Topics covered in this month's webinar include:

• TUPE and harmonisation of contracts
• Company vehicles and tracking devices
• Working Time and overtime payments
• Brexit and the impact on cross-border working
• A1 Certification
• Time Limits and making a late claim
• Restrictive Covenants

Scott Alexander, Head of Learning and Development at Legal Island, discusses your Northern Ireland employment law questions and topical HR issues with Seamus McGranaghan and Hannah McGrath from the employment team at O'Reilly Stewart Solicitors.

Don’t forget to visit the ‘Seamus Says – Employment Law Discussion’ section on the employment law hub, which provides answers to over 130 employment-related questions addressed throughout this webinar series.

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Transcript

Scott: Good morning, everybody. This is Scott Alexander. I'm from Legal Island. I'm here with Seamus McGranaghan and Hannah McGrath from O'Reilly Stewart Solicitors. We're going to be dealing with your questions today. If you have any that you want to send in live today that haven't reached us already, then use the little chat box and we'll try and get through as many as possible.

We did a webinar yesterday on whistleblowing investigations. Today, we're going to be dealing with a number of things today that we hope to get through, including TUPE, more on tracking vehicles, which we discussed last month. We've a number on Brexit, posting people outside of Europe and indeed the UK. Hopefully get some working time stuff done as well. If we have time, we'll get right into time limits and restrictive covenants. If we don't get through, you can always contact Seamus or Hannah or me, and we'll get back to you.

TUPE and the Harmonisation of Contracts

Do employees have to sign a harmonisation of contracts letter under TUPE without seeing the new terms and conditions?

Anyway, the first question I think we're going to pass to Seamus. And it says, "The organisation I work for was TUPEd to an English employer last April". So that's about a year ago. "It was agreed recently that terms and conditions were to be harmonised from the 1st of April this month", so just this week. "Letters have now been sent out to employees asking them to sign a letter agreeing to the new Ts and Cs without sight of the new contracts. This letter is to be returned within a week. The letter says that new contracts will follow employees signing the letters". Seamus, what do you say about this?

Seamus: I think there are automatically a few red flags there that come up. Essentially what's happening here is that a TUPE transfer has taken place. We're 52 weeks down the line or a year down the line about, and there's this discussion or this talk of harmonisation of contracts.

I'll maybe touch on that after, but I suppose just what . . . my immediate concern would be that the new employer that the employees are now working for that were transferred across, they obviously do transfer across with, you know, their existing terms and conditions protected. They should be notified in advance of the transfer if there are any intended issues that are going to arise in relation to their terms and conditions.

And that would usually be addressed through a measures letter that the new employer would be sending to the existing employer at the time. And then there would be a duty under the usual information and consultation of employees to notify the employees of any changes.

But this is a circumstance where, you know, the employer more or less is saying, "Well, we're 12 months down the line here. Let's look at trying to harmonise the terms and conditions across the board here for all employees".

Now you can totally understand why an employer might want to do that. It's very difficult to run and deal with, you know, employees that are doing the same work, that are in the same roles, but are having different terms and conditions. And it can also lead to some feelings of not being content for some employees, if they're sitting beside someone that is on better terms and conditions and things like that.

So the employer, you know, is right in some ways in looking to harmonise those terms and conditions, but it's about the way that they do it.

Just specifically on this question that's asked, what strikes me as very odd is that the employees are being made aware that there's going to be an attempt to harmonise terms and conditions, but they are not given the terms and conditions themselves. What they're given is a letter to say, "Are you agreeable to your terms and conditions being harmonised?" So, very sneaky of this employer, I think. I would not be advising anyone to sign a letter to say that they are going to agree to do this. If they haven't received the actual contract, they're not aware of what those proposed amendments are going to be.

Scott: Now, they're protected against unfair dismissal because they've got at least a year's service, post transfer, because they've been there since before April last year. So if they don't sign, it would be unlawful dismissal to get rid of them for not signing a letter. But more than that, I don't know any tribunal that will turn around and say, "You know what? It's reasonable to take action against an employee for not signing something that they haven't seen".

Seamus: Absolutely. It strikes me as very odd, this process they're taking. And certainly, from that perspective, it would raise your suspicions as to what exactly is going on, what is going to be contained in these terms and conditions.

Scott: You would want to know, as an employee, how harmonisation is going to work, because you may not even know all the terms and conditions of the employer's workforce to which you joined whenever there were TUPE done a year ago, you know? So, they could be better off or worse off.

