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Insights

In my last Insight piece, A Warning About Warnings, I discussed the circumstances in which an employer may take account of expired warnings for the purposes of determining the outcome of a subsequent disciplinary process. But what if a final written warning is clearly live so that, on the face of it,  the employer is entitled to take account of that warning? Surely the employer who treats subsequent misconduct taken together with the final warning as sufficient to dismiss is likely to be on safe ground?

On 30 November 2016, the Scottish Law Commission (‘SLC’) published a discussion paper on penalty clauses as part of its current review of contract law in Scotland (‘2016 Discussion Paper’). It has been a long standing principle of Scots law (and the law of England and Wales) that penalty clauses are unenforceable. Identifying a need for review of this area of the law, SLC previously published a discussion paper (1997) and report (1999) on the issue which set out proposals for reform. However, following a consultation on a draft Penalty Clauses (Scotland) Bill (which took forward the recommendations made by the SLC) the Scottish Government determined that further work was required in relation to this area of the law.

Most larger employers will have a disciplinary policy involving an escalating process of warnings and culminating in dismissal. The policy may often set out examples of what may be considered to be gross misconduct (justifying dismissal of itself regardless of whether previous warnings have been issued) and it may also provide for warnings to have a limited life so that on expiry of the specified period they should not be taken into account in determining the outcome of a subsequent disciplinary process in relation to an act of alleged misconduct which took place after the expiry of the relevant warning.

Handling the obligations on employers arising in relation to employees with disabilities can be challenging and there are many hidden traps in the equality legislation which employers often fall into. We have discussed some of these in the past; see our recent blog 'Extremely Reasonable Adjustments: Just how far does the employer have to go?'.

This month, there have been two appeal decisions regarding disability law published which serve as useful reminders of some of the issues to look out for when dealing with disabled employees.

Continuing our ‘what to expect in 2017’ theme from last week, it is worth mentioning the controversial Trade Union Act 2016 (TUA).

The Trade Union Bill received Royal Assent in May last year to become the TUA. The TUA has amended several aspects of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The majority of the amendments are not yet in force, but some are expected fairly imminently.

With the anticipated triggering of Article 50 of the Treaty of the European Union (TEU) heralding the beginning of Brexit, the likely appeal of the Uber judgment relating to employment status in the gig economy, the introduction of the apprenticeship levy and potential overhaul of corporate governance amongst other developments set to kick-off this year, 2017 is set to be a notable one for employers!

The new year brings with it the end of the first reporting period under the Common Reporting Standard (CRS), a measure designed to assist in the fight against international tax evasion by requiring “Financial Institutions” to identify and report to their local tax authorities information on individuals who are tax resident in one country but who receive payments in another country.  This note summarises the obligations under the CRS as they apply to UK registered charities.

Although the 12 Days of Christmas have only just elapsed it appears that many high earning Executives will have already made more money than the average annual salary in the UK. The High Pay Centre has reported that the CEOs of the UK’s FTSE 100 companies will have earned the average UK salary of £28,200, by the first Wednesday of 2017 i.e. just 2.5 working days into the New Year.

The ratio of the average FTSE 100 CEO salary to the average full-time employee in the UK in 2015 was reportedly 129:1. Although perhaps not the most pleasing information to read on returning to work after the festive break, it is a significant reminder of the growing pay gap that we are facing in the UK. 

Chambers UK 2018

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