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Legal update

Published 25 May 2018

Timing of Notice of Termination

Where an employment contract is silent on when notice is deemed to be given, when does notice of termination take effect? Is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when it comes to the attention of the employee and s/he has read it (or had a reasonable opportunity to do so).

The answer is (iii), ie when it is actually received by the employee and s/he has read it (or had a reasonable opportunity to read it), held the Supreme Court in Newcastle Upon Tyne NHS Foundation Trust v Haywood(1), upholding the Court of Appeal's(2)decision by a majority of 3 to 2.

Daniel Barnett: follow the link below to read the full story(3)

Tribunals gridlocked by surge in claims

A Supreme Court(4)ruling which scrapped high tribunal fees has led to a surge in claims that is threatening to paralyse the system.
Applicants alleging discrimination(5), unfair dismissal(6)or pay have to wait a year for a hearing date after a rise in claims of nearly 100 per cent.
Fees of up to £1,200 per claim were ruled unlawful and unconstitutional last year, requiring the government to pay back £32 million.
Lawyers say that for a discrimination case, which may last up to three days, people are having to wait up to a year in London and from six to 12 months outside London.
Times: follow the link below to read the full story(7)

Variation of Contracts: When Silence = Acceptance

If an employee works without protest after a variation of contract is imposed, should acceptance be inferred?
Not necessarily, held the Court of Appeal in Abrahall v Nottingham City Council(8).
When Nottingham City Council sought to regularise a variety of pay systems, it implemented a single system with pay scales determined on a spinal column points basis. The Court of Appeal found the employees were contractually entitled to annual incremental pay progression.
Soon after the new system was implemented, the council brought in a two-year pay freeze. Throughout that period, there was no industrial action (save for a consultative ballot) and no affected employee raised a grievance. When Nottingham proposed an extension of the freeze, the unions activated a collective grievance procedure and then brought these claims.

Daniel Barnett: follow the link below to read the full story(9)

Injury to Feelings Payments not Taxable

Was a settlement payment for injury to feelings taxable under ITEPA 2003?
No, held the Court of Appeal in Moorthy v HMRC(10).
Mr Moorthy agreed a £200,000 settlement package with his employer. Although no specific amount was agreed at the time, before the Court of Appeal the parties agreed that £30,000 was attributable to injury to feelings for age discrimination.
Section 406 of the Income Tax (Earnings and Pensions) Act 2003 provided that no tax is payable "on account of injury... to an employee". HMRC argued that 'injury to feelings' fell outside 'injury', as the tax exemption was only intended to apply to compensation for personal injury as opposed to injury to feelings.

Daniel Barnett: follow the link below to read the full story

References

1.  uksc-2017-0074-judgment.pdf [Internet]. [cited 2018 May 24]. Available from: https://www.supremecourt.uk/cases/docs/uksc-2017-0074-judgment.pdf

2.  The Court of Appeal [Internet]. [cited 2018 May 24]. Available from: https://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/

3.  Timing of Notice of Termination [Internet]. Daniel Barnett. [cited 2018 May 24]. Available from: http://www.danielbarnett.co.uk/site/blog/employment-blog/timing-of-notice-of-termination.html

4  Court TS. The Supreme Court [Internet]. [cited 2018 May 24]. Available from: https://www.supremecourt.uk/

5.Discrimination in the workplace [Internet]. Castle Associates Ltd. 2016 [cited 2018 May 24]. Available from: https://castleassociates.org.uk/support-centre/discrimination-workplace

6. Unfair Dismissal [Internet]. Castle Associates Ltd. 2018 [cited 2018 May 24]. Available from: https://castleassociates.org.uk/support-centre/unfair-dismissal

7.  Legal Editor FG. Tribunals gridlocked by surge in claims. The Times [Internet]. 2018 Apr 23 [cited 2018 May 24]; Available from: https://www.thetimes.co.uk/article/tribunals-gridlocked-by-surge-in-claims-wx5b2gwdw

8.  THE SENIOR PRESIDENT OF TRIBUNALS<br>(Lord Justice Ryder)<br>LORD JUSTICE UNDERHILL<br>and<br>SIR PATRICK ELIAS. Abrahall & Ors v Nottingham City Council & Anor [2018] EWCA Civ 796 [Internet]. 2018 [cited 2018 May 24]. Available from: http://www.bailii.org/ew/cases/EWCA/Civ/2018/796.html

9   Variation of Contracts: When Silence = Acceptance [Internet]. Daniel Barnett. [cited 2018 May 24]. Available from: http://www.danielbarnett.co.uk/site/blog/employment-blog/variation-of-contracts-when-silence-acceptance.html

10. Moorthy v Revenue And Customs [2018] EWCA Civ 847 [Internet]. [cited 2018 May 24]. Available from: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed37027

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