But what the law says is that when you transfer, your own terms are limited to the ones that you have, but they're also protected. But it doesn't set a time limit on when the employer can harmonise. So this employer saying, "It's been a year. That's long enough. Let's put it together", but it really depends on why are they harmonising. And if it's related to the TUPE, it's unlawful after a year as much as it is after a week.

Seamus: Absolutely. I mean, there is a good case law. I was doing research in relation to it. There's a case of London Metropolitan University against Sacker in 2006, and it involved a merger of two universities. There was an attempt at this idea of harmonisation, which was two years down the line from whenever the merger had taken place, and the tribunal still held at that point that it was unlawful. It was saying just because it was two years, it wasn't necessarily - it didn't put the ability on the employer then to harmonise at that point.

The university at that time was trying to use the ETO principles as a way to harmonise the contracts, but the view of the tribunal that looked at the case said, "No that wasn't the reason for the harmonisation.” It was actually just an attempt by the employer to get everyone into one boat in the sense of their terms and conditions, and also then to - there were going to be winners and losers in relation to that as well.

I think that, certainly, my view would be that the longer the period, the longer the gap between the transfer and the attempt to harmonise, you could certainly see, you know, a sensibility around that for the employer to say, "Well, it has been a number of years now. At least we can attempt it, because we've put enough time between it".

Scott: It's likely that something might have changed. So maybe in 10 years' time, you know, if we don't do something, we're going to have to make redundancies. It's not to do with TUPE. It's to do with redundancies of the market, or there's been some kind of legislative change the way that we work, so we got to bring you into these. Otherwise you're going to lose in some kind of way.

I suppose there is an element of that would come in, but it's related to the ‘but for test’, but for TUPE, would the employer be changing any of these terms and conditions. If the answer is no, I wouldn't but for the TUPE, and we wouldn't be doing anything. It's unlawful, regardless of time.

Seamus: Exactly. And the classic one that I could say is I did have a case a number of years ago myself where the employees were being transferred across. My client was essentially doing the logistic work for the company, and the company also had retained a number of its own drivers, and then those drivers were transferring across to my client.

But much better terms and conditions in terms of their pension contributions, and really importantly, they had six months' full pay, where my clients didn't have that for sick leave. And after a while, my client was wanting to demand that, and it was a difficult conversation with the client to say, "You need to be very careful here". And certainly, when it comes to harmonisation, I think the idea is that they should always be open and transparent consultation.

The idea in this question is that you're going to sign up to something that you haven't had knowledge of, or that you haven't been given the opportunity to review. And I think all of the guidance is fairly clear. It has to be open and has to be transparent.

And really, the trick of the trade for employers is the presentation on it, and often, a lot of the time, the spin that's put on the changes, because you can put it forward where you say, "You are going to lose on this, but you are going gain on something else". And you hope that through negotiations and discussions, whether it's directly or through the trade union reps, or whatever the position is in the business, that you get to a point where you can harmonise. But there are some aspects that you could absolutely see an employee saying, "That's not something that I'm willing to sacrifice. I'm sticking to my guns on it".

And the thought process going down the line, even if they'd sign this letter to say, "Okay, I will agree to a variation", and then they got the terms and conditions and weren't happy, I don't think they could be held by the letter to say that they were going to agree to it. I just think it's completely unfair.

Scott: You can contract out of TUPE. There's maybe another angle that we haven't chatted about before we started the broadcast there, and that would be that if there's a variation to terms and conditions of 20 or more employees, that would fit the definition of collective consultation requirements.

Seamus: Yes, absolutely.

Scott: If there's an issue here where they're varying a good number of people who have been TUPEd, the employer leaves themselves open to a failure to consult claim.

Seamus: That's it. I mean, I suppose the aspect of that is that your time limit as well will start to run from whenever those breaches take place themselves, and if you're still able to latch on to the TUPE process at that point, you're looking at more than just a straightforward unfair dismissal case. You could bring in additionality in terms of claims there as well. So there's a lot for the employer to potentially lose on it.

There was some good guidance that was set out within – I had just got this online. It was the CIPD guide to TUPE transfers, and that's about the best guidance that I've been able to see outside of the ACAS and the LRA guidance itself. But this guide itself, it covers off everything, and it does include aspects on harmonisation and how employers could go about looking to harmonise terms and conditions.

