). An employer can therefore lawfully retire an