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Entries in Employment Rights (11)

Wednesday
Jul262017

Employment tribunal fees unlawful

   The Supreme Court has declared this morning that fees for those bringing employment tribunal claims have been ruled unlawful and will be nullified. As a result, the government will possibly have to repay up to £32m to claimants in respect of fees paid between 2013 and now.

The decision follows the appeal by the trade union Unison who argued that the fees prevented many workers from getting ‘access to justice’.  The Supreme Court referred to the Government’s review on the impact of fees (discussed in our previous blog on 1 February 2017).  There has been ‘a sharp, significant and sustained fall’ ‘in the number of employment tribunal claims since the introduction of fees representing a reduction of 66–70% of cases. The proportion of claimants receiving fee remission was also lower than the government had anticipated. On this evidence the Court concluded that many people found the fees unaffordable and had been denied access to justice.

With fees ranging between £390 (Type A) and £1,200 (Type B) for a case to be heard at a hearing, the Supreme Court also concluded that it was indirectly discriminatory to charge higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims (such as unpaid wages). It was found that a higher proportion of women bring Type B claims than Type A and that they were placed at a particular disadvantage compared to men; and it could not be objectively justified why Type B claims were more expensive.

What happens next?

  • Anyone lodging a tribunal claim will not be required to pay the tribunal fees. Those who have paid the fees (be it Claimants or Respondents) will have to watch this space in terms of how to reclaim fees (if possible).
  • Whether the number of claims will rise as sharply as they fell on the introduction of the fees regime is something Employers, ACAS and the Employment Tribunals will be watching very carefully. If they do, significant resources will need to be put back into the system to avoid a further backlog of claims.  
  • The Court’s decision does not prohibit the government imposing fees in the future as the decision relates to the level of fees being unlawful and preventing access to justice. Further consultation on this is likely to be necessary before any decision is taken.
  • Immediate attention is required by the Employment Tribunals Service for reprogramming the online claim form system and for them to rewrite the tribunal rules.
  • There is also the question concerning the amount of people who chose not to bring a claim due to the cost of the fees and whether they will seek to lodge their claims out of time. Although the answer the question is unknown, anyone in this position will need to act immediately to avoid prejudicing their chances.

If you have any questions regarding employment tribunals or any other employment matter please contact Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).

For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Tuesday
Jul252017

TUPE: a cautionary tale of a business sale

In their latest blog, Employment law specialists, Angharad Ellis Owen and Greg Jones talk about the rights and obligations where employees transfer under TUPE.

You may have first-hand experience of business sales and having to comply with TUPE; alternatively, you may have only heard the acronym and wondered what it was all about!  TUPE refers to the Transfer of Undertakings (Protection of Employment) Regulations 2006; the purpose of which is to protect employees' rights on a business sale. TUPE essentially means that a buyer of a business steps into the shoes of the seller. A buyer therefore needs to know what it is they are in fact acquiring.  

What transfers under TUPE?

Where employees transfer under TUPE, various rights and obligations, powers and liabilities transfer with them to the buyer. For example, this includes:

  • the employees’ continuity of service;
  • the contracts of employment, including all terms and conditions of employment such as pay, commission and bonus entitlements, holidays and sick pay provisions; and
  • liability for the seller’s acts and omissions in respect of the newly acquired employees.

 

How do you know what you’re inheriting?

TUPE requires the seller to provide the buyer with ‘employee liability information’ (ELI) 28 days before the business transfer. The ELI must contain the information that an employer is obliged by law to provide its employees when starting in post; this includes detail as to the employee’s rate and method of calculating pay.

The Employment Tribunal can award compensation of a ‘just and equitable’ sum in the event of a failure to comply with the ELI obligation. Any award is generally subject to a minimum of £500 for each employee whose information was not provided or was defective.

What if the seller wrongly labels the contractual status of an entitlement?

