CALL IT OFF: Government consultation about new rules on postponing employment tribunal hearings

Employment tribunals currently have a robust set of case management powers for dealing with, amongst other things, postponements.  These powers are underpinned by a set of overriding objectives to which a tribunal must have regard when exercising its case management powers.  One of these objectives is avoiding delay.  Late postponements of tribunal hearings can be frustrating but sometimes unavoidable.  The current case management powers appeared to allow tribunals to deal adequately with postponement requests.

However, the government consulted over proposals to tighten up the availability of postponements in the employment tribunal.  Among the proposals were as follows:-

  1. Restricting a party to two postponement requests (unless there are exceptional circumstances).
  1. Postponement requests must be made at least 7 days prior to the hearing in question (unless a party can demonstrate exceptional circumstances).
  1. Obliging the tribunal to consider making a costs order if the request is made less than 7 days pre-hearing.

The response to the consultation was not massive, although the majority of those stakeholders who did participate were against the proposals.  The Government have opted to crack on with the proposals in any case.  It will be interesting to see what impact the new rules will have, although some might say “if it ain’t broke, don’t fix it”.  More to follow once the new rules take effect.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Making My Mark In The Work Place: My First Tattoo

On Monday, Lady Gaga unveiled her Bowie tattoo ahead of her Grammy’s performance.  On Tuesday, Justin Bieber disclosed that he regretted the tattoo of his ex-girlfriend, Selena Gomez.  On Wednesday, I decided that 2016 will be the year of my first tattoo.  My colleagues tell me that I am ridiculous, that I am too old for ink, that I will regret it forever and that I am suffering from some kind of mid-life crisis.  However if it’s good enough for Gaga and Bieber, it is good enough for me.

What does the law say about tattoos?

As an employment lawyer, I am frequently asked whether workers who are treated differently because of their body art have any legal rights against their employers.  Discrimination legislation protects workers against less favourable treatment because of sex, race, religion or belief, age and other protected characteristics.  This protection does not however expressly include protection for workers with tattoos.  Essentially workers with tattoos have no standalone protection under discrimination legislation.

What does an accredited specialist employment lawyer say about tattoos?

Having said all of that, certain religions and philosophical beliefs may encourage tattoos.  It is unlikely that Katy Perry, who has the word “Jesus” tattooed on her wrist, would be able to rely upon discrimination legislation if she were treated less favourably because of her tattoo.  (I am not convinced that her tattoo is a manifestation of her religion or belief)  On the other hand, a Hindu worker who was forced by an employer to cover up a tattoo may have a claim for discrimination because of religion or belief.

Similarly if reliable statistics were to demonstrate that there was a particular disadvantage to a particular age group within the workplace – for example younger workers who were more likely to have tattoos and more likely to get told to cover them up by their employer – a claim of indirect age discrimination could potentially be pursued.  Depending on the circumstances of the workplace, there may however be a defence open to the employer for both of these types of claim.

What would an employer say about my tattoo? 

Despite the potential risks outlined above, an employer is still entitled to set a dress code and appearance policy for all its employees.  For example, an employer could legitimately create a policy which stipulated that employees could not have visible tattoos, particularly for employees who had customer/client-facing roles.  An employer might also want to prohibit any offensive form of tattoo from the workplace and even make express reference to the acceptability (or otherwise) of piercings, hair styles and beards.  The same caveats above would apply.

Ultimately an employer should take legal advice about the content of such a policy before seeking to enforce it against its workforce.  However it would be equally as important to take legal advice about the implementation of such a policy, particularly to a workforce of existing staff.

What would my parents say about my tattoo? 

With a fair degree of certainty, I am sure that my parents will not approve of my proposed tattoo.  However with an equal degree of certainty, I can assure you that I will not be telling them.  And, if you happen to speak to them in the new few weeks, please keep it up your sleeve (… as will I).

Simon Allison
Partner – Head of Employment Law
Accredited by the Law Society of Scotland
as a Specialist in Employment Law

@EmpLawyerSimon
www.blackadders.co.uk   

Is the Force strong in a restrictive covenant?

John Boyega and Poe Dameron
Finn (left) left his “employment” as a Stormtrooper to join a rival competitor. Image: Disney/Lucas Films 

Unless you have been living in a galaxy far, far away, I am certain that you will have seen the latest Star Wars film. For most of you, you will be aware that ‘Finn’ does something that has never been done before at the beginning of the movie – he leaves his employment as a Stormtrooper with the First Order to join the Rebel cause. After training Finn for his whole life, the First Order might be a little peeved to discover that he just upped and left. They would be even more annoyed to learn that, post-employment, he joined their arch rival and fierce competitor. But is there anything the First Order could have done to prevent this from happening?

Contract

The answer is yes, it is possible for an employer to restrict where an employee works after leaving their employment. This does however have to be expressly stipulated in the employee’s contract. Such a clause will become active when an employee’s employment comes to an end. Although he did not expressly state he was leaving, Finn’s actions could be interpreted as an implied resignation. This would effectively bring his employment with the First Order to an end. In fact, it should have been obvious when Finn took a light sabre to his former colleagues that he had no intention to return to work. The First Order could have sought an interdict (or injunction) from the courts preventing Finn working for someone in direct competition to them.

Enforceability

The problem with restrictive covenants is their enforceability. How do you restrict their activities whilst they are not under your employment? How can you be aware of what they are getting up to? It is important that all contract clauses relating to restrictive covenants are reasonable in both the type of post-employment activities which are affected and their duration. We are more than happy to provide some Yoda-like guidance on any such contract clauses you are contemplating.

