Insights & News

When can a termination discussion be without prejudice?

15 December 2022

For a discussion to be “without prejudice” there must be an existing dispute between the parties. A recent EAT case helpfully clarified when a grievance will count as a dispute for these purposes.

When can a mistake not be corrected? Court of Appeal rules collective agreements are not capable of rectification

03 November 2022

A recent Court of Appeal decision has confirmed that employers cannot seek rectification of mistakes in collective agreements. Where agreements with unions about terms and conditions have been wrongly recorded, employers will be limited to seeking to rectify relevant employees’ individual employment contracts in as far as they incorporate the mistaken terms.

Holiday pay for part-year workers should not be pro-rated

21 July 2022

The Supreme Court has ruled that the paid holiday entitlement of part-year workers should not be pro-rated for the weeks they do not usually work. This means that the 12.07% method for calculating the holiday pay hours of casual workers on permanent contracts is no longer a valid approach.

Court of appeal decision gives comfort on employment status for tax purposes

26 May 2022

The Court of Appeal has held that when determining employment status of an individual for tax purposes the contractual terms should not be disregarded unless they are unrealistic. This decision offers some comfort to businesses which engage self-employed contractors, including those in the gig economy.

A requirement to offer or accept a minimum amount of work is not a prerequisite of worker status, says the Court of Appeal

10 March 2022

In this latest employment status case, the Court of Appeal considered if an individual can be a worker without there being any commitment to offer or accept a minimum amount of work. The Court concluded that such a commitment is not a requirement of worker status and that a panel committee member was, therefore, a worker entitled to paid holidays.

Agency workers and the right to be informed of vacancies

22 February 2022

Agency workers must be informed of relevant vacancies with the hiring business but have no right to be considered for those vacancies on the same terms as the hirer’s direct recruits, according to a new Court of Appeal ruling.

Pimlico Plumbers part two - compensation for unpaid holiday throughout engagement

02 February 2022

In a decision with major implications across the gig economy and beyond, the Court of Appeal has ruled that workers who were incorrectly classified as independent contractors and were not paid for holiday can claim compensation for the whole period of their engagement.

Hong Kong court finds that pilot’s “standby” time did not constitute as rest days for the purposes of the Employment Ordinance

17 December 2021

In the case of Breton Jean v. 香港麗翔公務航空有限公司 (Hk Bellawings Jet Limited) [2021] HKDC 46, the Court found that the employer had failed to provide rest days to the employee as they had been expected to have a degree of flexibility during their standby period.

Hong Kong court upholds summary dismissal in light of employee’s secret business

17 December 2021

In the case of Cosme De Net Co Ltd v Lam Kin Ming [2021] HKDC 445, the Court of First Instance upheld an employer’s decision to summarily dismiss an employee who ran a competing business in secret.

Hong Kong court confirms that a party cannot enforce a contract with a unilateral mistake which he/she knew or should have known did not reflect the other party’s intentions

17 December 2021

Zhang Qiang v Cisco Systems (HK) Ltd [2021] HKCFI 694 is a case that reminds employers of the importance of putting the right figure in a settlement agreement – especially when dealing with an uncooperative employee. In this case, although ending in the employer’s victory, a typo in the settlement agreement had led to a decade-long lawsuit.

Hong Kong court confirms that the implied duty of mutual trust and confidence cannot be relied upon to recover damages for loss arising from the manner of dismissal

16 December 2021

In the case of Lam Siu Wai v Equal Opportunities Commission [2021] HKCFI 3092, the Court of First Instance held that the employer’s right to terminate in accordance with the terms of employment was not subject to the implied duty of mutual trust and confidence and so an employee could not rely on it to recover damages for loss arising from the manner of his or her dismissal.

Employment Appeal Tribunal confirms narrow scope of “special circumstances” defence for not consulting on collective redundancies

28 October 2021

In a case arising from the sudden collapse of the construction company Carillion, the Employment Appeal Tribunal (EAT) has confirmed the narrow scope of the “special circumstances” defence that may be available if an employer has failed properly to consult on collective redundancies. Special circumstances must involve something “out of the ordinary” or “uncommon”, and a gradual financial decline leading to insolvency is unlikely to meet this test.

Employment Tribunal rulings on Covid-19 issues – what can we learn?

02 September 2021

The pandemic required many employers to make difficult decisions in unprecedented and rapidly evolving circumstances, giving rise to concerns this would lead to a deluge of Employment Tribunal claims. We look at some of the early cases to see what lessons can be learnt when planning for a return to work.

Employment Tribunal quarterly statistics - a glimpse of things to come?

17 March 2021

The Ministry of Justice has released its quarterly report on the Employment Tribunal statistics for the period from October to December 2020, providing a fascinating glimpse into the claims landscape as the economic effects of Covid-19 unfold.

Employment Tribunals - will this winter see a flurry of claims?

07 October 2020

Imminent changes in Employment Tribunal procedures are likely to reduce case backlogs and lead to claims progressing to a hearing more quickly in a climate in which employment disputes are increasing. How will this affect employers?

How is Covid-19 affecting Employment Tribunals?

27 August 2020

Covid-19 has created a significant backlog problem in the Employment Tribunal. Employers are increasingly likely to see claims relating to furlough and/or a safe return to work, and many hearings will be dealt with remotely.

Law Commission proposes increased powers for Employment Tribunals

05 May 2020

A major new report on reform of Employment Tribunal hearing structures by the Law Commission includes various significant proposals on how employment and discrimination cases should be heard, time limits for bringing claims and compensation for breach of contract.

Dismissal unfair where investigating manager was motivated by dislike of employee's union activities

03 December 2019

An employee was unfairly dismissed because the disciplinary process was manipulated by a manager who was motivated by dislike of the employee’s trade union activities, the Employment Appeal Tribunal (“EAT”) has confirmed. This was despite the fact that neither the disciplinary nor appeal manager was influenced by prejudice against union activities.

Employer ordered to disclose privileged material

19 September 2019

In a recent decision, an employer was ordered to disclose comments received from its external solicitor in relation to the dismissal of an employee because it had deliberately disclosed other related privileged documents which were helpful to its case. It could not cherry pick which privileged documents to rely on.

Secret recording of conversations is not necessarily gross misconduct

12 July 2019

The Employment Appeal Tribunal has agreed that a claimant who secretly recorded a meeting with HR should have her compensation reduced, but did not accept that this was necessarily gross misconduct. The EAT also made a number of interesting comments about covert recordings and reductions of awards.