In the recent case of Born London Ltd v Spire Production Services Ltd, the scope of the ELI obligation was considered. S supplied B with its ELI and stated that it operated a non-contractual Christmas bonus. After the transfer, B contended that this was incorrect, that the bonus scheme was contractual, rather than discretionary, and S was therefore in breach of its ELI obligation under TUPE. B estimated its losses would exceed £100,000.

The Employment Appeal Tribunal held that although the employer had to specify the method by which remuneration had to be calculated it did not mean that the employer had to state whether any aspect of the remuneration was contractual. It therefore followed that as part of the ELI a seller was not obliged to state whether remuneration, including a bonus, was contractual or not.

“…that is a matter for due diligence, it is not a requirement of TUPE”.

The Employment Appeal Tribunal also observed that a buyer may prefer to have greater clarity as to the precise nature (contractual or otherwise) of some of the matters listed, but that is a matter for due diligence, it is not a requirement of TUPE.

Where does this leave us?

The decision should not be seen as authority for the proposition that a seller can escape liability for inaccuracies in the ELI.  However, the case does confirm that the employee liability information is not confined to contractual entitlements only. From the buyer’s perspective it is important that further details of the precise contractual nature of these employee liabilities should be pursued through due diligence and ideally dealt with in warranties and indemnities contained in the business sale agreement. Conducting thorough due diligence will also enable a buyer to agree a suitable price for the business, taking into account any potential liabilities that arise from the sale.

If you have any questions regarding to TUPE or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (mail to:gregjones@greene-greene.com ~ 01284 717446).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

“This article was previously published in the EADT Business East Monthly Magazine on 18/7/17.”

Wednesday
Jul052017

Greene & Greene present Law Award at West Suffolk College

                      

West Suffolk College held its Celebration of Achievement Awards for 2017 in a large marquee in the college grounds on Friday 30 June. This annual event recognises students for their hard work and dedication to their chosen subjects.

Greene & Greene is proud of its association with West Suffolk College and sponsored its ‘Outstanding Student of the Year Business Management (Law)’ award for the second year. Angharad Ellis Owen, Employment Law Barrister at Greene & Greene, was delighted to present the award to Andrew Stokes for his hard work throughout the year, which was rewarded with excellent results.

Hospitality students from the College’s Edmunds restaurant catered for the gala dinner, with entertainment provided by the A Capella student group, Amado, and a choir from Conservatoire East.

If you have any questions regarding employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com/index.html and follow on Twitter @GreeneGreeneLaw.

Friday
Apr072017

Subject Access Requests: an Employee’s Motive is Irrelevant

In her latest Blog, Angharad Ellis Owen talks about Subject Access Requests in relation to the Data Protection Act 1998.

Under Section 7 of the Data Protection Act 1998 (DPA) an individual has the right to ask what personal data is held about them and to ask for a copy of that data.  This is commonly known as a Subject Access Request (SAR).

A SAR must be made in writing and a data controller (e.g. an employer) is obliged to comply with the request promptly and within 40 days of receipt, if it has received the necessary information from the individual.  Where an employer has failed to comply with the SAR provisions, an individual can ask the Information Commissioner to intervene.

There has been a recent trend for employees, or former employees, to use SARs as a means of obtaining evidence from employers to pursue grievances, seeking documents that may assist in litigation or using the process as a means of making life difficult for employers in order to encourage a settlement.

The obligation on employers to comply with SARs can be onerous and time-consuming. An employer will have to search computerised and non-computerised records for personal data. With the increased use of electronic communication, the volume of personal data can be extensive.  Employers also have to take care to protect the personal data of other individuals who may be identified as part of the search.

Historically, the Courts have held that the main purpose of a SAR was to allow an individual to check how their data was being processed and whether it infringed their privacy.  However, the Court of Appeal has recently considered the motives behind SARs and how they interrelate with ongoing litigation.  The Court has confirmed, as a principle, that a SAR may still be valid even if it is made for the collateral purpose of assisting with litigation.  The Courts have recognised that there is a need for proportionality, but it will fall on an employer to demonstrate that the supply of the information would involve a disproportionate effort.

