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Need to Know: Employment and HR Newsletter – Edition 16

Englisches Arbeitsrecht – Kündigungsschutz vor und nach Brexit

Welcome to the latest edition of Need to Know, Winckworth Sherwood’s Employment and HR newsletter. In this edition we take a look at employment relationships and contracts, social media pitfalls, covert recordings in the workplace and developments in employment law.

“To Record or Not to Record?” – Covert Recordings in the Workplace

An increasingly frequent question facing employers and employees alike -we consider the implications of the Employment Appeal Tribunal’s most recent guidance in Phoenix House v Stockman regarding employees making covert recordings in the workplace.

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Social media pitfalls: When may offensive content shared by an employee, land their employer in trouble?

Further to the recent Employment Appeal Tribunal case of Forbes v LHR Airport Ltd, Aleksandra Traczyk explores when offensive content shared on Facebook by an employee, may constitute “harassment” done “in the course of employment” and render the employer vicariously liable for the actions of the employee.

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What are you implying?

The express terms of an employment contract are usually fairly standard, biased towards the employer, and not particularly controversial (unless there is a serious breach of the express terms). However, employment relationships are more fluid and complex than the employment contract might suggest, therefore, it is often the terms implied into the employment contract that give rise to legal challenges and disputes. We provide a brief summary of the key terms which can be implied into the employment contract.

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Express HR: Employment law developments in bitesize chunks

  • The Employment Appeal Tribunal had jurisdiction to make a restricted reporting order extending beyond the date of its judgment (A & B v X & Y & Times Newspapers Limited). Judgment delivered on 26 June 2019.
  • An Employment Tribunal is not entitled to draw inferences on the basis that individuals are likely to hold stereotypical assumptions about women without examining further (Commerzbank AG v Rajput). Employment Appeal Tribunal judgment delivered on 28 June 2019.
  • An employer’s counterclaim can survive even where the employee has withdrawn their original claim (Cortel Telecom Ltd v Shah). Employment Appeal Tribunal judgment delivered on 3 July 2019.
  • The Court of Appeal decided that indirect discrimination within a pay band should be assessed by examining the average pay of women and men within that band, not by examining the distribution of women and men at each end of the band (McNeil and others v HM Revenue & Customs). Judgment delivered on 3 July 2019.
  • The Court of Appeal upheld an Employment Tribunal’s decision that Agency Worker Regulations 2010 did not automatically oblige an employer to provide the same number of hours to an agency worker as to a comparable direct employee (Kocur v Angard Staffing Solutions Ltd). Judgment delivered on 11 July 2019.


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