Certainly, from my point of view, you know, I've dealt with a number of business purchases and company sale shares and things like that, where TUPE has been involved. It's really important to get issues down in writing and notify the employees in advance if there is going to be any issues that are going to arise, if there are terms and conditions that the new employer can simply not comply with because they don't have the ability, and that comes up sometimes in various different forms. It's about getting that down on paper and notifying people, and giving the employee the opportunity then to decide whether they want to actually transfer or not. The ball is in their court at that point.

Scott: Okay. We have another TUPE question coming up, but just to remind listeners, if you are really interested in TUPE, we have an event coming up on the 13th of June, and again you'll find that on the events pages on the Legal-Island website.

Does the level of a final written warning on an employee file adjust because of a TUPE transfer?

The second question is really about those protections and transfers, if you like, with the particular transfer. So, in this TUPE situation, details of an absence and live disciplinaries are communicated to the receiving company in advance of the transfer. Once the transfer takes place, does the warning level transfer?

For example, an employee has a final written warning on file for unauthorised absence due to expire in September 2019, but the TUPE transfer takes place in March 2019. If the employee has another unauthorised absence, say, in July of 2019, does it necessarily follow that the employee potentially faces dismissal, or does the level of warning adjust because of the TUPE transfer? Seamus?

Seamus: This is an interesting question, and the reality is that there is an information and consultation process under TUPE. Articles 11 and 13 are the articles that cover for that. And all of that information relating to the employee, whether it is about, you know, the number of days absent that they've had, whether it's about grievances that they've raised, if they've got previous warnings, all that information should be provided by the existing employer over to the new employer, from the transferor over to the transferee. So that information, there's an obligation to provide that. And then that becomes within the knowledge of the new employer.

And they absolutely can rely on any previous warnings that have been given to the employees. It's not that you get a brand-new slate on TUPE whenever you transfer across, and you can say, "Well, you know, I haven't been a great employee at this point. I've got a final written warning, but now I've TUPEd, I can forget about all of that. I've got another crack at the whip here". Certainly, the information is provided and the new employer can rely upon that.

And even if you turn that on its head, my thought process, whenever I was looking at it, was if there are grievances that an employee has raised, and notice of the grievances are provided, say that the personnel files are provided across on the information consultation process, it's really important that the new employer knows about those grievances.

If there have been instances of bullying harassment that maybe have been founded, and the employee then raises with the new employer to say, "This has happened again", if you took the principle that it was a clean slate, that would have to work then also in the grievance side.

So you can understand why the law works the way that it does, and that those disciplinary matters are transferrable.

Scott: The law protects the employee so that their existing terms and conditions and everything that goes with that transfers, but that includes the bad as well as the good. And unfortunately, because you have continuity in employment, you also have continuity with all these disciplinaries. So under this question here, the employee could well face dismissal if their record doesn't improve.

Seamus: Absolutely. And I don't think there is an opportunity even for the new employer to say, "Well, look, you haven't breached our normal policy". You're working off the existing terms and conditions that the employer comes across on.

And trust me as well, another thought that I just had was . . . again, just going back to the good old GDPR regulations and the aspect of sort of personnel files getting transferred across during this information and then going on to the consultation, I suppose it's just worthwhile thinking about that. If you are in the existing company that the employees are moving across to, whenever you're providing information on the personnel file, you're only providing the relevant information. So it would be the likes of the live warnings and things that are contained within the file.

Scott: Well, that would be upfront to start with, because you've got a statutory requirement to do. So you'd have a right under GDPR to transfer this stuff, but you also have an obligation to transfer it all anyway once the transfer takes place. So presumably, you would justify passing those over. So you couldn't have an employee in this situation saying, "Oh, the GDPR stops you knowing what my warning is. You can't pass over to the new employer". They have a right to know about it.

Seamus: Yes. I mean, certainly, there's a clear situation that you have to pass it off. And there's a precedent in relation to that. I suppose that the other thing is that if you're looking at personnel records as the HR manager that's preparing for the transfer of the information, and there are DTOs going back to 20 years ago and maybe a situation where somebody's personnel information has changed in terms of their next of kin, maybe they've gone through a divorce and met someone else and things like that, you're not under GDPR providing the irrelevant information as well.

That was my thought process just in relation to that, because I had it last week. We were looking at personnel files, and I was thinking that so much of this is contained that is no longer relevant, and there is a potential breach of GDPR if it goes across. So just to flag that up.