Seek advice

As well as putting restrictions on where employees can work after they leave their employment, an employer may put other restrictions on a departing employee. For example confidentiality clauses should prevent a leaving employee from unveiling any trade secrets. Finn was found to be blabbing about all kinds of First Order secrets throughout the film. This could have been prevented had the correct contract been put in place! Again there will be issues of enforceability, but we would be more than happy to give you advice on how to enforce such clauses.

Don’t wander into the Dark Side unnecessarily – let us at Blackadders show you the Light on restrictive covenants!

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

99 Problems But a Snitch Ain’t One

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The Government has recently updated the list of prescribed persons to whom workers can make protected disclosures.  A protected disclosure is a disclosure of information by a worker, which in the reasonable belief of the worker, is in the public interest and tends to show that one of a number of things has happened, is happening, or is likely to happen.  Those things are:-

  • The commission of a criminal offence;
  • The failure of a person to comply with a legal obligation to which he is subject;
  • A miscarriage of justice;
  • Damage to the environment; or
  • The concealment of information tending to show any of the above has happened.

A worker who makes such a qualifying disclosure is protected from being subjected to any detriment by their employer on the ground of having made the disclosure.  Similarly, there is also unfair dismissal protection where the reason or principal reason for dismissal is the employee having made a protected disclosure.  Unlike ordinary unfair dismissal claims, there is no 2 year minimum employment requirement before an employee can claim.  It can be brought from day one.  Therefore, these whistleblowing claims can be attractive for staff with less than 2 years’ service.  Similarly, compensation in such claims is uncapped!

A qualifying disclosure can be made to the employer directly.  It can also be made to anyone on the list of prescribed persons.  You can click here to view the recently updated list.

Employers are well advised to ensure that they have in place a robust whistleblowing policy for dealing with any staff protected disclosures.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Is Carbonite The Best Way of Freezing a Debtor?

Han Solo
Han Solo had debt issues he couldn’t resolve with Jabba the Hutt. (Image Credit: LucasFilms) 

Han Solo. The loveable rogue from the Star Wars saga; besotted by Princess Leia, best friends with Chewbacca the Wookie and cherishes nothing more than his prized spaceship: The Millennium Falcon.

However, those who have followed the Star Wars series will recall Han ran up quite a hefty debt with Jabba the Hutt, making several excuses as to why he couldn’t repay. His inability to stump up the cash ultimately led to Han being captured and frozen in carbonite as punishment.

Could Jabba have taken some other steps to avoid such an extreme measure!?

Why didn’t Jabba just have the Millennium Falcon arrested?

Vehicles such as expensive sports cars or luxury yachts are often the first items that spring to a creditor’s mind when considering how to recover the debts they are owed. However, this option may not be as attractive as it first appears. The vehicle must be owned outright by the debtor and cannot be leased to them, for example obtained by hire purchase. Given that the Millennium Falcon was Han’s (having won it in a bet from friend and fellow smuggler Lando Calrissian), why did Jabba not seize this as repayment?

Well, although it was Han’s main and beloved asset, once arrested the vehicle is stored and then auctioned. The difficulty being that frequently the price obtained is only a fraction of the actual value of the asset. It is therefore unlikely that auctioning off such a “piece of junk” would have been sufficient to redeem Jabba’s debt.

Jabba Han
Image credit: Filespecs

Well, what about freezing Han’s bank account?

One of the most effective methods of recovering a debt is via bank arrestment. Unlike many other types of debt recovery once a court order is obtained for payment no further notice needs to be provided to the debtor. This has the advantage of not tipping the debtor off and preventing them from having the time to move their assets off world and out of reach. Provided the bank account is in credit and exceeds a minimum protected balance, the account is frozen and after 14 weeks, if the debt is still not paid, the funds are transferred to the creditor. So why didn’t Jabba simply do this and watch the credits roll in?

It could be that as a struggling smuggler Han was living in his overdraft or maybe his bank balance was below the protected balance. However, the most likely explanation is that Han chose to bank in Coruscant, and banks in foreign jurisdictions frequently refuse to freeze accounts on the basis of a Scottish Court order until the court order is made enforceable by their own domestic legal processes.

If he couldn’t do that, then why didn’t Jabba just have arrested Han’s wages?

Another method of recovery frequently used in cases involving individuals is an earnings arrestment. Once a court order is obtained, Sheriff Officers serve a “charge for payment” which is effectively a written notice giving the debtor 14 days to pay the debt or face debt recovery. Once the notice period expires an arrestment can be served upon the Debtor’s employer and a proportion of their wage is paid to the creditor each month.

Unfortunately for Jabba it appears that Han Solo was a sole trader and as such it would not have been possible to employ this method of debt recovery

So, was Jabba right to freeze Han?

Carbonite
Han Solo in Carbonite – Copyright 2012 by William Beem

 

There are other options which available to settle this debt, including Han filing for bankruptcy, which is a topic we will discuss in our next blog. Essentially, when creditors are faced with a debtor with little or no realisable assets it may often be better to avoid the expense and inconvenience of attempting to recover relatively minor debts or, alternatively – in the case of Han Solo simply freeze the debtor as a warning to others!

If you are considering commencing debt recovery against a debtor, we would advise you not to have them cast in carbonite (or at least not straight away). Our Dispute Resolution team (although not fluent in Wookie speak or Huttese, Jabba’s native language) would be more than happy to offer you advice on the steps that you should consider taking.

Alastair Johnston
Solicitor – Dispute Resolution
@LitigationLawyers
www.blackadders.co.uk