February 2021 - MLP Law

Are your “UK made” products – actually made in the UK, or are you potentially misleading your customers?

To label your products as being made in the UK, you will need to demonstrate that there is either a ‘substantial transformation’ and/or that at least 50% of the manufacturing of / value added to such products is completed in the UK.

Please read through our guide below and let us know if you would like us to advise on the origin / labelling requirements for any products you sell. (NB: Our guidance is based on the law as it applies in the UK. The destination countries of any products you export to are likely to have their own product labelling laws.)

  1. Origin of Goods

There is extensive guidance on both Preferential rules of origin and Non-Preferential rules of origin. In summary however, Preferential origin is used to provide duty benefits through free trade agreements. Non-Preferential origin will apply when countries wish to identify the origin of goods for other reasons, such as for statistical reasons or trade control purposes.

(a) Preferential Origin

To qualify for “Preferential Origin”, at least 50% of a particular product’s value must be added in the country to which it is claimed the product originated from. Therefore, if less than 50% of the value of the products you supply has been added in the UK, they would not qualify for preferential origin. The scope for misinterpretation of these rules is clear and can cause difficulty and it is always better to discuss individual or borderline cases.

(b) Non-Preferential Origin

Non-Preferential rules of origin are decided by each country to which they are being imported to, and are generally based on two criteria:

(i) Wholly obtained: these are products which are obtained entirely in the territory of one country without the addition of any non-originating materials.

(ii) Last substantial transformation: in a case where more than one country was involved in the production of the products, the country where the last ‘substantial transformation’ took place determines the origin of the products. Therefore, if your products are manufactured in the UK, whether they qualify for Non-Preferential Origin or not would depend on the level of manufacturing which took place in the UK before being finalised.

2. Sale of Goods Act 1979

If you unwittingly mislead your customers as to the origin of your products, you risk being in breach of the Sale of Goods Act 1979 (SGA) to the extent that the sale of your products is governed by this act (i.e. if you are selling your products in the UK). You may also be at risk of equivalent laws in your products’ destination country.

Section 13 of the SGA states that if there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description. As such, if a customer makes an order from you on the basis that their product of choice originates in the UK, it would be misleading to provide them with a product which originates elsewhere, as it would not correspond with its description as advertised.

In addition, some customers may be more comfortable with purchasing or leasing products which are UK made due to a perceived standard of quality and regulation. For example, the British Standards Institution (BSI) publishes standards, guidelines and specifications to help companies meet certain technical standards for their products.

How we can help

To determine whether or not your products can/should be labelled as being “made in the UK”, a full analysis of the manufacturing and production processes which take place in the UK will need to be undertaken.

If you think you require advice on this and if you would like us to advise on the origin / labelling requirements for any products you sell, contact our Commercial and IP team on 0161 926 9969 or commercial@mlplaw.co.uk  to receive expert legal advice for your business.

Divorce or Legally Separate?

Ending  a marriage is a huge decision to make and is often filled with fears and worries about the future. Some couples may not be ready to legally end their marriage and may want time to reflect but still wish to deal with the finances connected to the relationship. If this is the case Legal Separation is an option.

What is a Separation Agreement?

It is an agreement between a couple dealing with how the assets should be divided. Couples often stipulate in the agreement that they will issue divorce proceedings after they have been separated for a period of 2 years.

Is a Separation Agreement Legally binding?

No but if the agreement is drawn up properly with both parties providing full financial disclosure the court could be persuaded to uphold the agreement.

What are the advantages?

The agreement could lay the foundation for a Consent Order when divorce proceedings are issued.

What are the disadvantages?

A Separation Agreement is not automatically legally enforceable if breached unlike a Consent Order.

We are here to help…

We are to help you navigate a relationship breakdown and provide you with the advice and support  you need.

Please contact Rachael Wood, head of our family department  on 0161 928 1581 or rachaelw@mlplaw.co.uk

Short term business visitors in the post-Brexit era

Following the end of the Brexit transition period, the rules on business visitors between the UK and the EU have changed. We have therefore set out below some details on the new system for business travel in the post-Brexit era:

UK travellers to the EU

In most cases, business travellers will be able to travel to any country in the EU as well as Switzerland, Norway, Iceland or Liechtenstein for up to 90 days in a 180-day period without needing to obtain a visa or work permit, provided the purpose of the visit is limited to things such as business meetings or conferences.

