In the latest edition of our ‘Need To Know’ employment and HR newsletter, we look at whether bonus ‘clawback’ provisions constitute a restraint of trade, heated and accidental resignation and explain the new Employment Rights Regulations 2023.
- To resign or not to resign: Can bonus ‘clawback’ provisions constitute a restraint of trade?
- Resignations, heated and accidental
- Employment Rights Regulations 2023 (Amendment, Revocation and Transitional Provision)
We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.
HR Bullets
- If there is an agreement between a genuine partnership and an employer for the partnership to provide certain services then there cannot also be an employment relationship between the individual partner providing those services and the employer. Accordingly that partner cannot bring a claim of unfair dismissal against the employer (because they do not have the necessary status of being an employee), according to the Employment Appeal Tribunal (‘EAT’); Anglian Windows Ltd t/a Anglian Home Improvements v Webb [2023] EAT 138
- The EAT confirmed that the date from which time starts to run for the purposes of bringing an appeal where an Employment Tribunal has issued a written judgment and reasons, is the date of the Tribunal’s written judgment and reasons. It is not the date of a separate case management summary, produced part way through a hearing; Di Fiore and another v Introhive UK Ltd [2023] EAT 139
- The Inner House of the Court of Session confirmed that, for the purposes of ensuring gender balance on public boards in Scotland, the definition of “woman” in the Equality Act 2010 must include trans women with a gender recognition certificate; For Women Scotland Ltd v Scottish Ministers [2023] CSIH 37
- The Court determined that a NHS Pension Scheme member was not entitled to commuted ill health benefits because, on taking her outstanding annual leave into account, she had died in service; Campbell v NHS Business Services Authority [2023] EWCA Civ 1351
- A request to amend a nurse’s equal pay claim could not be permitted, as the claim had been struck out, therefore there was no surviving claim to amend. Any claim to set aside the dismissal decision was barred by res judicata or issue estoppel; Yovonie v East Sussex Healthcare NHS Trust [2023] EWHC 2618 (KB)r
- The Employment Tribunal held that a black police constable was subjected to race-related harassment in correspondence in which a police sergeant said he had stared “menacingly”; Akajioyi v Commissioner of the Police of the Metropolis [2023] 9 WLUK 343
- The Employment Appeal Tribunal confirmed that an employment contract is unlikely to be affirmed through engagement in a grievance or appeal process. It was also held that Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 is the authority on this; Brooks v Leisure Employment Services Ltd [2023] EAT 137
- Court of Appeal refused permission to appeal the High Court’s decision that the appellant, ClientEarth, had failed to make out a prima facie case that they should be allowed to continue a derivative claim against directors of Shell plc for alleged breaches of their general duties in connection with the company’s climate change risk management strategy, under section 26(1) of the Companies Act; ClientEarth v Shell Plc and others [2023] EWCA 1866