Scotland

General News, Articles and Information from The POA North of the Border:

28.08.2014

Levy & McRae Newsbrief: August 2014

Restrictive Covenants, Notice Period and Salary

Can an employee be restrained from working for a competitor during his notice period (and the period covered by his restrictive covenants) where the employer stops paying his salary?

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Contractual disciplinary procedure did not allow for increased sanction on appeal

The Court of Appeal has upheld the High Court’s decision that an employer could not increase the disciplinary sanction it imposed following the employee’s appeal.

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Factors the EAT will take into account when ordering recovery of fees

In one of the few cases on the recovery of fees since their introduction in July 2013, the EAT has made a costs order against a respondent for the appellant’s EAT fees.

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Workers on call do not need to be at the workplace to be “working”

The Scottish EAT has held that ambulance paramedics who were contractually required to stay within a three-mile radius of the ambulance station and to respond within three minutes were working during such on-call periods.

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Withdrawing a Tribunal Claim - Tribunal not obliged to make further enquiries

Should an employment tribunal make enquiries of a Claimant when a claim is withdrawn, even in the heat of the moment?

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Illegality Defence in Discrimination Claims

Can an illegal immigrant bring a claim for discrimination despite the illegal nature of the contract?

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Reynolds v CLFIS (UK) Ltd [2014] UKEAT/0484/13

Where an allegedly discriminatory decision had been influenced by the views of other individuals that had been communicated to the eventual decision-maker, and where the burden of proof had shifted to the respondent to satisfy the employment tribunal that any difference in treatment was not on discriminatory grounds, it was necessary for the tribunal also to consider the mental processes of those others who had influenced the decision, and not just consider the mental processes of the person who took the decision.

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Issues Not In Dispute

May an employment tribunal determine issues not in dispute between the parties?

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Injury to feelings award of £10,000 was not supported by the facts

The EAT has allowed an appeal against an employment tribunal’s award in the middle Vento band for injury to feelings, which it held was not justified by the tribunal’s findings of fact.

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Reasonable adjustments: alternatives to requiring a redeployment interview

Where it is the employer’s practice in a redundancy situation to require those in the redeployment pool to attend an interview for the post for which they are applying, the employer has a duty to make reasonable adjustments to that practice in relation to an employee who the employer knows is unable, as a consequence of his disability, to attend ‘administrative meetings’.

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TUPE

Where a security contractor has been engaged for a company on land owned by a Borough, when the Borough take back the site and engage a new security company to look after the site pending its demolition, does a service provision change TUPE transfer under Reg 3 (1) (b) of TUPE apply?

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The timing of a TUPE transfer

When, precisely, does a TUPE transfer take place?

When responsibility for the management of the business or service transfers from one entity to another, held the EAT in Housing Maintenance Solutions Ltd v McAteer and others.

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