Latest insights from our experts

Posted 14 August 2014
by Simon Sanger-Anderson

Tozers employment law newsletter – summer 2014

References and probationary periods Two recent surveys have highlighted the risk of candidates providing fake references and the fact that a large number of staff fail their probationary periods. This suggests that employers may need to review their procedures for checking references and for assessing probationary periods. The Federation of Small Businesses and BBC1’s Fake Britain worked together on a survey of 1,800 small firms and found that nearly one in five (17%) had discovered candidates with fraudulent references. According to an article in The Telegraph, another recent survey by Spring Personnel has found that almost one in five new employees fail to get past their probationary period or have their time on trial extended. Poor performance and absence were the most common reasons for a failure to pass. We have a range of materials to help you keep up to date with these issues including:

  • Checklist, Recruitment.
  • Employee reference
  • Disciplinary procedure: Employees on probation.
  • Implied terms: probationary periods.
  • Guidance note – can an employer dismiss an employee during their probationary period without following its disciplinary procedure?

Constructive dismissal: employee affirmed contract by giving far more notice than was contractually required

The EAT has held that an employee who gave much longer notice than was contractually required had affirmed his contract. He had therefore waived his right to claim constructive dismissal. The EAT emphasised that the question of whether a contract has been affirmed or terminated following an employer’s fundamental breach of contract is fact-sensitive. In this case, an employment judge was entitled to find that the giving of long notice, which had been for the employee’s own financial gain, had the effect of affirming the contract. In upholding the judge’s decision, the EAT clarified that it is possible for an employee to affirm their contract even after they have resigned in response to a repudiatory breach.

Statutory holiday pay should include a sum in respect of commission

The ECJ has held that, where a worker’s remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes a national law that calculates statutory holiday pay based on basic salary alone. If commission payments are not taken into account, the worker will be placed at a financial disadvantage when taking statutory annual leave as no commission will be generated during the holiday period. In such circumstances, the worker might be deterred from exercising the right to annual leave. This would be contrary to the directive’s purpose. This case was referred to the ECJ by the Leicester employment tribunal. The tribunal recognised that, under the natural wording of the Working Time Regulations 1998 and the week’s pay provisions of the Employment Rights Act 1996, the claimant was not entitled to a sum in respect of commission in his holiday pay. The case is now likely to return to the tribunal to consider whether the domestic legislation can be interpreted in line with the ECJ’s decision and, if it can, the level of holiday pay to which the claimant was entitled.

Flexible Working Regulations 2014

The Flexible Working Regulations 2014 came into force on 30 June 2014 when the amended right to request flexible working takes effect. Under the new regulations:

  • A request for flexible working must be made in writing, be dated and state whether the employee has previously made a request and, if so, when (regulation 4).
  • A request is made on the day it is received by the employer with provisions in respect of electronic, post and personal delivery (regulation 5).
  • The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002/3236) will be revoked in respect of requests for flexible working made on or after 30 June 2014. The requirement for 26 weeks’ continuous service to make a request and provision for compensation of up to eight weeks’ pay for breach of the statutory scheme will be provided by regulations 3 and 6 of the 2014 Regulations.

Tozers has produced a guidance note covering in more detail the operational detail of the new Regulations. Contact us for a copy.

Deduction for failure to serve notice period was not a penalty clause

The EAT has upheld a tribunal decision that a clause entitling an employer to deduct a month’s salary for failure to work their required notice period was not a penalty, despite the deduction being made on top of the employee not receiving their notice pay. In this case, the EAT held that a tribunal had been correct to conclude that the relevant clause was a genuine pre-estimate of loss rather than a penalty clause and was therefore enforceable.

Draft Equality Act 2010 (Equal Pay Audits) Regulations 2014 published

The draft Equality Act 2010 (Equal Pay Audits) Regulations 2014 were published on 19 June 2014. When brought into force, they will oblige tribunals to order employers who have been found in breach of equal pay law under the Equality Act 2010 to carry out equal pay audits. The government intends the regulations to take effect on 1 October 2014. They will only apply in respect of equal pay claims presented on or after that date. Micro-businesses, new businesses and certain employers who carried out equal pay audits in the three years preceding the breach identified will be exempt. An audit under the draft regulations would involve the publication of relevant gender pay information; identify any differences in pay between men and women and the reasons for those differences; include the reasons for any potential equal pay breach identified by the audit; and set out the employer’s plan to avoid breaches occurring or continuing.

Paternity and Adoption Leave (Amendment) Regulations 2014 published

The draft Paternity and Adoption Leave (Amendment) Regulations 2014 have been published. They will amend the Paternity and Adoption Leave Regulations 2002, partly as a result of the forthcoming right to shared parental leave. The proposed amendments would introduce protections for employees who suffer a detriment or are dismissed in relation to time off to accompany a woman to ante-natal appointments from 1 October 2014. They would also mean that, from 1 December 2014:

  • Employees cannot take paternity leave in relation to a child if they have already taken shared parental leave in relation to that child.
  • The provisions on the right to return after paternity or adoption leave would be amended.

The amendments would also mean that, from 5 April 2015:

  • The current requirement for 26 weeks’ service before becoming entitled to adoption leave would be removed.
  • Employees could not take paternity leave if they have exercised a right to take paid time off to attend an adoption appointment in respect of that child.
  • Employees would be protected against suffering a detriment or being dismissed in relation to time off for adoption appointments.

Constructive dismissal: delay in resignation because of sick leave The EAT has held that the fact that an employee is on sick leave is relevant when determining whether a delay in resigning precluded a constructive dismissal. In this case, the employee was on sick leave for the six weeks before he resigned. The EAT held that the test for constructive dismissal is one of conduct, not time. Inferences cannot be drawn so easily from an employee’s delay in resigning when they are on sick leave.

Deadline for TUPE employee liability information notification increases to 28 days

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (SI 2014/16) came into force on 31 January 2014. The regulations make a number of amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE). One such amendment is to the timeframe for providing employee liability information. Regulation 11(6)(a) of TUPE has been amended so that the deadline for notification of employee liability information to the transferee is increased, from 14 days to 28 days. Further advice Please contact our employment team at Broadwalk House, Southernhay West, Exeter EX1 1UA. Call 01392 207020 or email

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About the author

Simon Sanger-Anderson

Consultant and Solicitor

Consultant and solicitor within the firm's registered providers team