Company vehicles and tracker devices

Scott: Okay. You are listening to Seamus McGranaghan and we shall be listening to Hannah McGrath shortly. I'm Scott Alexander. I'm from Legal-Island. We're going to move on now to company vehicles and tracker devices. We dealt with company vehicle tracking last month, but we've got another question coming in following on from that discussion.

Is it reasonable to look at the tracker to truly investigate potential misuse of the vehicle without having a specific policy in place?

So this question here, Seamus, tracker question. "Specific policy or procedure is not in place, but employees have been made aware of the tracker on the vehicle for business purposes. A concern was raised with regards to an employee's behaviour. Is it reasonable to look at the tracker to truly investigate potential misuse of the vehicle without having a specific policy in place?"

Seamus: Yeah, last month we looked at . . . it's hard to believe that that was over four weeks ago now, but last month we did look at the aspect of company vehicles and tracking devices. And the advice was that you should have a policy and procedure in place in respect to that, but I can see this question has come on probably from the fact that they don't, and then they're having concerns about the fact that they don't, but there's the potential that they want to do some investigations.

You know, the basics of it are that the vehicle tracking system does collect personal data as well as business information. They're recording the location of the individual in charge of the vehicle at any particular time. But the bottom line is there must be a reason before you can monitor or track the employee, and it must be a legitimate reason. I think that's the key for this. And it must be a legitimate interest of the data controller without prejudice to the rights and freedoms of the employee.

So it's a bit of a balancing act that you're doing in relation to, you know, the operation of the business and very legitimately wanting to know where certain vehicles are. If you have another pickup or another job to do, that you're able to look at it and find out where the individual is and pass them on.

But the aspect of going back in to look at those more personal details of . . . you're not using it solely for that business reason to find out where the vehicle is to pass it on to somewhere else, but because you have worries are concerns about the employee's behaviour. So that's why it's key for you to have the policy and procedure in place.

Scott: It muddies it to the extent a tribunal might come around and say, "You're using it for a separate purpose", or the lawyer for the claimant might say, "Hold on a second. GDPR says you're only supposed to use data for the purpose of which it's being collected". So it causes some difficulties, and some of those things can't be unlearned.

But at the same time, you've got the right to protect your business. If you've got somebody who is trying it on, then you might want to just take a risk and use the information anyway.

Seamus: I agree, absolutely. I mean, the strict legal position would be that if the purpose for the tracking device is to deal with the business aspect, that's the realm that you should be working in.

But saying that, I think I maybe mentioned this on the last occasion as well. I had a client of mine that just by reviewing the records, which they were doing for business purposes for working out new logistic routes and things like that, they noticed that at 3:30 every day, the company van was at a local school where the employee worked. And the connotation that was taken from that was that the employee was actually at half three going and picking his children up from school every day and bringing them home.

And that led on to concerns as to . . . a number of times they noticed that they were ringing the employee at 4:00, and the employee was saying, "I can't get to that call, because I'm at this call doing something else".

And the information was there. They came through and they said to me . . . they provided me with their records, and they said, "It's within our knowledge", and they said, "We weren't going purposely looking for it, but we now have it. And what do we do about it?" And it's very difficult not to advise the employee whenever there is evidence in front of them that there is a breach of their policy and procedure. The vans were not meant to be used for personal use, and insurance issues and everything else with having other people in it that the company is not insured.

And we did deal with it on the basis of an investigation on a subsequent disciplinary. It didn't go down the line of a dismissal. Maybe if it had gone down the line of dismissal, there might have been more information for me to give to you about it.

Saying that even, I have come across cases as well . . . it's different, but it just gives you a flavour of the tribunal's view, cases where there have been surreptitious recording of meetings that have taken place. And in my experience, the tribunal have allowed us to . . . you know, it's been inadmissible evidence. They've allowed us to use it during the hearing, even though technically speaking it's a breach of the legislation and a breach of somebody's data protection rights if you're surreptitiously recording a conversation that you haven't . . . one that you're not aware of and that you haven't agreed to.

So, you know, from my point of view, I would think that even if you had come across the evidence in a way that you didn't set out to, but once you have it and it's within your knowledge, again, I agree with you, you're entitled to protect your business. But it is a balancing act of protecting your business and covering the privacy rights of . . .

Scott: It depends how you want to protect it, because you can protect it in a way that you warned somebody but you didn't dismiss. Or you could say, "We now know you're up to something. Don't do it again. If we catch you again, we're going to take action". So long as you don't dismiss first time around, you're probably okay. You know what I mean? It's when you jump in and you dismiss, and then somebody says, "Oh, you're not allowed to use this evidence", that it causes some problems.