For most EU countries, the 90-day limit applies as a total across multiple countries, meaning the time spent in different EU countries will be added together and will count towards the 90-day limit.

The exceptions to this are Bulgaria, Croatia, Cyprus and Romania, each of which has its own separate 90-day limit. The time spent in these countries therefore does not count towards the 90-day EU limit, and vice versa.

A visa or work permit will be required for any visit which takes the individual over the limit of 90 days in a 180-day period, or if the business traveller will be doing any of the following:

  • transferring from the UK branch of a company to a branch in a different country (‘intra-corporate transfer’), even for a short period of time;
  • carrying out contracts to provide a service to a client in another country in which the employer has no presence; or
  • providing services in another country as a self-employed person.

There are additional considerations where the individual is earning money in the EU, in which case the individual will need to inform HMRC and also check whether they will be required to pay social security contributions in the country they are working in. Where the individual is taking goods into the EU, the correct importation documentation will also be required.

Business travellers from the UK to the EU will also need to be aware of a number of requirements which apply to all travellers, including:

  • ensuring their passport has at least 6 months left on it and is less than 10 years old (even if it has 6 months or more left);
  • having in place adequate healthcare insurance or a Global Health Insurance Card;
  • ensuring they can show a return or onward ticket and that they have sufficient funds for their stay;
  • complying with rules on taking food, drink and plants into EU countries;
  • complying with rules on driving and/or taking their own vehicles; and
  • being aware that the guarantee of free mobile phone roaming no longer applies.

EU visitors to the UK

In most cases, business visitors from the EU to the UK will not need a visa or work permit if their visit is limited to a period of up to 6 months and is limited to certain business or academic activities, for example going to a conference or a meeting. A business visitor travelling without a visa cannot:

  • do paid or unpaid work for a UK company or as a self-employed person;
  • do a work placement or internship; or
  • sell directly to the public or provide goods and services.

Business visitors who have been invited as experts in their profession can only travel visa free for up to 1 month (rather than the general 6-month period referred to above) and the activities they may carry out are limited to:

  • giving guest lectures at a higher education institution;
  • providing advocacy in legal proceedings; or
  • taking part in arts, entertainment or sporting activities.

Business visitors from the EU to the UK must provide a valid passport or travel document which is valid for the whole of their stay in the UK. They may also be required to prove that they:

  • are eligible for the activities they want to do;
  • have arranged accommodation for their stay;
  • intend to leave at the end of their visit; and/or
  • are able to support themselves and their dependents during their trip

A visa will be required for anyone form the EU who wants to carry out paid work in the UK.

There are also important and complex tax considerations for short term business visitors to the UK, and further information can be found on the Government website.

As always, if the MLP Law employment team can assist with any employment law queries you may have, please do not hesitate to contact us on emplyment@mlplaw.co.uk or 0161 926 9969. Please be also be sure to follow us on Twitter @HRHeroUK.

Forged Wills and Warring Siblings

Unfortunately, when a family member or friend has died, occasionally an unscrupulous individual will try and put forward a forged or fraudulent Will  in order to try and benefit from the deceased’s estate.

A recent case involving fraud/forgery is Face v Cunningham. This concerned the estate of Donald Face, who died leaving three children. Following his death, his daughter Rebecca produced a copy Will dated from 2017 (the original was not located), and sought a Court order pronouncing that the copy Will was valid. The terms of the copy Will left everything to Rebecca and excluded her other two siblings, Rowena and Paul. The estate was worth £750,000.

Her sibling Rowena claimed that the will was a fraud, had not been produced by the deceased and was in fact a forgery produced sometime after his death. She alleged that there was in fact no valid Will, so that the Intestacy rules should apply, which would mean the deceased’s three children would each receive a third share of the estate. Their brother, Richard also sought to challenge the validity of the 2017 Will.

Ordinarily in cases where a Will is to be proven, the burden of proof rests on the person seeking to prove the will – in this case Rebecca. There are 2 presumptions in favour of that person – firstly, that where a Will is regular on the face of it and apparently executed correctly, then the presumption is that is it valid.

Secondly, there is a presumption that the person making the Will had the required mental capacity to make their Will and understood the content and effect of the Will.

Additionally, the usual burden of proving that a Will is fraudulent lies on the person alleging it, in this case Rowena and Paul. That person must prove that the will was made as a result of the fraud of another.

