Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 is silent as to the manner or form in which a consultation should take place, and we are not aware of any specific authority on this point. It would seem that, provided the substance of the consultations meet the requirements of TUPE 2006, SI 2006/246, reg 13, it may not be necessary for them to take place face-to-face and a conference call, or series of conference calls, will suffice. The requirement of TUPE 2006, SI 2006/246, reg 13(6) is to ‘consult the appropriate representatives of [an affected] employee with a view to seeking their agreement to the intended measures’. Further, TUPE 2006, SI 2006/246, reg 13(7) requires the employer to ‘consider’ the representations made by the elected representatives and ‘reply’ to them. In the context

Omissions are a category of variation. Although most building contracts will contain provisions giving the employer the power to vary the works instructed under the contract, whether an employer can use the variation provisions to instruct any omissions from the original work will depend on the wording of the contract. For more about variations generally, see Practice Note: What is a variation on a construction project?. Sometimes, variation provisions in a building contract will expressly permit the employer to instruct the contractor to omit part of the works but this is not very common. Where a building contract does permit the employer to use the variation provisions to omit works, the extent of its right to do so will depend on the terms of that particular building contract. A right to omit work will not be implied in any variation clause—it must be expressly set out in the contract, where it is not, any omission of work will be a breach of contract

Payment of SMP Payment of statutory maternity pay (SMP) may be made in a like manner and at the same time as the employee would normally be paid. However, there is nothing in the legislation to prevent an employer from making payment of the employee's entire prospective entitlement to statutory maternity pay by way of a lump sum. Although this has certain administrative advantages, it is seldom a wise course of action for the following reasons: • employer's and employee's Class 1 contributions, and income tax under Pay As You Earn (PAYE) are payable in full on the single payment • the employer may be unable to recover the payment in full from that month's National Insurance contributions (NICs) • the employer runs the risk of being unable to recover the whole of the payment if for some reason it is shown to have been excessive (eg if the employee returns to work during the maternity pay period or the woman decides

General rules relating to direct age discrimination Under section 13 of the Equality Act 2010 (EqA 2010) a person directly discriminates against another person where: • he treats him less favourably than he treats or would treat others, and • he does so because of a protected characteristic Where the protected characteristic in issue is age, an employer can defend a claim of direct discrimination if he can show that the treatment is justified as a proportionate means of achieving a legitimate aim. Under EqA 2010, s 61, a ‘non-discrimination rule’ applies in respect of occupational pension schemes, whereby a responsible person (which can include an employer whose employees are, or may be, members of the scheme) must not, amongst other things, in carrying out his functions in relation to the scheme, discriminate against another person. Special exceptions relating to pension schemes There are, however, various exceptions with regard to the non-discrimination rule, set out in the Equality Act (Age Exceptions for Pension Schemes)

Is it lawful for an employer to pay contractual sick pay (including statutory sick pay) for 28 weeks only, and after that period, in accordance with the employer’s stated policy: • to make further payment of contractual sick pay conditional upon the employee providing evidence that they have made an application for Universal Credit • until such evidence is provided, not to pay contractual sick pay to the employee, and • once such evidence has been provided, to reinstate contractual sick pay but reduce it by the amount of any Universal Credit received by the employee? The right to statutory sick pay and the right (if any) to contractual sick pay should be considered separately. Employees are

The exclusion that you refer to is contained in the Construction Contracts (England and Wales) Exclusion Order 1998, SI 1998/648, art 6 and specifically relates to an agreement that ‘includes provision for the grant or disposal of a relevant interest in the land (which could be a freehold or a leasehold) on which take place the construction operations to which the contract relates’. The interpretation of this article was then tested in Captiva Estates Ltd v Rybarn Ltd (in administration) where an agreement to construct 28 residential flats together with underground and above parking, with payment being made in the form of a £1.15m fixed