Action

It is important for businesses and organisations to protect themselves with appropriate training and ensure that their IT and electronic communication policies are robust. It is also important to review, monitor and comply with the organisation’s Data Protection policy.

Useful link

The Information Commissioner has published a Code of Practice on dealing with subject access requests https://ico.org.uk/for-organisations/guide-to-data-protection/.

If you have any questions regarding the Data Protection Act 1998 or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Friday
Mar032017

Employment Tribunal Judgments Available Online

It’s been a long time coming, but the Employment Tribunal has finally been dragged into the modern age. The online database of Employment Tribunal Judgments in England, Wales and Scotland is now live.

In the past, access to Employment Tribunal Judgments was restricted to those willing to search the dusty records held in Bury St. Edmunds (for England and Wales) or Glasgow (for Scotland). The new online database provides free and instant access to Judgments. The change is likely to have a significant impact on whether grievances are pursued in the Employment Tribunal, and the way in which employers vet potential employees.

A selection of decisions from 2015, 2016 and 2017 are currently listed on the database, with all future Judgments to be added as soon as they are publicised. It is not yet known whether existing Judgments will be added. It is likely that the number of records involved may make the task almost administratively impossible.

Perhaps the most useful tool on the new database is the ability to carry out a free text search. This means that employers will be able to search for an individual by name. Likewise an employee or other organisation can search to see if the employer has been involved in previous Tribunal proceedings.

From an employee perspective this may be an incentive to attempt to settle the claim before issuing proceedings. Employees are unlikely to want prospective employers to know that they have issued proceedings against their previous employer. However, if that employee’s previous claim was for discrimination they will be protected from victimisation by the new employer. A rejection of the potential employee’s job application because of a previous discrimination claim would be unlawful. 

From an employer’s perspective the publication could affect their reputation. It is also possible that confidential or commercially sensitive information mentioned in evidence is referred to in the Judgment and made readily available online. This in turn may impact the employer’s recruitment and retention of staff. It also remains to be seen whether existing employees use the information to further their own grievances/claims against the employers, particularly in relation to discrimination claims.

It will be interesting to see whether this new initiative will encourage the parties to settle claims earlier to avoid their name appearing on the database.

If you have any questions regarding employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (gregjones@greene-greene.com ~ 01284 717446).   For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Thursday
Feb232017

New compensation limits in force from 6 April 2017

The Employment Rights (Increase of Limits) Order 2017 has recently been laid before Parliament and will increase the compensation limits and minimum awards that are payable under employment legislation from 6 April 2017.  

Notable changes include:

  • an increase to the limit on compensation for unfair dismissal from £78,962.00 to £80,541.00
  • the limit on a week’s pay for the purposes of calculating, among other things, statutory redundancy payments and the basic award for unfair dismissal, will increase from £479.00 to £489.00      
  • guarantee pay during lay off or short-time working will increase from £26.00 to £27.00 per day
  • the minimum basic award will increase from £5,853.00 to £5,970.00 in cases where a dismissal is unfair because the reason (or principal reason) for the dismissal is connected to: health and safety matters, acting as an employee representative, being a trade union representative, or performing functions as a trustee to the occupational pension scheme.

The basic award compensates employees for loss of job security and is calculated using the same formula as the statutory redundancy payment which is based on the employee’s age, length of service and weekly pay (subject to the above statutory limit).

The new rates take effect where the ‘appropriate date’ for the cause of action (such as the date of termination in an unfair dismissal claim) falls on or after 6 April 2017. Where the appropriate date falls before 6 April, the old limits will still apply, irrespective of the date on which compensation is awarded.

If you have any questions regarding the new compensation limits or any other employment law matters please contact Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.