Category: Termination of employment

UK: re-engagement ordered following unfair dismissal, notwithstanding contributory fault

18 April, 2019

The recent tribunal case of Fotheringhame v Barclays Services Ltd highlights the risk of an employee obtaining a re-engagement order following a successful unfair dismissal claim, even where there has been some contributory fault on the part of the employee. … Read more

UK: Increases to statutory rates and new workers’ right to payslips from April 2019

8 April, 2019

Final regulations were approved on 28th March increasing the penalty for aggravated breaches of employment rights from £5,000 to £20,000, with effect from 6 April 2019. These regulations also provide for two other changes to come into force from 6… Read more

Hong Kong: Disciplinary Procedures & Privilege

4 April, 2019

Two recent English decisions highlight the particular challenges when managing legal professional privilege in the context of resolving employee issues. We consider these decisions and how the principles may apply in Hong Kong in relation to dominant purpose, waiver and… Read more

UK: ‘bad leaver’ provision triggered by resignation was not a penalty

21 March, 2019

The Employment Appeal Tribunal has ruled that 'Bad Leaver' provisions in Articles of Association requiring forfeiture of shares were not subject to the law on penalty clauses where triggered by an employee voluntarily resigning on notice, as repayment did not… Read more

UK: ‘reasonable and proper cause’ needed to justify suspension pending disciplinary investigation

20 March, 2019

The Court of Appeal has ruled that suspension pending a disciplinary investigation does not breach an employer's implied duty of trust and confidence, provided the employer has 'reasonable and proper cause'. An employer does not need to establish that it… Read more

UK: Government consultation on regulation of confidentiality clauses in settlement agreements and employment contracts

12 March, 2019

Further to its response to the Women and Equalities Select Committee report last December (see here), the Government is consulting until 29 April 2019 on proposals to regulate confidentiality clauses (commonly referred to as "NDAs" or non-disclosure agreements) in employment… Read more

UK: dismissal for personal reason on occasion of TUPE transfer automatically unfair

8 March, 2019

Employers should resist the temptation to use the occasion of a TUPE transfer to dismiss employees (with two years' service and so eligible to claim unfair dismissal) with whom there is an ongoing performance or misconduct issue, as this is… Read more

UK: dismissal automatically unfair where employer used TUPE transfer as opportunity to dismiss for pre-existing concerns

7 March, 2019

The Court of Appeal has confirmed that an employee may be automatically unfairly dismissed by reason of a TUPE transfer even if the employer has some other, personal reason to dismiss but has chosen to act on it because of… Read more

UK: interim injunction prevents workplace culture disclosures to media

7 March, 2019

The appropriate use of confidentiality agreements in the employment context has come under a lot of scrutiny given the #MeToo campaign; a recent case illustrates how the courts may approach the issue of enforceability. In Linklaters LLP v Mellish, Linklaters was… Read more

Korea: More Changes To The Employment Regime

28 February, 2019

South Korea continues to overhaul its labour and employment landscape. We look at some upcoming changes to the notice of dismissal provisions and the prohibition of workplace harassment rules – both effective this year. ... Read more

Vietnam: Changes to Labour Regulations

4 February, 2019

On 15 December 2018, Decree No. 148/2018/ND-CP ("Decree No. 148") came into effect. Decree No. 148 introduced amendments to Decree No. 05/2015/ND-CP, the legislation designed to provide guidance on the implementation of the Labor Code. The key changes are explained… Read more

UK: Budget 2018 announces NIC change delay and new minimum wage rates

1 November, 2018

An important announcement in the Budget for employers to note was the decision to delay by a further year the introduction of employer Class 1A NICs on termination payments over £30,000, until April 2020. There will also be changes to… Read more

UK: Employers may need to go further than strict compliance with the statutory right to a companion to ensure fairness

3 September, 2018

Employees have a statutory right to be accompanied to a disciplinary or grievance hearing by their chosen companion and, if that companion is unavailable on the date set, to have the hearing postponed by 5 working days. A failure to… Read more

UK: poor communication of successful appeal could itself amount to constructive dismissal

1 August, 2018

The Court of Appeal in Patel v Folkestone Nursing Home Ltd has confirmed that where an employee's internal appeal against dismissal is successful, the effect will be to reinstate the employee with retrospective effect. The earlier dismissal will 'vanish' without… Read more

UK: Care needed over dismissal timing when employee approaching two years’ service

31 July, 2018

The EAT has confirmed for the first time that an employee dismissed for gross misconduct in the week prior to accruing two years' service will not gain unfair dismissal protection provided that the tribunal agrees that they have indeed committed… Read more

UK: dismissal of trade union representative for misuse of confidential information automatically unfair

10 July, 2018

The Court of Appeal has ruled that the protection against unfair dismissal for taking part in trade union activities should be interpreted broadly and will not necessarily fall away where the activity involves misconduct. In Morris v Metrolink a trade… Read more

UK: employers should offer internal appeal against dismissal

10 July, 2018

The case of Afzal v East London Pizza Ltd t/a Dominos Pizza highlights the importance of offering a right of appeal against dismissal. In that case the employer was justified in urgently dismissing an employee for failure to provide evidence… Read more

UK: Relying on a series of acts – courts confirm approach to ‘final straw’ constructive dismissal claims and summary dismissal for acts which are not individually gross misconduct

9 July, 2018

Employers should note that, even where an employee seems to have 'moved on' from complaints that a series of acts by the employer cumulatively amounted to a breach of trust and confidence, a further act could revive the employee's right… Read more