And it may be allowed, it may not be, but it just causes you difficulties. And it means you're more likely as an employer to say, "I better settle, because this is a bit greyer than it used to be. We've caught somebody red-handed, but unfortunately, caught them red-handed using the wrong information". So, you know, we don't know which judge we're going to get. We don't know what the claimants are going to say. We don't know whether that stuff will be admissible. So it might be better just to mark their car and take it from there".

Seamus: Well, that's it. Another example that I can think of as well is that it's not just about the vehicle trackers, but now a lot of the employers and a lot of the companies have the little dash cams on the vehicles as well.

Certainly, where there have been accidents, where there have been vehicle damage and insurance claims and all that sort of stuff, the employer has gone back and reviewed the dash cam footage to find out exactly the way the employee was driving. And I think some of that dash cam coverage is linked to the car and can show the speed that they were going at and things like that as well. A number of them have used that as well to discipline members of staff. But again, best policy is to have it written down in the policy and procedure.

Scott: Okay. Thank you very much. We've got a question, and I don't know if we're going to deal with it quite now, or maybe give the solicitors here time to have a wee think, but got question in there. If an employee feels that they have been unfairly treated as a result of sickness attributable to their gender, for example, menopause, PMS, etc., could this be seen as discriminatory?

Working Time

Should an employer be offering time in lieu if they do not have contracted overtime payments within the contract?

We'll see if we get back to that, but what we're going to deal with first is working time. So, should an employer be offering time in lieu if they do not have contracted overtime payments within the contract? Or does it not matter if you stay within the 48-hour maximum working week, unless somebody is contracted out of that?

Seamus: Go ahead.

Hannah: I think this is found off of one of the questions that we had last week. This question kind of suggests that there's a link between overtime and the 48-hour max. They're two separate things there. I think the employer will probably need to start by looking at . . . I know they said they don't have contracted overtime payment, but check your contracts to make sure. If someone hasn't been there for years, and the contract potentially says something different there, I think that would definitely be your starting point.

But the bottom line is that, in Northern Ireland, there's no entitlement to be paid for the overtime, unless, obviously, it's in your contract and it says you're going to get paid for it. But I do think what the employer should be considering is, "Should it be reflected in the holiday pay that the employee is receiving?" We talked about it months ago now, the Dudley case and the requirements for overtime being considered in holiday pay.

Scott: Yeah, you get your average pay when you're on holiday as opposed to just your basic hours.

Hannah: Yeah, exactly. So in terms of answering that question, you know, you don't need to offer the time in lieu. There's no requirement for it, but you should be considering, "Should this be reflected in the holiday pay?"

Scott: That, presumably, is if they get paid anything for overtime, even basic hour. So I could do more than . . . what's contracted hours? Thirty-five hours. I don't know when I last did anything like 35 hours. Maybe when I was on holiday I was doing 35 hours. But I don't get paid any extra for doing extra work. And there's nothing in law that says I should get paid. I get paid a salary to get the job done, and if it takes me over 48 hours, it takes me over 48 hours. And that's up to me.

There may be working time issues and stress issues and all those kinds of things coming on down the line, but when it comes to the payment, there just isn't a right to be paid unless it's in my contract. And you don't have to pay for every hour unless you're an hourly paid worker, and it would be in your contract.

Following up on your holiday situation there, if you end up getting more money normally, regularly, in your pay packet than it actually says in your terms and conditions of employment, that should be reflected in your average holidays, at least for the working time holidays, the first 20 days or whatever it happens to be, subject to appeal that might be happening in Northern Ireland or whether it extends beyond that. So thank you very much for that question.

Seamus: I think the other aspect is that if you approach an employee, and you say, "I would like you to do some overtime", the employee can say, "Well, what are you giving me for it?" And sometimes there's a bit of a negotiation that commences, and the answer can be, "Well, look, we don't pay overtime at an additional rate. We pay it at the same hourly rate". Or sometimes, the answer is, "We can pay it in TOIL in terms of the payment in lieu".

But I suppose you just need to be careful in those circumstances as well, that there isn't a precedent that builds up. And if you're taking that approach with some employees . . . and it may be that you have different grades of employees and there are those employees do the work for however long it takes. They may not seek any additionality. But if you have maybe an hourly rate paid member of staff, you just want to be careful that you're clear about what your position is, and that you're not setting up any sort of dangerous precedents there as well, where it is paid or where there's time given off instead.

