Can an employee, who has been in breach of their contract in the past, successfully bring a claim for breach of contract by their employer following their dismissal?
Can an employee, who has been in breach of their contract in the past, successfully bring a claim for breach of contract by their employer following their dismissal? In the recent case of Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi UKEAT/0106/19, the EAT said that an employee cannot enforce the terms of their contract whilst they are in breach of their contract, however, if the breach has been rectified, the contract may be enforceable after this point.
In this case, the claimant, Ms Robinson, was engaged by the respondent under a contract which stated that she would be paid a management fee for her services, and that “[She] will be responsible for [her] own tax on that payment.” The claimant proceeded to be engaged by the respondent from 2007 to 2014 and did not pay tax on the management fee received.
In 2014, the respondent began to pay the claimant the management fee net of income tax and national insurance contributions, due to potential tax liabilities arising in respect of the claimant as a result of a dispute regarding her employment status.
The claimant was then dismissed in May 2017, primarily due to her responsibilities being diminished and disparaging comments made by the claimant about the respondent’s wife. The claimant brought a claim of whistleblowing (in respect of disclosures made to the respondent about not paying the national insurance contributions and income tax on her salary, and her belief that she was an employee), together with claims of unfair dismissal and wrongful dismissal.
At first instance, the Tribunal said broadly that the claimant could not enforce her contract because she had been knowingly acting in breach of her contract by failing to pay her income tax and national insurance payments, despite an express term in her contract requiring her to do so, therefore dismissing claims that would have otherwise been upheld.
However, upon appeal to the EAT, the Honourable Mr Justice Lewis overturned this decision, stating that, as the claimant had been acting in compliance with her contract since 2014, with the respondent deducting the required income tax and national insurance contributions at source, the period she spent being in breach of her contract did not prevent her from enforcing her contractual and statutory rights when dismissed three years later, whilst acting by her employment contract.
This raises interesting points on the enforceability of an employment contract in light of the employee’s actions when they are acting in breach of the terms of their contract of employment, which they then seek to rely on later to bring a claim. This is certainly something to bear in mind if you receive a breach of contract claim in the future. This decision also highlights the importance of being clear on an employee’s status from the point of engagement, to ensure that adverse liabilities do not arise either during or after the engagement.
Official statistics show that 15,336 claims which included a complaint of age discrimination were received at the Employment Tribunals between March 2020 and March 2021.
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
The World Cup kicks off in Qatar on Sunday 20 November 2022, with the final taking place on Sunday 18 December 2022. Undoubtedly, this is a huge sporting event, and many employees will be keen to show their support for their favourite teams. However, due to the time difference, start times for the matches are between 10 a.m. and 7 p.m. UK time, which could have an impact on employers if employees who wish to watch the matches are scheduled to work.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
The war on plastic is being taken to a new level, and businesses that don’t consider sourcing recycled packaging materials could face costly implications.
Where an employee appeals against their dismissal under a contractual appeal procedure and their appeal is successful, reinstatement to their previous role is automatic and does not require approval or agreement from the employee.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
A few weeks ago we brought you news that following the Government’s mini-budget it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 would be scrapped from April 2023.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
In July 2022, the Supreme Court handed down its long-awaited Judgement in the case of Harpur Trust v Brazel relating to the correct calculation of statutory holiday pay for part year workers. This decision has implications for all part year workers on contracts which subsist all year round, whether their hours are normal or irregular.
The Government has announced a change to the categorisation of “small” businesses to reduce the amount of regulatory compliance (or “red tape”) required. Currently, SMEs (those with fewer than 250 employees) are exempt from certain regulations – such as the obligation to comply with gender pay reporting. With effect from 3 October, these exemptions will be widened to apply to businesses with fewer than 500 employees.
In University of Dundee v Chakraborty, the Employment Appeal Tribunal (EAT) considered whether a first draft of a grievance report could retrospectively be deemed to be privileged.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
The Government has published the Retained EU Revocation and Reform Bill which, if passed, provides for the revocation of all “EU-derived subordinate legislation” (i.e. UK statutory instruments which were introduced to implement EU law) and retained direct EU legislation on 31 December 2023, unless legislation is specifically introduced to save them.
On 20 July 2022, the Supreme Court issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal. For those of you familiar with this case, you will know that it concerns the statutory leave requirements for part-time and part-year workers. For schools and academies whose workforce consists of a variety of types of part-time and part-year workers, this case is one that must be understood before any changes are applied. Come and join Emma Hughes, Head of HR Services as she puts questions to Ian Deakin, Employment Partner, and Sarah Linden, Senior Associate.
The Employment Appeal Tribunal’s recent decision in the case of Mr Michael Cowie & Others v Scottish Fire and Rescue Service provides a useful insight into favourable - or unfavourable - treatment in the context of discrimination claims.
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
In Wierowska v HC-One Oval Limited, the Employment Tribunal had to determine whether the Claimant’s beliefs in relation to Covid-19 vaccines amounted to religious beliefs for the purposes of the Equality Act 2010.
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
As of 21 July, two separate pieces of legislation came into force which seeks to mitigate against strike action. It should come as no surprise that this is a direct response to the rail strikes, which have dominated the news in the last couple of months.
The Government has referred to the greater “clarity” provided by the Supreme Court’s decision in Uber BV and others v Aslam and others, considering it appropriate to allow the impact of this decision to take effect, before considering further intervention.
