Harvey on Industrial Relations and Employment Law

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Commentary

Harvey on Industrial Relations and Employment Law is the definitive narrative on industrial relations and employment law and practice. It analyses the law, clarifies obscure passages and points of difficulty and fills in the practical background. The texts of all the relevant statutes and statutory instruments are set out in full, with detailed annotations. A comprehensive division of precedents completes this work.



SOURCE CURRENCY
Issue 314, April 2024

Division BI Pay

This Division has been updated generally to reflect the law as it stands on 1 January 2024. A new section has been added on bonus clawbacks (BI [35.02]); and the text has been updated for the National Minimum Wage (Amendment) Regulations 2024 (BI [181]–BI [186]).


Division DI Unfair Dismissal

This Division has been updated generally to reflect the law as it stands on 1 January 2024. The most important decision reported in this Issue is that of the EAT in Omar v Epping Forest District Citizens Advice (DI [231], DI [247]) which contains a re-evaluation of the law on apparently unambiguous resignations. The EAT has also handed down two judgments on the always difficult area of when an employee can be held to have affirmed a breach by the employer that would normally justify constructive dismissal, affirming existing law that simply using the employer's internal procedures to try to rectify the situation will not normally prejudice the employee's case (Brooks v Leisure Employment Services Ltd (DI [523.05])) and that the employee may be permitted a period of continuing to work and draw wages while doing so, even if they do not expressly state that they are working under protest (Leaney v Loughborough University (DI [527.01])). In Garcha-Singh v BA plc (DI [1265.02]) the EAT held that an ill-health policy may reasonably be adjusted to fit the circumstances, while Haycock ADP PRO UK Ltd (DI [1704]) is a relatively rare recent example of the application of the Williams v Compair Maxam guidelines on fair and unfair redundancy. Other case law added to this division includes SPI Spirits (UK) Ltd v Zabelin (DI [2527], DI [2768], DI [2768.01]) (disciplinary and grievance procedures; ACAS COP uplift; need for writing and application).


Division DII Detriment

This Division is up to date to 1 January 2024.


Division E Redundancy

This Division is up to date to 1 January 2024. The section on the Collective Redundancies Directive (E [808] ff) has been heavily revised in light of the Retained EU Law (Revocation and Reform) Act 2023. Case law added to this division includes: MO v SM (as liquidator of G GmbH), ECJ (E [2903]) (notification to Secretary of State; nature of the obligation; collective, not individual, protection); and R (on the application of Palmer) v Northern Derbyshire Magistrates' Court, SC (E [2937]) (collective redundancies; notification to BIS; offences; position of administrator).


Division F Transfer of Undertakings

This Division has been updated generally to reflect the law as it stands on 1 January 2024. There is discussion of the amendment made to reg 13A of TUPE 2006 by the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (F [192], F [221], F [234.11]).


Division M Trade Unions

This Division has been updated generally to reflect the law as it stands on 1 January 2024. Case law added to this division includes: Independent Workers' Union of Great Britain v Central Arbitration Committee, SC (M [48.04] ff, M [256.01]) (workers; casual relationship; relevance of art 11); and Embery v Fire Brigades Union, EAT (M [563]) (Certification Officer; appeal to the EAT).


Division NI Labour Relations

This Division has been updated generally to reflect the law as it stands on 1 January 2024. Case law added to this division includes: R (on the application of ASLEF) v Secretary of State for Business and Trade (NI [97]) (agency workers; government amendment struck down); Independent Workers' Union of Great Britain v Central Arbitration Committee, SC (NI [675.08], NI [902.01] ff, NI [902.10] ff, NI [1003.04], NI [1139.02], NI [1802.02]) (workers; casual relationship; relevance of art 11); NUJ and Business Insider Europe Ltd, CAC (NI [1014.05], NI [1234]); and Prospect and Alten Ltd, CAC (NI [1171]).


Division NII Industrial Action

This Division has been updated generally to reflect the law as it stands on 1 January 2024. Updated information has been added concerning the Strikes (Minimum Service Levels) Act 2023 and associated regulations (NII [131.01], NII [666.01], NII [2975], NII [3035], NII [3039]). Case law added to this division includes Warrington Borough Council v Unite the Union (NII [2020], NII [2622.05], NII [2781]) (balloting requirements; linking the ballot to the industrial action).