Scott: Okay. Thank you very much, Hannah and Seamus. It just shows you how complex and interrelated these things are.

Vento Bands increase

Just a stop press. I've just had an email coming through here that the Vento bands have been increased. These are the injuries to feelings limits that you get under sex discrimination or other discrimination claims. The lower band has gone up to £8,800, the middle band has gone up to £26,300, and the upper band has gone a whopping increase, £26,300 up to £44,000.

Seamus: That's substantial.

Brexit

What is the impact likely to be on staff who live and work cross-border?

Scott: So that's quite a sizeable increase there. Okay. So we've dealt with working time, we've had the trackers, and we've had a couple of TUPE questions. Let's move on to the B word, Brexit. "We have a member of staff who lives in Donegal and works in Derry/Londonderry. I'd like to know how her employment is likely to be affected if and when the UK leaves the EU". Hannah?

Hannah: I suppose the question is what do we know about Brexit? Best situation, if we're going on the assumption that the employee that lives in Donegal and works in Derry is an Irish citizen, that will continue on as normal. There will be no issues there between going between the south and the north.

For an employee who is, I suppose, in Northern Ireland, isn't originally form the UK, but is from another EU member state, what we do know is that there has been a settlement scheme put in place, and basically kind of operates as the same as what's in place now. If you have been continuously living in the UK for five years, you'll get what's called "settled" status. If you haven't, then you can get what is called "pre-settled" status. And obviously, at the end of those five years, then you can become settled status at the end of that.

Scott: But in this case here, Hannah, the person is coming from outside the UK and they're coming from what will be an EU country if Brexit happens. And it really comes down to whether they are an Irish citizen who have the right because of the common travel area to go between the two states as it will be, one a member state, one not a member state.

But if you have, say, a Polish worker who's travelling from Donegal to Derry, then those ones wouldn't have the right to apply at the moment for settled status, because they're not living in the UK. And presumably, they will be treated like everybody else. Unless they get Irish citizenship, they'll be treated like any other foreign worker, whether they are inside or outside the EU, post-Brexit, we assume. Basically, they may or may not have the right to apply, and therefore they'll just be treated under the normal immigration rules.

Now, there's something about a £30,000 limit that's being consulted on at the moment in order to work . . .

Hannah: Yeah, there are a couple of things floating around about the limit of what can be earned whenever you're a foreign national working in the UK post-Brexit, but nothing is clear at this time. We don't know what the procedure is going to be for it, but I think what employers should be doing is communicating with their employees and assisting them with the questions, and getting them in contact with people that, you know, can help them apply for potentially the settlement scheme if they have been living here, or just employees regularly contacted so that they can keep up to date with what's happening.

You know, I can understand businesses here are worried about where their workers are going to be coming from, and that's skilled workers that they're worried they're not going to have access to afterwards. And I think particularly in the hospitality sector, it's a big fear that they're not going to have access to workers.

A1 certification on postings in Europe

I would be interested in a quick summary of the scope and employer responsibilities related to A1 certification and postings in Europe. We have a large number of employees who travel to Europe and beyond for business travel

Scott: Okay. So we'll move on to a kind of related one here, which is the A1 certification on postings in Europe. And it says here, "I would be interested in a quick summary of the scope and employer responsibilities related to A1 certification and postings in Europe. We have a large number of employees who travel to Europe and beyond for business travel".

Hannah: Yeah, so there's an EU directive that allows employees to work for a short period in another EU member state. It must be for a short period. It can't be for any longer than 24 months.

And whilst they're in that other member state . . . so say Northern Ireland to France. We'll use that example. Whilst working in France, they are still employed by their Northern Irish employer. They deal with the recruitment, the contract, the nature of the work that they're doing there, and they enjoy the protection of the Northern Irish legislation respect of their employment.

But their terms and conditions must be of the same advantageous quality as their host country. If the Northern Irish terms and conditions are better, they get that. If the French terms and condition are better, then that's what their terms and conditions should be reflective of.

Scott: Yeah. So that's really to stop somebody . . . say the national minimum wage is higher in France, and you send a national minimum wage worker to France. I think that's unlikely, but anyway you would get the higher rate of national minimum wage, and similarly with holidays.

If you take France, there is a 35-hour working week limit there. So you would have various rules around that, and you wouldn't be able to breach the host nation's employment rights. That's effectively what we're saying. And that's for European transfers.

Hannah: Yes, between the EU member states.