Malaysia: Reinstatement Must be Sought by Employees in Unfair Dismissal Claims

26 June, 2018

A recent decision of the Industrial Court of Malaysia has confirmed the position that in a claim for unfair dismissal, the primary remedy is reinstatement. If an employee does not seek reinstatement, the court has no further jurisdiction over the… Read more

UK: Supreme Court implies term that notice only starts to run once employee has received and had an opportunity to read it

30 April, 2018

The Supreme Court has ruled that, in the absence of an express contractual provision to the contrary, notice of dismissal by post starts to run when the letter comes to the attention of the employee and they have either read… Read more

UK: employers should update template termination agreements in light of April tax changes and developments on NDAs

30 April, 2018

The tax treatment of payments for termination of employment has changed for terminations taking place on or after 6 April (see our earlier blog post here). The effect of the changes is to fully tax as earnings such part of… Read more

APAC: Dismissal for Poor Performance

26 April, 2018

This month we consider some common questions when considering the dismissal of poor performing employees. First off we look at the position in key jurisdictions in North Asia. ... Read more

UK: scope of duty of care when writing reference with opinion based on earlier investigation

9 April, 2018

Employers will welcome a High Court ruling in Hincks v Sense Network that the duty of care to an ex-employee, when giving a reference detailing opinions on performance reached following an investigation, does not normally require the referee to examine… Read more

UK: April 2018 changes to statutory benefits, tribunal compensation, minimum wage

1 April, 2018

From 6 April 2018, the cap on the unfair dismissal compensatory award increases from £80,541 to £83,682 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) increases from £489 to £508. This gives… Read more

Singapore: Amendments to the Singapore Employment Act

26 March, 2018

Following a public consultation on the review of the Singapore Employment Act (the "EA"), the Ministry of Manpower ("MOM") announced on 5 March 2018 that amendments to the EA will be implemented effective 1 April 2019. ... Read more

UK: Unfair dismissal rulings on reasonable responses test, bumping, and egregious breaches

21 March, 2018

An employee's refusal to accept that they have breached their duties is relevant to whether dismissal is within the range of reasonable responses for unfair dismissal purposes. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court ruled that it… Read more

China: How to Approach Employee Dismissals

27 February, 2018

Under PRC law, an employment contract can be terminated in three main ways, namely resignation by the employee, unilateral termination by the employer, or mutual separation. While resignation by the employee is generally straightforward, while other paths to termination must… Read more

Thailand: Preparing Valid Warning Letters

27 February, 2018

Thai labour law provides that in the event that an employee violates an employer's work rules, regulations or orders in circumstances where the employer has previously issued a warning letter to the employee in respect of the same violation, the… Read more

UK: Termination payments – changes to tax treatment from 6 April 2018

7 February, 2018

Employers currently contemplating or negotiating termination agreements should be aware of changes to the tax regime which will apply for the 2018-19 tax year onwards. The expectation was that these will apply to payments received from 6 April 2018, although… Read more

Australia: Uber driver not an employee – Fair Work Commission finds

21 January, 2018

The ceaseless trend towards casualisation and new rules of engagement in the gig economy is a modern fact of life. From bicycle couriers to ride sharers and food deliverers, relationships around work continue to fascinate. In the political realm, parliaments… Read more

UK: fairness of whistleblowing dismissal depended on knowledge of decision-maker, notwithstanding manipulation by line manager

12 December, 2017

The Court of Appeal has overturned the EAT ruling in Royal Mail v Jhuti, although a further appeal has been filed. The EAT had ruled that the reason for a dismissal can be the employee's whistleblowing, even where the decision-maker… Read more

UK: dismissal for failure to produce right to work documents could be unfair

12 December, 2017

The EAT decision in Baker v Abellio London UK serves as a reminder that it is not a statutory requirement for an employer to obtain right to work documents from its employees (the production of such documents only provides a… Read more

UK: duty not to mislead employee as to reason for dismissal

12 December, 2017

In Rawlinson v Brightside Group, the EAT held that the duty of trust and confidence includes an obligation on an employer not to deliberately mislead an employee as to the real reason for dismissal. In that case, the employer decided… Read more

UK: over-thorough investigation did not render dismissal unfair

12 December, 2017

In NHS 24 v Pillar, the EAT has ruled that an over-thorough investigation will not of itself render a dismissal unfair. It is for the decision-maker to decide what is relevant to their decision, and it is their state of… Read more

Germany: Employers can dismiss employees with shares in competitors

8 December, 2017

Under German law, an employee having a major influence on a competing company can justify a termination for good cause with immediate effect of an employee. In a recent judgement in April 2017, the Higher Regional Labour Court of Schleswig… Read more

Hong Kong: When can an employer dismiss summarily?

30 November, 2017

Employers have a range of options at their disposal for dealing with disciplinary matters, from informal verbal warnings through to summary dismissal (i.e. dismissal without notice or payment in lieu). Summary dismissal is not something which should be taken lightly,… Read more

UK: Employer’s duty of trust and confidence – caution needed before suspending to investigate alleged misconduct

3 October, 2017

A recent High Court ruling serves as a reminder to employers not automatically to suspend an employee accused of misconduct while an investigation takes place. Employers should first seek the employee's response to the allegations and consider whether suspension is… Read more

China: Termination of employment for violation of professional ethics

28 September, 2017

A recent Interpretation issued jointly by Beijing Higher People's Court and the Beijing Labor Dispute Arbitration Commission on 24 April 2017 suggests that, in Beijing, it may be possible to terminate an employee for a violation of professional ethics. However,… Read more

View more posts

Key contacts