Contrary to the general position however, the Judge in this case held that when alleging forgery of a Will, the burden of proof is to be reversed and the onus of proving the Will’s validity lies with the applicant whom is seeking to confirm the Will, in this case, Rebecca.

The Judge found that in this case there were 4 suspicious factors which led him to state that the Will was not valid. These were: the existence of any Will at all, the terms of the 2017 Will, the circumstances surrounding the alleged execution of the 2017 Will and the circumstances surrounding the discovery of the 2017 Will.

Having found that the copy Will was a fraudulent document, Rebecca’s case was lost, and the matter has now been referred to the Crown Prosecution service to consider whether criminal charges should be brought.

A further unusual factor in this case was that none of the parties had legal representation, a fact that the Judge in the case bemoaned as unnecessarily dragging out the proceedings, which could have much more quickly and efficiently been dealt with had legal professionals been instructed by the parties.

If you are concerned that a will may have been fraudulently made or forged, then please don’t hesitate to contact our team of contentious probate specialists who can provide swift and effective advice to help resolve matters and prevent those fraudulently seeking to benefit from your loved one’s estate.

Contact Details for Wills, Trusts and Probate Team: 0161 9269969 or WTP@mlplaw.co.uk

Uber drivers are workers, rules UK Supreme Court

Uber drivers are “workers” under UK law, so says the UK Supreme Court in its decision in the case of Uber v Aslam which has been handed down today. The Supreme Court’s decision upholds the conclusions reached by earlier courts, which Uber had appealed.

In its decision, the Supreme Court ruled that:

  • employment tribunals should not be bound by what the documentation says and should instead examine the day to day reality of the working relationship. On this analysis, the Uber drivers are “workers”, rather than self-employed subcontractors as Uber had argued;
  • the drivers are therefore “workers” from the moment they switch on their apps and make themselves available for work until the moment they disconnect from the app at the end of their shift.

The decision is a significant one in the context of the UK gig economy.

As workers, the Uber drivers are entitled to the national minimum wage (and can bring claims for backpay for unpaid minimum wage). Their entitlement to minimum wage is based upon their entire working day, not just when they have a passenger.

This could therefore be a costly decision for Uber, as the drivers may now be able to claim up to two years of backpay in the employment tribunal (or up to 6 years of backpay in the county court).

The drivers are also entitled to statutory minimum levels of annual leave (5.6 weeks per year for full time workers). The drivers are not, however, entitled to certain employment rights which are enjoyed by full employees, such as protection from unfair dismissal and a right to a statutory redundancy payment.

This decision is a timely reminder that the issue of employment status is not always straightforward. If this decision affects you or your business and you would like to discuss with one of our employment law experts, please get in touch at employment@mlplaw.co.uk or on 0161 926 9969. Please also keep an eye on our Twitter feed @HRHeroUK for more employment law updates.

Coronavirus and the GDPR

Back in 2018, the shakeup of the UK data protection regime brought in by the GDPR was seemingly all anyone in business was talking about. Now in 2021, it’s fair to say that the COVID-19 pandemic has replaced almost any other topic of conversation. However, the two topics are not entirely distinct, with the pandemic throwing up a number of challenging data protection considerations for employers, specifically in relation to the processing of health information relating to employees.

We have therefore decided to explore some of these issues in two separate blogs which analyse the two key situations which can result in employers needing to process their employees’ health information during the COVID-19 pandemic.

This blog covers scenarios where data processing is required in respect of employees who are absent from work due to coronavirus symptoms or because they are self-isolating in accordance with government guidance. Please look out for our other blog on Coronavirus and the GDPR, which covers data protection issues which arise when employers carry out workplace coronavirus testing and symptom monitoring programmes.

The processing of health information involves “special category data” under the GDPR, which means an employer must ensure that they have both a lawful condition for processing personal data and a “specific condition” for procession special category data, and this blog explores how an employer can demonstrate these required conditions.

Employee absences due to coronavirus and workplace outbreaks

If an employee is unwell due to coronavirus, the usual processing of health information will be required in order to record the absence and pay sick pay. However, additional processing may be required depending on the employee’s specific situation.

For example, an employee who receives a positive coronavirus test will be “encouraged” to alert the people that they have had close contact with in the 48 hours before the onset of symptoms. If this includes their work colleagues, the employee is also encouraged under the relevant government guidance to consider informing their employer so that their colleagues can be alerted.