Scott: Posting of workers. What about if you're posted outside the EU? There's a rule under the '96 order where you're given written terms and conditions that say that you've got to do certain things, isn't there?

Hannah: There's Article 33 of the order, and it says that your employer should provide you with the period of time that you're going to be working outside of the UK, the currency that you'll get paid whilst you're working outside of the UK, any additional remuneration or any benefits that you're going to get. So presumably, if you're working, say, in India or Dubai or something, you may be able to get an allowance for flying home or maybe family coming out to visit you every so often.

Seamus: Or sometimes you get childcare and all sorts of additional benefits added in whenever you're being asked to move to a different country. Sometimes you get accommodation and a staff.

Scott: A nanny and all that kind of stuff, yeah.

Hannah: And private school then, I think, comes into it sometimes.

Scott: Generally, it doesn't involve people on the national minimum wage. You can ignore that point, I think.

Hannah: And then, finally under that order, you must be given terms and conditions relating to your return to the United Kingdom.

Scott: Right. Thank you very much. "Do the regulations as to posting of workers apply to very short visits, say, half a day's business travel and so on?" And from memory, the short answer is no. I hope so, anyway, because that's . . .

Seamus: You'll be looking to put an additional claim in. The legislation, just to check that, does say where you're going to be working for more than one month, so that's the guiding principle. If it is just a short trip, and often within mobility clauses within contracts, they'll sometimes say that you might be asked to work outside of the UK, but it won't be for more than a month, something along those lines.

Scott: And that's to cover that particular aspect under '96 order, under the written terms and conditions requirements that apply across Europe.

We've got a few minutes left, 10 minutes, and there are a couple of questions here. They're fairly similar, but they're about the time limits that you have to take a claim to an employment tribunal. So, give your flavour to one of them.

Should we be giving the employee an A1 form for going to an EU country for a short period?

Hannah: Short answer is yes, but what you need to be able to avail of that, being subject still to the UK national insurance contributions, is that you must have been working for one month in your own country first, and then you can get the A1 from HMRC.

Time limits to make a claim

What are the general rules about a late application to an industrial or a fair employment tribunal?

"I think I have a claim of age discrimination against a former employer. I was denied a promotion a couple of years ago, and have since left the company. New information has come to light, and I think I should take a claim, but I’m outside the normal three-month time limit here". Indeed, you're many months outside it. "Could you explain the rules and whether there is any case law that might help me in my late application?"

We got a further one there which is an employer promoting three employees to directors. The positions were not advertised, and at a recent tribunal, the MD stated the appointments were the decisions of the company owners, being himself and two others. The three appointments came with new contracts and an excessive remuneration package. The MD told the judge he had signed and dated an equal opportunities policy, etc.

The point is, as this goes on, the time now is we're outside the three-month time limit. So what are the general rules about a late application to an industrial or a fair employment tribunal?

Seamus: Well, the basic principle that everybody needs to work off is the fact that the legislation . . . and this is in the general because there are some exceptions to it, but in general you're looking at the three months from the date of the act or the date of the termination in order to bring your claim in the tribunal.

In general, I would have to say that from an employee's point of view, or a claimant's point of view, you're up against it immediately if you're coming in after the three months. It's not impossible, but you are up against it. I suppose there's bit of good news there for employers in that sense.

But also, you can often . . . particularly in and around if there has been redundancy. And redundancy, you need to be careful about with the three-month time limit because it can extend out to six months. But a lot of the time, they'll say, "We're past the rate for someone to bring a claim in the tribunal, so let's just take our action now that we intended to do".

And I suppose the aspect of the knowledge just arising is really where . . . with the two queries that we've had, the person is only finding out, post the event after the time limit has passed, that they would have had a claim or that they may have a claim.

In general, the order itself, the 1996 order, Article 55 in relation to that talks about the ability for the tribunal to extend the time where it wasn't reasonably practicable for a complainant to have brought the claim within that time.

And then if you look at sort of the more discrimination side of things, the test changes from being reasonably practicable to whether it's just and equitable for them to do that.

Ultimately, the position that you need to be coming at is that the discretion for the tribunal to extend beyond that is wide, and it is broad, but the tribunal's position . . . I had a recent case where I was dealing with a case down with one of the judges on a PHR (pre-hearing review) point. And what was clear from the decision that we got back in relation to that is that it's the exception rather than the rule in terms of the extension. So it does need to be something that is pretty exceptional in order to get across the line.

