Miscellaneous

When does sleep count as 'work' for NMW purposes?

‘Sleep-in’ residential care workers are only entitled to the National Minimum Wage (NMW) when they are awake and ‘actually working’, not when they are asleep and therefore simply ‘available for work’.

Employee - not employer - carrying out surveillance in the workplace

It was unreasonable for an employer to dismiss an employee for gross misconduct because the employee had installed a camera in his office whilst he was suspended from duty.

Trade union activities and detriment

When considering whether an employer has subjected a worker to a detriment with the sole or main purpose of penalising them for taking part in the activities of an independent trade union, the question of the employer’s ‘sole or main purpose’ is a subjective question, i.e., what was in the mind of the employer at the time.

Settlement agreements and misrepresentation

Where COT3s or settlements are concerned, the protection afforded by the ‘without prejudice’ rule may fall away where there is an allegation of misrepresentation.

Health and safety protections and 'workers'

‘Workers’ and not just employees should have protection from being subject to detriments on health and safety grounds and the right to be provided with PPE.

Employer not liable for injuries caused by practical joke

An employer was not liable for injuries inflicted on one of its contractors by one of its employees playing a practical joke.

Agency Workers Regulations: 'temporary' work requirement

A worker who had an open-ended contract of employment with an agency was nonetheless supplied to work ‘temporarily’ for an end user.

COT3 agreements and confidentiality clauses

An employee’s breach of a confidentiality clause in a COT3 settlement did not free his employer of its obligation to continue making instalment payments of the agreed settlement sum.

Employer not liable for employee's data breach

An employer was not vicariously liable for the actions of one of its employees who, to damage his employer, leaked personal staff data on a file-sharing website.

CCTV surveillance and the right to privacy

Shop workers’ right to privacy was not breached when a supermarket relied on covertly recorded CTV images to dismiss them for theft.

Privilege: don't be tempted to cherry pick

An employer had waived privilege in advice about dismissal and so couldn’t cherry pick which parts of the advice it disclosed.

Employee shareholder status

Someone who validly becomes an ‘employee shareholder’ did not revert to ‘employee’ status when he later concluded a service agreement with his employer.

Illegality and breach of immigration rules

A breach of the immigration rules did not mean that an employment contract was unenforceable.

AWR do not confer right to same contractual hours of work

An agency worker’s right to equal treatment in relation to the ‘duration of working time’ under the Agency Workers Regulations does not entitle him or her to the same number of contractual hours as a directly recruited comparator.

Making covert recordings at work

An employee making a covert recording at work may be guilty of misconduct.

Dismissal based on employee's phone data did not engage art. 8 of the ECHR

An employee’s right to privacy was not breached when his employer relied on data found on his phone during a police investigation into allegations of harassment against the employee by another colleague.

Direct pay offer to employees was not an 'unlawful inducement'

An employer who directly offered its employees a package of revised terms and conditions - going over the head of the recognised trade union - did not unlawfully induce them to cease collective bargaining.

Employer not liable for injury at Christmas party

An employer was not liable in negligence for an injury occasioned to one of its employees at the staff Christmas party; neither was it vicariously liable.

Personal liability of directors

Directors of a limited company can, in certain circumstances, be personally liable for inducing a company to breach an employment contract.

Suspension of employee not presumed repudiatory breach

Suspension can be a breach of contract – but on each occasion it is a question of fact. A tribunal must consider whether the employer has ‘reasonable and proper cause’ to suspend, not whether it was ‘necessary’ to suspend the employee.

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