If an employer is asked by an employee to alert their co-workers, ideally this should be done on an anonymous basis, although there will inevitably be situations where it will be easy to identify the employee who has tested positive.

Generally, however, it will be the responsibility of NHS Test and Trace rather than employers to alert close contacts of an individual who has tested positive for coronavirus, even if the close contacts are work colleagues. The exception to this is where there is more than one case of coronavirus associated with a particular workplace (i.e. where there is a “workplace outbreak”).

Where there is a workplace outbreak, the employer must contact its local PHE health protection team to report the suspected outbreak. If the local PHE health protection team declares an outbreak, the employer will be asked to record details of symptomatic staff and assist with identifying contacts.

The employer will be assisted with this by PHE, who will provide information about the outbreak management process and how to implement control measures, communicate with staff and reinforce prevention messages.

As for the lawful and specific conditions for processing health information and other personal data relating to employees in these circumstances, it is likely to be regarded as falling within the employer’s duties under health and safety legislation in which case the employer is likely to be able to rely on their need to “comply with a legal obligation” and “compliance with their obligations and rights under employment law” as lawful conditions.

Employees absent due to self-isolation

Throughout the pandemic, most employers are likely to have employees who are required to self-isolate, for example because they are a close contact of someone who has tested positive or they have travelled to England from abroad. An employee may also be self-isolating where they have symptoms of coronavirus, or have tested positive, but are nevertheless well enough to work from home (and it is possible for them to do so).

If an employee is self-isolating (for whatever reason) and cannot work from home, they will be eligible for SSP and the employer will need to process this in the usual way.

If it is necessary to process health information because an employee is self-isolating, the lawful and specific conditions for that processing may vary depending on the reason for self-isolation. For example:

  • if the employee is self-isolating because they have travelled to England from abroad, this is a legal requirement and arguably the conditions of “compliance with a legal obligation” and “compliance with obligations and rights under employment law” should apply;
  • if the employee is self-isolating because they have symptoms of coronavirus, have tested positive, or are a close contact of someone who has tested positive, these obligations are set out in non-statutory guidance only and so it is not clear that the conditions of “compliance with a legal obligation” or “compliance with obligations and rights under employment law” would apply. However, an employer might be able to assert that ensuring that employees self-isolate in these circumstances falls within the employer’s duty under health and safety legislation, and on this basis those conditions would arguably apply.
Employees unwilling or unable to return to work

Employees who are clinically vulnerable or clinically extremely vulnerable (or those who live with someone who is), as well as those who are otherwise anxious about contracting coronavirus may be unable and/or reluctant to return to work.

Dealing with these situations may require meetings and correspondence between the employee, their manager and HR. They may also involve requests for medical reports. Depending on the circumstances, employers processing health information for these purposes may wish to rely on the following:

  • as a lawful condition for processing: “compliance with a legal obligation” or “the employer’s legitimate business interests”, and
  • as a specific condition for processing: “compliance with obligations and rights under employment law or “establishment, exercise or defence of legal claims”.

If you have any concerns about your rights and obligations when it comes to processing employee health information during the pandemic, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our other blog in this series.

Overview of a Corporate Transaction (Sale or Purchase of Shares)

  1. Initial Planning

1.1 Appoint professional teams

Need to appoint your accountancy/tax/legal/corporate finance advisors as appropriate

1.2 Determine Structure

Seek advice on the structure of the transaction, what you’re looking to achieve and determine what works best for you (as Seller or Buyer)

1.3 Tax

Seek tax advice on whether any tax clearances should be sought

1.4 Funding

Determine how the transaction will be funded (if a Buyer) and get lenders on board as soon as practicable

1.5 Consideration

Consider how the purchase price will be paid, ie. Is some deferred? Is there a retention? Is there to be completion accounts or a locked box mechanism? Will some consideration shares in the Buyer be issued?  Each of these may impact the price paid/value of shares and have tax consequences

2. Initial Documents

2.1 Heads of Terms

Once initial discussions have taken place between Buyer and Seller, the main terms should be detailed in Heads of Terms.  These should include the principal terms and an exclusivity provision

2.2 Confidentiality Agreement

Before any information on the target company is provided to the Buyer, they should sign a Confidentiality or Non-Disclosure Agreement.  These provisions should be included in the Heads of Terms if a separate agreement is not entered into

3. Due Diligence

The Buyer will conduct legal, financial and accounting due diligence into the Seller and the target company in order to obtain information, inform its negotiations and plan for the integration of the target company into its existing group.

