Preparing to compete
Is it gross misconduct for an employee to take preliminary steps towards setting up in competition with his employer?
Not necessarily, according to the Employment Appeal Tribunal in Khan v Ladsker Child Care. For a summary dismissal for gross misconduct to be fair, the misconduct must be capable of amounting to a fundamental breach of contract. Although employers have a lot of freedom to define what they will treat as gross misconduct, that freedom is subject to limits on restraint of trade.
This case has been sent back to the Employment Tribunal for a re-hearing because the Tribunal had previously failed to consider whether the information the employee had used for his own purposes was actually confidential to the employer.
Ladele and other freedom of religion cases due to be heard in the European Court of Human Rights
Earlier this month the European Court of Human Rights heard the combined appeals of Ladele and McFarlane v the United Kingdom and Eweida and Chaplin v the United Kingdom to establish whether the right to manifest religion or belief, as protected by Article 9 of the European Convention on Human Rights, was breached when:
- Ms Ladele was disciplined for refusing to carry out civil partnership ceremonies.
- Mr McFarlane was dismissed for refusing to provide psycho-sexual counselling to same-sex couples.
- Ms Eweida and Ms Chaplin were restricted from visibly wearing a cross or crucifix at work.
We’ll keep you updated regarding the decisions in these cases when the Judgments are released.
Enforceability of non-solicitation restrictive covenant
In Safetynet Security Ltd v Coppage, the Mercantile Court held that a six month non-solicitation restrictive covenant was enforceable. This restriction sought to prevent a director from soliciting anyone who was a customer at any point during the director’s employment of Safetynet Security. The Court decided that the covenants did not have to be restricted to customers who the director had had dealings with over the last 12 months of his employment. The restriction was appropriately drafted given the director’s seniority and integral role within the organisation and the size of the employer’s client base.
The Court also provided some useful guiding principles when considering the reasonableness of such non-solicitation restrictions:
- The Court should first consider the construction of the clause for its pure meaning.
- The Court should then consider the object of the restraint, here, protection of the former employer’s customer base and goodwill.
- Finally, the Court must construe the clause in context and have regard to the factual matrix at the date at which the contract was made.
Umbrella Contracts/Continuity of Employment
When carers employed by a contractor were engaged under a zero hours contract, could the Tribunal find that they were actually employed under an umbrella contract with continuity of service preserved throughout?
Yes, said the Employment Appeal Tribunal (EAT) in Pulse Healthcare v Carewatch Care.
Carers’ contracts with Carewatch Care were taken over by Pulse Healthcare following a re-tender. The carers were then given zero hours contracts by Pulse Healthcare. These stated that there was no obligation on Pulse Healthcare to provide work and the carers were free to work for another employer. The EAT held that these contracts did not reflect the reality of the situation between the parties. The carers were obliged to carry out the work offered and do it personally. Also, they were not working under individual contracts but rather one global contract, with continuity of service preserved throughout. This distinction is important as employees with sufficient continuity of service are protected from unfair dismissal.
Coming soon – Increases to National Minimum Wage rates
From 1st October 2012 the following increases to the national minimum wage come into effect:
- The Standard Adult Rate (for employees aged 21 and over) will increase to £6.19 per hour from £6.08
- The Apprentice Rate will increase to £2.65 per hour from £2.60
The Development Rate (for employees aged 18 to 20) and the Young Workers Rate (under 18 but above the compulsory school age) will stay at £4.98 and £3.68 per hour respectively.
Employers should ensure that their payroll departments are aware of these increases and that all eligible employees are receiving at least the national minimum wage from 1st October onwards.
To for more information on any employment law or HR issue get in touch at contact@integralegal.co.uk