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Now that the dust has begun to settle on the outcome of the referendum on the UK’s membership of the EU there are some interesting indications of a surprising new direction in the employment rights regime. While some had feared that Brexit would lead to a bonfire of UK employment rights - in particular those deriving from EU legislation Theresa May has defined her new premiership as being about making Britain “work for everyone” implicitly acknowledging this that may not have been the case under the previous Cameron administration.

If you are a takeaway aficionado you may well have recently used the services of ‘Deliveroo’. If you prefer to make use of your own kitchen, Deliveroo is a website where customers can order from a selection of their favourite restaurants to be delivered to their door by one of their trusty bicycle couriers. Whether you’re craving a YO! Sushi, or whether you’re more in the mood for a ‘Large Whopper’ from Burger King, with just a few clicks (and a £2.99 “Roo Charge”), a courier will be on his/her bike, weaving in and out of traffic to deliver your dinner.

The one thing that the media and politicians from all parties seems to be able to agree on following the vote by 52% of voters to leave the EU is that nothing is set in stone. The future status of the EEA citizens that are currently in the UK is one of the big unanswered questions which has been much discussed but with no decisions made to date. Theresa May, newly minted PM, earlier this month refused to commit to guarantees for EU nationals currently living and working in the UK until the status of British expats in other European countries has been negotiated.

The concept of ‘protected conversations’ or, as it is specifically framed in the legislation, “pre-termination negotiations” was introduced, in July 2013, by section 111A of the Employment Rights Act 1996. As a result, employers have been arguably more able to engage in confidential, frank discussions with employees concerning termination and parting on mutually agreed terms without the employee being able to refer to these in any subsequent legal proceedings - referred to in a legal context as “inadmissibility”. The legislation effectively extended the inadmissibility of such discussions thereby going beyond the existing common law “without prejudice” principle.

Up until now we have had no case law testing the scope of this form of statutory privilege. However, the recent Employment Appeal Tribunal case of Faithorn Farrell Timms LLP v Bailey has made some important finding about the scope and effect of the provision. As such, now is a good time to recap on where we are in respect of both the without prejudice principle and the protected conversation legislation.

The Trade Union Congress estimates that employees in the UK worked £32 billion worth of unpaid overtime hours in 2014. In November 2015, the Telegraph published the results of a poll which calculated that the average UK employee will give their employers 9,024 hours of unpaid overtime over their working life. Increasingly, technology is keeping employees linked to the workplace even after their normal shifts have ended.

The BBC published an article in June 2016 which claimed that 40% of people check their emails first thing in the morning when they wake up, and 40% check them as the last thing before they go to sleep. In France, the government has been so concerned by these trends that they are introducing an obligation on all employers with over 50 members of staff to draw up a charter of good conduct which indicates that emails should not be checked or answered out of work hours or at the weekend.

Workplace dress codes have been in the spotlight recently, after a receptionist claimed she was sent home from work at a well-known corporate finance company after refusing to wear high heeled shoes.

Nicola Thorp, who was employed as a temporary worker by an outsourced receptionist firm, said she arrived on her first day in flat shoes only to be told she had to wear shoes with a two to four inch heel. Thorp claimed she was then laughed at when she asserted that this was discriminatory.  However, following the headlines and public backlash, the firm decided to scrap the controversial dress code.

On 12 May 2016, the Immigration Bill received Royal Assent and became the Immigration Act 2016.

The Act gives effect to a number of Government commitments intended to curb illegal working and prevent the exploitation of migrant workers.  Its main provisions include;

By Annika Neukirch, Trainee Solicitor


Tipping and service charges are peculiarities of the service industry which have attracted controversy recently. In 2015, for example, after widespread criticism, Pizza Express followed other restaurant chains such as Giraffe and ended its practice of charging their employees an 8% ‘administrative fee’ for paying them their share of tips which customers paid by credit card rather than in cash.

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