Division NIII Employee Involvement

This Division has been updated generally to reflect the law as it stands on 1 January 2024.


Division PIII Jurisdiction

This Division has been updated generally to reflect the law as it stands on 1 January 2024. The section on State immunity (PIII [181] ff) has been heavily revised and restructured, including coverage of the State Immunity Act 1978 (Remedial) Order 2023; Kingdom of Spain v Lorenzo, EAT and The Royal Embassy of Saudi Arabia (Cultural Bureau) v Alhayali, EAT (State immunity; effect on employment cases). Additionally, a discussion has been added of Gagliardi v Evolution Capital Management LLC (PIII [324.01] ff) (the appropriate forum; employee habitually working in the UK; claim by employer against employee; anti-suit injunction).


Division Q Statutes

This Division has been updated for developments set out in the Harvey bulletin or other recent case law to reflect the law as it stands on 1 January 2024.


Division R Statutory Instruments

This Division has been updated for developments set out in the Harvey bulletin or other recent case law to reflect the law as it stands on 1 January 2024. The following regulations have been added: the Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 (R [3542]); the Strikes (Minimum Service Levels: NHS Ambulance Services and NHS Patient Transport Service) Regulations 2023 (R [3548]); the Strikes (Minimum Service Levels: Border Security) Regulations 2023 (R [3555]); and the Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2024 (R [3559]).


Division S Codes of Practice and Other Materials

This Division is up to date to 1 January 2024. The following have been added: ACAS Code of Practice on requests for flexible working (April 2024) (S [310]); Code of practice issued by the Secretary of State under section 203 of the Trade Union and Labour Relations (Consolidation) Act 1992 on reasonable steps to be taken by a trade union (minimum service levels) (S [2503]); and Code of practice on preventing illegal working: Civil penalty scheme for employers (January 2024) (S [2701]).


Contributors

NAEEMA CHOUDRY, MA, LLM Solicitor; Partner, Eversheds Sutherland (International) LLP; a fee paid employment judge  Editor
COLM KELLY, LLB, LLM, of Lincoln's Inn, Barrister  Editor
BRIAN W NAPIER KC, MA, LLB, PhD Advocate of the Scottish Bar; of the Middle Temple, Barrister  Editor
JONATHAN BRAIN, BA Employment Judge; Recorder (civil)  Editor
SUSANNAH KINTISH Partner, Mishcon de Reya LLP  Editor
BARNABY LARGE, LLB, of Inner Temple, Barrister  Case notes editor
THOMAS CORDREY, MA of Inner Temple, Barrister  Editor
STEPHEN C MILLER, LLB, Partner, Clyde & Co  Editor
The Right Honourable Lord Justice Elias  Consultant editor
DAVID GREEN, MA of Inner Temple, Barrister  Editor
SURESH PATEL, Associate, Mishcon de Reya LLP  Editor
JOSEPH ENGLAND, LLB, of Lincoln's Inn, Barrister  Case notes editor
IAN SMITH MA, LLB of Gray’s Inn, Barrister; Emeritus Professor of Employment Law at the Univer- sity of East Anglia  General editor
ROSS BEATON, MA, MPhil, of Inner Temple, Barrister  Editor
JULIAN ALLSOP, LLB, LLM, of Lincoln's Inn, Barrister  Editor
DAVID PARSONS, Managing Associate, Mishcon de Reya  Editor
ADAM TURNER Partner, Mishcon de Reya LLP  Editor
OWEN WARNOCK, MA, Solicitor; formerly a partner in Eversheds Sutherland; Emeritus Professor of Employment Law, University of East Anglia  Editor
ADELE ASPDEN, MA, LLB, Employment Judge  Editor
SUSANNAH McGLONE, BA, Legal Director, didlaw  Editor
ELAINE BANTON, MA, LLB, Barrister,7BR Chambers  Editor
MATTHEW WOOD Associate, Mishcon de Raya LLP  Editor
JEFFREY JUPP, BA of Inner Temple, Barrister  Editor
MARTINA MURPHY LLB, LLM of Gray’s Inn, Barrister  Editor
KATE TEMPLE-MABE, BA, MA, LLB, of Inner Temple, Barrister  Editor