Category: Employment Law Updates


Ethical veganism as a philosophical belief – Just the Veganning?

Hopefully everyone had a relaxing Christmas and New Year, and what better way to start a new year than to post a blog! There has already been quite an interesting development at the start of the year with an employment tribunal ruling that ethical veganism is a ‘philosophical belief’ and thus is protected by the Equality Act under “religion or belief”.

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EU Settlement Scheme

Whilst the ongoing uncertainty surrounding Brexit and the extension of Article 50 until 31st October 2019 can make workforce planning difficult, employers should use this time judiciously. Organisations cannot only undertake contingency planning, but begin discussing EU Settlement applications with employees who are EU Nationals. By doing so, this will give your business and your employees the best chance at successfully navigating through Brexit and beyond.

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Inside or Outside of IR35? HR can help

The concept of a ‘disguised employee’ continues to be a source of discussion in all kinds of circles: accounting and taxation; HR and employment law; and indeed politics (when Brexit takes a backseat for just one second!). ‘Disguised employees’ is a term used by HMRC to define workers who are supplying a service to a client on a business-to-business basis, most commonly in the form of a limited company, when they are effectively operating as an employee of that company. The tax avoidance associated with this led to the introduction of IR35.

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Video: Gravitate HR GDPR Toolkit for Small Businesses


The EU General Data Protection Regulation (GDPR) comes into force on 25th May 2018. With our GDPR toolkit, Gravitate HR can help your organisation prepare for the new regulations by providing an E-learning module for all staff, a tailored GDPR Policy, and the relevant template correspondence.

You can contact one of our advisors in Edinburgh or Glasgow for further details.


Modern Slavery – October 2017 Update

Modern Slavery Act 2015

The UK government estimates that there are tens of thousands people in slavery in the UK and only 1% of victims see their exploiter brought to justice.  In 2015, the UK government introduced the Modern Slavery Act. This legislation focused on the prevention and prosecution of modern slavery and enhancing protection and support for victims. On the 4th October 2017, the UK government updated its guidance to businesses on preventing modern slavery. This blog looks at the key updates and how this affects companies.

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New bereavement leave allowance for parents

The Government has published proposed laws to grant employed parents two weeks’ paid leave if they lose a child under the age of 18. The Parental Bereavement (Pay and Leave) Bill will give a right to parental bereavement leave to all eligible employees. Employees with a minimum of 26 weeks’ continuous service will also be entitled to statutory bereavement pay.

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The types of tribunal claims that are expected to soar in the post-fee era

Following the major decision of the Supreme Court last month to declare employment tribunal fees unlawful, People Management asked some employment lawyers the types of cases the courts are likely to hear more of in the future.

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The ‘Scrapping’ of Employment Tribunal Fees – an HR perspective

One of the big business stories last week was the ruling by the Supreme Court that the controversial fees for bringing employment tribunal claims are unlawful, a ruling that was hailed as a “massive win for workers” by TUC general secretary Frances O’Grady.

In 2013, the Government introduced the fees with the goal of eliminating frivolous tribunal claims from an individual or group who knew that they would have very little chance of being successful. According to figures provided by the Ministry of Justice, the number of employment tribunal cases in 2012 generally averaged at slightly above 5,000 total cases per month. However, after the ruling in 2013, the total number of cases averaged between 1,500 and 2,000 per month, the highest number being 2,210 in March 2014 – well below the average number in 2012.

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Can Gender Pay Reporting Finally Close the Pay Gap?

Wednesday the 8th March marked International Women’s Day, which helps to promote the formation of an equal and gender inclusive working world. I was reminded of my ‘Equal Pay Day: How far have we come?’ blog in November 2016 about the historical fight for pay equality between men and women. Of course, the introduction of Gender Pay Gap Reporting in 2017 will be quite a significant legislative change and these regulations will come into force on the 31st of March 2017 for public sector employers, and the 7th of April 2017 for private and voluntary sector employers. Read more

Is an “off the record” conversation, really “off the record”?

Introduced in 2013, Section 111A of the Employment Rights Act 1996 allows employers to have “off the record” conversations with employees that cannot be referred to in any later dismissal proceedings.

Prior to this act being introduced, you would have had to have relied on the “without prejudice” ruling. Section 111 A is similar to the effect of the “without prejudice” rule except there is no requirement to have had a previous or ongoing dispute with the employee to engage in an “off the record” conversation.

As an employer, you may want to have this type of open conversation when you are considering terminating an employee due to conduct and poor performance issues, if the employment relationship just simply isn’t working, you want to avoid a lengthy and complex dismissal process or where you are concerned that there isn’t enough evidence to support a “fair” dismissal.

When having an “off the record” conversation, employers are protected in that the conversation will not be valid in any future unfair dismissal proceedings provided that it is not related to any improper behaviour, it relates to the end of an employee’s employment and a settlement offer has been made with the employee or there have been negotiations about the employment being terminated.

A recent interesting case, Faithorn Farrell Timms LLP v Bailey heard at a EAT, involved the claimant bringing a construction dismissal and indirect sex discrimination against her employer. This case highlights how the S11A privilege is more useful than the “without prejudice” rule when dealing with pre-termination conversations. The EAT held that:

  • Section 111A protects not just the detail of the offer but also the fact that the pre-termination discussions have taken place and this extends to any discussions held with a view to terminating the employment on agreed terms.
  • Internal conversations between different managers and HR are also protected as it is deemed only right that these conversations would had taken place as part of the general discussions.
  • The tribunal should have separated out the claims so that information not protected by section 111A could have been heard in relation to the sex discrimination claims.
  • If no improper behaviour is established then section 111A privilege cannot be waived, unlike without prejudice privilege which can be waived by the parties.

So, what does the findings of this case mean for employers? It shows just how complex the ”without prejudice” role is particularly where an employee is raising several claims, not just unfair dismissal.
As it is now clear that section 111A privilege cannot be waived, employers can have open correspondence with the employee during any period of negotiations and be covered by section 111A if they want this information ‘on record’. The open correspondence allows the employer to demonstrate ongoing communication and explain any apparent delay in any future litigation.

If you have any questions about how to have an “off the record” conversation or need any support in engaging in this type of negotiations, please give me a call on 0131 243 1377.