3.1 Due Diligence Enquiries

The Buyer’s and the Seller’s financial advisors will deal with the financial due diligence aspects.  The legal due diligence questionnaire will be sent by the Buyer’s solicitor to the Seller’s solicitor.  This will usually be an extensive list of questions on all aspects of the target company and the seller’s ownership of the shares.

3.2 Replies to Enquiries

The Seller will need to work through this questionnaire and provide responses to each question and supporting documents wherever possible.  Often these will be uploaded to a virtual data room and the Buyer’s team will be granted access to this information.

The Buyer’s team may raise further due diligence enquiries for the Seller to respond to.

3.3 Due Diligence Report

The Buyer’s team will review the responses and information provided and report on the findings.

4. Share Purchase Agreement (SPA)

4.1  Drafting the SPA

The Buyer’s solicitor usually prepares the first draft SPA.  This is usually a lengthy document.  This will be sent to the Seller’s solicitor, who will review, discuss with the Seller and prepare a mark-up of the SPA with any concerns/issues they have and amendments they wish to make.  Drafts will pass to and fro up until all issues have been resolved and the parties are ready for exchange/completion. 

4.2 Tax Covenant

The tax indemnity or covenant for historic tax liabilities is usually included within the SPA.

4.3 Warranties

The Seller will have to give fairly extensive warranties about all aspects of the company and their ownership of the shares – these will cover the same sort of areas as the due diligence.  Warranties will be one of the most negotiated parts of the SPA.  Warranties are statements of fact about the company, given by the Seller, as at completion.  If any of the statement is factually incorrect, the Seller will need to make a disclosure against such warranty stating why it is incorrect.

4.4 Limitations on the liability of the Seller

The SPA should also include provisions for limiting the liability of the Seller under the SPA, in particular, under the warranties.  The extent of these will be subject to much negotiation.

5. Disclosure Letter

The disclosure letter serves a separate purpose to due diligence, even though both involve providing information concerning the target to the Buyer. It allows the Seller to qualify the warranties set out in the SPA and thereby limit the potential liability under them. If, following a Buyer’s claim for breach of warranty, a matter can be shown to have been disclosed to the Buyer (meeting the standard of disclosure described in the SPA), the Buyer’s warranty claim will not succeed.

The Disclosure Letter usually has a specific format, the first part being the general disclosures and the second part being the specific disclosures.  The extent of the general disclosures will be negotiated between the respective legal advisors.  The Seller will need to review the warranties (with both legal, financial and tax advisors) and provide any necessary disclosures against the warranties.  The Seller’s solicitor will then put these into the Disclosure Letter.

6. Ancillary Documents

There will always be ancillary documents in a share sale or purchase.  These can be numerous but will generally include:

  • Board Minutes
  • Shareholder Resolutions
  • Stock Transfer Forms
  • Resignation letters
  • Settlement Agreements
  • Powers of Attorney
  • PSC notices
  • Various Companies House forms

Depending upon the structure of the transaction, there may also be:

  • Loan Note Instruments
  • Retention/Escrow Agreements
  • Shareholders Agreements
  • New Articles of Association
  • Contribution Agreement

7. Completion

Once all of the above documents have been agreed, they will be signed by the parties and once the Buyer’s solicitor is in receipt of funds and ready to send these to the Seller’s solicitor, the transaction can be completed.

If you have any questions or queries in relation to this blog, please do get in touch – by telephone on 0161 926 9969 or by email to rachelo@mlplaw.co.uk.

Coronavirus and the GDPR

Back in 2018, the shakeup of the UK data protection regime brought in by the GDPR was seemingly all anyone in business was talking about. Now in 2021, it’s fair to say that the COVID-19 pandemic has replaced almost any other topic of conversation. However, the two topics are not entirely distinct, with the pandemic throwing up a number of challenging data protection considerations for employers, specifically in relation to the processing of health information relating to employees.

We have therefore decided to explore some of these issues in two separate blogs which analyse the two key situations which can result in employers needing to process their employees’ health information during the COVID-19 pandemic.