This Q&A assumes that the employer operates a general business rather than operating in a sector, such as healthcare or education, where special rules may apply as regards personal relationships between employees and service users. There are no specific laws governing personal relationships entered into by employees. However, some employment law issues to consider would include: • sex discrimination, see Practice Notes: Direct discrimination and Indirect discrimination • sexual harassment, see Practice Note: Harassment • harassment under the Protection from Harassment Act 1997, see Practice Note: Harassment—Protection from Harassment Act 1997 • breach of duties of fidelity and confidentiality, see Practice Notes: The duty of fidelity and fiduciary duties, Confidential information and trade secrets in employment and The term of trust and confidence • breach of contract, see: Wrongful dismissal—overview • unfair dismissal, see: Unfair dismissal—overview It is generally regarded as unrealistic and too much of an interference with an employee’s right to a private life to place a total ban on personal

Employees are entitled to paternity leave and statutory paternity pay (SPP) in certain circumstances relating to the birth or placement for adoption of a child or children. Paternity leave can be either one whole week or two consecutive whole weeks. It cannot be broken up into odd days. In the case of a birth, if paternity leave is taken it must start and finish during the period which begins with the date on which the child is born and: • ends eight weeks

All employees are under a duty of fidelity to their employer, also known as the duty of good faith, or of loyalty. Fidelity is a broad concept containing a number of more specific duties, some of which overlap both with each other and with the duty of trust and confidence: • to behave honestly—the duty of fidelity requires that an employee is honest in their dealings with their employer • not to work in competition—employees may not work for a competitor organisation (including one they have set up) during their employment • not to make a secret profit—employees must not make secret profit, and must give to their employer any money that they do make • to disclose information—as with money, so all information created in the course of employment must be passed to the employer • not to misuse confidential information—any

See Practice Notes: • Employee status • Worker status • Deciding appropriate employment status • Employees and workers: checklist of rights See also: Checklist for assessing employment status. Ultimately it will be up to a court or employment tribunal to decide at the relevant time what the relationship is, but in order to reduce the risk of the arrangement being held to be one of employment, an employer will need to bear the following in mind: • ensuring that the key elements necessary to establish an employment relationship are not present (and this is the usual pitfall employers fall into); the reality of the relationship will be examined by a court or tribunal, not what the parties think it is or what they have labelled it • ensuring that any contractual documentation is consistent with the realities of the chosen arrangement (and is not a work of fiction). Also, remember that a contract, whether or not it is a contract

The answer to this question will depend on: • the circumstances of the particular employee • the employer's reason(s) for wishing to turn down the request For further information on flexible working applications generally, see our Practice Note Flexible working. Preliminary issues Changes to the flexible working regime that apply to applications made on or after 30 June 2014 mean that any qualifying employee can make a flexible working request, for any reason, not just childcare or caring-related reasons as previously. See Flexible working—Who is eligible to make a statutory request. Check if the employer has a flexible working policy—if there is one, the employer should ensure that it is followed. Ensure that any policy complies with the statutory procedure and that, even if there is no policy, the employer is aware of the statutory procedure and follows it. For further information, see Flexible working—Employer's response to statutory request. Entitlement The employer may reject the application if the individual making it is not entitled to do so. To be

For information on quarantine measures for individuals travelling to England during the coronavirus (COVID-19) pandemic, see Practice Note: Coronavirus (COVID-19)—sickness and other absence [Archived], in particular section: Quarantine measures for those travelling to England. How employers choose to deal with an employee whose holiday plans would require them to quarantine, or self-isolate, on their return may depend on: • whether the employee will be able to work from home during their quarantine period • the nature of the holiday entitlement in question, ie whether it is the employee's statutory entitlement under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833 or contractual In relation to statutory basic and additional holiday entitlement, the timing of leave is regulated by WTR 1998, SI 1998/1833, reg 15. However, these rather prescriptive provisions are subject to variation or exclusion by the employment contract or another relevant agreement.