Scott: It would almost be, in the case of the second one, that the employer lied about various things, and the lies have only just come through, and that's where you might turn around as a judge and say, "Hold on a second, there's been a real wrong done here. The information has just come to light". But it also comes down to how quickly did you get it in once that information came to light? You shouldn't really be delaying that either. That's the general perspective.

Seamus: The bottom line is that the onus is on the claimant to establish the reasons, and to give a flavour of the sorts of things that the tribunal will want to be identified. You know, they'll look at when the time limit started to run, what actions has the claimant taken through that period. They'll want to know what's the cause of the claimant's failure to bring the claim on time, and importantly, they'll look at whether there is any prejudice in granting the extension. You know, obvious prejudice of having to defend a claim that would otherwise have been defeated by the statute of limitations, and it's unfair in that sense.

And second of all, it's this sort of forensic prejudice that the case law talks about as well. You know, it's the aspect of fading memories, loss of documentation, losing contact with witnesses, the real practical side, and whether that's fair on the parties to look at that. And that's a sort of just and equitable aspect you look at.

But, I mean, certainly, from my experience, I've had a number of cases. One where I was trying to bring a case that was late, and my client had only found out the circumstances and doubted the judge . . . I mean, the judge went through everything in terms of wanting to know his educational background, was looking at how . . . from the educational background as to how well versed he would have been to be able to do some research online. The judge couldn't believe my client, that he'd never heard of an industrial tribunal before.

My client was a 23-year-old male, was reasonably well educated, and beginning to work after he left school at 18. Wanted to know what they talked about at the dinner table at home with his parents. What did his parents do? What background did they have? Really couldn't get over the idea that the claimant could not have been aware of his rights, and my client was there like, "It just wasn't something that I was aware of. It wasn't within my knowledge".

At one point, I was dying to say, "Believe it or not, judge, not everyone spends their time looking case law up and employment law up on the internet", but this was how far the judge went to push these issues on.

In another one that I had that I was defending, the claimants had taken advice from what would have been the Citizens Advice Bureau at the time. They had put claims in. They actually contacted the tribunals in England, got the forms, realised the forms were wrong, delayed for two weeks before they put the claims into the tribunal here.

The judge went through every single step of what they did, and looking . . . I mean, it was four of them, and there was a ringleader that was really sort of in control and was helping the other fellows out. The detail that the judge went into.

So certainly what I would say is that it is not certainly an easy task to get it brought in out of time, and you really are looking at the exception rather than the rule.

Restrictive Covenants

Can we make an employee who is leaving sign a restrictive covenant when are leaving to work for a competitor?

Scott: Okay. Let's look at the time here. We have two minutes left to deal with a restrictive covenant question that came in. I don't have it written in front of me, but it was basically this. "We have somebody leaving tomorrow. They're going to go to a competitor. We want them to sign a restrictive covenant. What can we do about it?" And the answer is nothing. You're stuck.

Seamus: The answer is that if you're looking to enforce restrictive covenants, they need to be set out in the contract of employment. If an employer doesn't have restrictive covenant set out in the contract and someone gives their notice, and they think, "Geez, we really should have had restrictive covenants", you can negotiate with the employee. You can look to pay them a higher sum. It would have to be a significantly higher sum, presumably, but if you don't have them at the outset, you're going to be in difficulties in terms of trying to convince a claimant to sign an agreement where you have a whole fresh set of restrictive covenants in. So do the work at the start of the contract.

Sometimes I've come across it as well. Let me just mention this briefly. On a TUPE transfer, the new employer wasn't satisfied with the restrictions that were placed in, and they paid a sum of money to the employees and said, "Take this increased sum of money in exchange for signing up to the restrictive covenants". And then they did a sort of phased-out process in terms of if you left within one year, you had to pay so much back. If you got through 10 years, you didn't have to pay anything back. And that was a way of safeguarding it.

But again, the employees had to take independent legal advice in terms of the restrictive covenant before they signed up to them.

Scott: Okay. We'll have to leave it there. Thank you very much for listening. Thank you very much to Hannah McGrath and Seamus McGranaghan from O'Reilly Stewart.

If you want to get in touch, you can drop a line to me, scott@legal-island.com, or you can post questions just on the website if you want. We will deal with them, as ever, anonymously next month.

The next date that we have is, I think, the 3rd of May. So the next one is on the 3rd of May. So hopefully, we'll see you there. Tell all your friends, and thank you very much. Bye.