This blog covers the data protection issues which may arise where employers decide to carry out workplace coronavirus testing and symptom monitoring. Please look out for our other blog on Coronavirus and the GDPR, which covers data processing in relation to employee absences.

The processing of health information involves “special category data” under the GDPR, which means an employer must ensure that they have both a lawful condition for processing personal data and a “specific condition” for procession special category data, and this blog explores how an employer can demonstrate these required conditions.

Employer testing programmes

During the COVID-19 pandemic, many employers may decide to monitor and test for coronavirus infections amongst its workforce. This may include an employer carrying out temperature checks to find out whether employees have a high temperature (which is one of the symptoms of coronavirus), an employer carrying out its own coronavirus testing or an employer finding out whether employees have tested positive for coronavirus through the NHS Test and Trace system.

Outside of the scope of this blog is the issue of whether an employer has the contractual right to require an employee to undergo testing or to see the results of tests. However, by way of brief summary, it is unlikely that existing employment contracts will give employers these express contractual rights, although clauses which allow employers to request a medical examination or report where ‘reasonably required’ may be wide enough to cover coronavirus testing. Even if such a contractual right exists, employers cannot force employees to take a test (or provide their results), although employees would potentially be in breach of contract if they refused to do so without good reason. The employer may also have the option of taking disciplinary action in such circumstances.

Regarding the data protection issues which arise if an employer decides to implement a testing programme, testing guidance published by the Information Commissioners Office (ICO) states that  the employer should first conduct a “data protection impact assessment” (DPIA) before putting any measures in place.

A DPIA is a tool which can help employers identify the most effective way to comply with their data protection obligations and meet individuals’ expectations of privacy. An effective DPIA will allow employers to identify risks and fix problems at an early stage, reducing the associated costs and damage to reputation which might otherwise occur.

An employer should also be clear on the reason why it is undertaking testing of employees and the objectives of such a programme. In most cases, the objectives will likely be to keep employees safe in the workplace and to protect and enable business continuity.

In terms of lawful conditions for data processing, the objective of keeping employees safe coincides with the employer’s duty under health and safety legislation, meaning an employer’s “compliance with a legal obligation” is likely to apply, as is an employer’s “legitimate business interest” in ensuring business continuity. 

Regarding a specific condition for processing special category data, an employer’s “obligations and rights under employment law” and taking steps to protect “public health” may apply. The public health condition is relevant on the basis that employers running their own testing programmes can argue that they are helping to stop the spread of coronavirus by running additional testing and reporting results to relevant public health contact tracing authorities

Each of the above processing conditions relies on the processing being ‘necessary’. Although this doesn’t necessarily mean that the processing must be absolutely essential, it does mean that it must be more than just useful (and more than just standard practice). It also means that the processing must be a targeted and proportionate way of achieving a specific purpose and the processing will not be considered necessary if the employer could reasonably achieve the stated purpose by some other less intrusive means or by processing less data.

In respect of the coronavirus pandemic, the question of whether symptom checking or testing, and the processing of related employee health information, is “necessary” involves considering the specific circumstances of the organisation and workplace, including the type of work the employer does, the type of premises it has and the amount of contact employees have with each other (amongst other things).

The employer should also consider whether it really needs the information, whether the proposed steps will actually help it provide a safe environment and whether it could achieve the same result without collecting personal information. The employer should therefore be clear about what it is trying to achieve and whether personal information is “necessary” for that purpose. If the employer can show that its approach is reasonable, fair and proportionate to the circumstances then it is ‘very unlikely’ that data protection would be a barrier

Temperature checks

A popular type of testing carried out by many employers is temperature testing. However, government guidance suggests that there is actually little scientific evidence to support temperature screening as a reliable method for detecting coronavirus.

The ICO therefore recognises that this type of testing may require stronger justification, particularly given that it should be considered a potentially intrusive method of collecting health information.

Transparency and record keeping

Employers are ‘strongly advised’ to consult with employees before implementing any policy and to communicate clear information to staff on a range of relevant issues, including why the employer is setting up a testing programme as well as or instead of accessing the existing national programme, whether the programme is voluntary or mandatory and the consequences for employees who decline to take part in the testing programme.

Any information collected as part of the testing programme must also only be retained where this is necessary and relevant for its stated purpose. Any data which is retained must be stored securely and the principle of “data minimisation” will apply, which means that the data must be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed. In the context of test results, this means that the employer will probably only require information about the result of a test, rather than additional details about underlying conditions.

