Welcome to the January edition of Frontline. This month Tom Mintern, Associate, provides us with an immigration update, explaining the additional powers available under the recently promulgated Illegal Working Compliance Orders Regulations 2016.
Our case updates consider when expired disciplinary warnings can be relied upon when making a decision to dismiss, when termination of employment due to physical violence may be deemed unfair, and the need to expressly state the intention to settle entitlement to Statutory Maternity Pay in a COT3 form.
In addition, we bring you an update on Employment Tribunal reform and the Trade Secrets Directive, news from our Employment teams 'Beyond the UK' and details of upcoming events.
Closure & Compliance – An Immigration Update
Since 1 December 2016, immigration officials have been granted additional powers enabling them to close business premises for up to 48 hours, pending the outcome of an application for an 'Illegal Working Compliance Order'.
The closure of business premises, issued via a 'Closure Notice', is a fast power which may be used where an employer (or a person connected with the employer) operating at the premises is found to be employing illegal workers and has been previously non-compliant with illegal working legislation. The intention is for immigration officials to use a Closure Notice in the most serious cases, where previous civil penalties and convictions have failed to change employer behaviour and, usually, where a significant proportion of workers on the premises at the time of the visit are illegal. A Closure Notice will not be issued where an employer has a clean immigration record. Where a notice is issued, it is likely to prohibit access to the premises and paid or voluntary work on the premises. In addition to a Closure Notice, consideration will also be given to the service of penalties or prosecution for illegal working and other immigration offences. For further details on the potential sanctions available to the Home Office, including a summary of the new illegal working offences which were enacted in July 2016, please see our related article.
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Employers may rely on expired disciplinary warnings when dismissing
Stratford v Auto Trail VR Ltd UKEAT/0116/16/JOJ
Where an act of misconduct does not in itself constitute gross misconduct, reliance upon earlier disciplinary offences as the principle reason for dismissal may be seen as fair.
The Claimant had been employed by the Defendant for almost 14 years. During this time, he had been subject to 17 different formal disciplinary proceedings. In October 2014 the Claimant was caught holding his mobile phone on the shop floor, which was "strictly prohibited" according to the employee handbook. A disciplinary hearing was held and the Defendant decided to dismiss the Claimant.
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Employee unfairly dismissed despite his violent conduct
Arnold Clark Automobiles Ltd v Spoor UKEAT/0170/16/DA
In this case, Mr Spoor was dismissed for gross misconduct after he violently grabbed a colleague by the neck. At the Employment Tribunal he was successful in his claims of unfair dismissal, breach of contract and failure to pay notice pay as it was held that his employer, Arnold Clark Automobiles (ACA) had not undertaken a reasonable investigation and had dismissed without proper regard to all of the circumstances.
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Statutory Maternity Pay is due despite agreement settling "all and any claims".
Campus Living Villages UK v. HMRC and Sexton  UKFTT 738(TC)
In this case, the First Tax Tribunal ("FTT") made clear that if a settlement agreement is to settle claims for Statutory Maternity Pay ("SMP"), this must be expressly stated in the agreement.
The claimant was made redundant whilst she was pregnant and claimed unfair dismissal and discrimination on grounds of pregnancy related dismissal. As the claimant remained employed within 11 weeks of her expected week of childbirth, she was entitled to SMP. Further to the ACAS conciliation process, the case was settled by way of a COT3 form. The COT3 form confirmed that it settled "all and any claims [the claimant] may have relating to her contract of employment and its termination". The employer had intended that the payment be made in full and final settlement of all of the claims, including SMP. The claimant then complained to HMRC that she had not received her SMP.
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Employment Tribunal judgments going online
HM Courts and Tribunals Service (HMCTS) announced last year that ET judgments would be available in an online, searchable database at the end of 2016. The ET has since confirmed that judgments will be available early this year and that only new judgments will be published.
Consultation on Reforming the Employment Tribunal System
In December 2016, the Government launched a consultation on reforming the Employment Tribunal system.
The Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals have published a joint statement earlier this year outlining the proposed transformation of the justice system, in particular, significant reforms to the Courts and Tribunal system to make it "just, proportionate and accessible". As such, the Government is seeking views on the issues to be considered when implementing the wider justice system reform principles in the Employment Tribunal system.
The Trade Secrets Directive
James Froud, Partner, and David Samuels, Associate spoke to IPWatchdog.com about the Trade Secrets Directive and its effect on Brexit. You can read their full article here. James will be speaking about this topic and giving best practice advice for the best protection of business secrets as part of our First for Disputes Conference, taking place at our London offices on 9 March 2017. Click here for details and on how to book.
Beyond the UK
The latest edition of our monthly China Employment Law Update is online and available to read here.
From 1 January 2017 several changes to Polish labour law have come into force, including minimum remuneration, social benefit funds and an increase to the time an employee has to appeal against termination and file a claim. Review the changes here.
European & Asia-Pacific Employment & Labour Law Workshop – We will be in San Francisco on 7 March 2017 with members of our International Employment Group to deliver a workshop on European and Asia-Pacific employment and labour law, in the context of acquisitions and restructuring the workforce. Click here to find out more and RSVP.