If you have any concerns about your rights and obligations when it comes to processing employee health information during the pandemic, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our other blog in this series.

MLP Law are proud to be supporting Henshaws and SANDs for a consecutive year!

Here at MLP Law we are pleased to announce that we will be supporting Henshaws and SANDs again in 2021.

Henshaws is a northern charity supporting people living with sight loss and a range of other disabilities to go beyond expectations. Henshaws is one of the oldest charities in the UK and in 2017 celebrated its 180th anniversary. MLP Law is extremely excited to start 2021 with a promise to fundraise as much as possible for this amazing charity. To find out more about the life changing work Henshaws is conducting, take a look at the website – https://www.henshaws.org.uk/

SANDs UK is a national charity with a vison to live in a world where fewer babies die and when a baby does die, anyone affected receives the best possible care and support for as long as it’s needed. SANDs supported 4,800+ bereaved parents and families at support meetings in 2018/19 and MLP Law looks forward to continuing to contribute to this invaluable service throughout the year. To find out more about this amazing charity, take a look at the website – https://www.sands.org.uk/

One of MLP’s key strands of company ‘DNA’ is for all our colleagues to be role models – we want to lead by example by helping both our local and wider community and we strive to make sure that charitable giving is at the forefront of our business.

In 2018/19 we strived to raise as much as possible for charity, from our charity of 2019 – Dementia UK; with money raised with ‘dress down Fridays’ and our summer party, to our Managing Director Stephen Attree raising an amazing £1505 for the iMRI Scanner Appeal at Royal Manchester Children’s Hospital Charity in the Cumbria Way Challenge. We rounded off 2019 by helping The Toy Appeal – we collected over 100 toys for local children who may have not otherwise received Christmas Presents and colleagues helped wrap them at the charity’s annual week-long meet and wrap event. Whilst 2020 proved an extremely difficult year, our colleagues were still dedicated to individual fundraising, and we committed to making a donation every time a client gave us feedback, and that certainly won’t be changing this year! We will be trying our best to raise as much money as we can as an MLP Family for our wonderful chosen charities this year, so watch this space!

Employee Grievance After Resignation

A recent case has highlighted an area where employers must exercise caution, when dealing with aggrieved employees.

In Gordon v J & D Pierce (Contracts) Limited, the Employment Appeal Tribunal (EAT) determined that the fact the Claimant had engaged in a grievance process after resigning did not undermine his argument that he had been constructively dismissed.

Facts

The Claimant’s working relationship with his manager had deteriorated, so he resigned but then participated in the employer’s grievance process.  The Claimant then brought a claim of constructive dismissal, alleging that his employer had fundamentally breached his contract of employment due to the manager’s conduct.  His employer argued that if the Claimant was prepared to engage in an internal grievance process, he had tacitly accepted or waived the alleged breach, which meant that he could not succeed with a claim of constructive dismissal. 

Law

Essentially, if an employer’s conduct amounts to a repudiation of the employment contract, the employee can choose whether to resign or waive the breach.  An employee who waives the breach of contract cannot succeed with a constructive dismissal claim.  The EAT, however, held that lodging a grievance will not, by itself, be enough for an employer to argue the employee has waived the breach and lost the right to resign and claim constructive dismissal.

The EAT stated that relying on one contractual right, such as a disciplinary appeal or a grievance, does not mean that all other contractual rights fall away, including the right to resign in response to a breach. 

Practical Steps for Employers

The Claimant was unsuccessful in his claim for other reasons but the case provides a reminder to employers that an employee’s resignation is not always the end of the story.  Ultimately, although the circumstances of every case have to be considered individually, it highlights that employers should follow their own grievance procedures carefully, even where the individual raising the grievance has resigned. 

Similarly, as participation in the grievance process by an employee who has resigned does not preclude him or her from then raising a claim of constructive dismissal, there is added impetus for employers to ensure that such a process is well documented, accurate meeting minutes are taken (which should then be agreed with the employee) and a reasonable approach to finding a resolution to the employee’s concerns can be demonstrated.  This can improve the employer’s position during any future litigation.

If you have any questions or queries in relation to this blog, please do get in touch – by telephone on 0161 926 9969 or by email to julies@mlplaw.co.uk