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Ami is a senior lawyer who specialises in both contentious and non-contentious employment law, and advises on board level appointments and departures, disciplinary and grievance matters, cross-jurisdictional disputes and business re-organisations.
She has over 14 year’s litigation experience helping businesses defend cases in Employment Tribunal, Employment Appeal Tribunal and the High Courts, and is also an experienced Tribunal advocate.
"Ami is someone you always want fighting your corner." - Legal 500, 2011
This ECJ decision will be disappointing news for commissioning parents in a surrogacy situation, as it gives them little or no employment rights in terms of leave or pay, particularly after the struggle that they might have endured to have a child. The commissioning parents would be left with agreeing unpaid leave or a sabbatical to initially bond with their child, of course if they can afford to do so.
“Alternatively they could use up holidays or take time off for dependents in an emergency situation. They may also consider making a flexible working request, which their employer would be obliged to consider.
“Employers will need to consider the impact on the employee’s moral and motivation if some arrangement of agreed leave in such a situation cannot be agreed with the employee.
“However the UK government, within the Children’s And Families Act from April 2015, is trying to address this loophole, with commissioning couples in a surrogacy situation being entitled to flexible parental leave from April next year”.
Whilst sickness absence in the workplace is inevitable and unavoidable most of the time, employers have toughened up in terms of policing sickness, with appropriate policies and procedures in place. The fall in sickness absence, although welcome news, will therefore probably not come as a surprise to those prudent employers who have such policies in place.
"It is also not a surprise that hours lost to sickness are higher in the public sector, where there are often more generous sick pay provisions.
"It is also interesting to note that women generally have higher sickness absence than men and this may be because women elect to take paid sick leave, rather than time off for dependents when they have a poorly child or childcare issues for example.
"In terms of approaches to tackle sickness, we have seen a variety of tactics used. For example, larger employers have in the past invested in in-house counselling support which allows workers to get support on key issues which will help them recover and reintegrate into working life.
"In addition, return to work interviews used as part of an absence management procedure are always a useful tool as they allow an employer to ask important questions about the absence in a sympathetic manner – which often leads to an early intervention on key issues affecting their staff.
"Having the right tools in place can make a huge difference not only to absence rates, but to the overall welfare of staff."
The real issue in the case was whether the Borough could show a ‘proportionate means of achieving a legitimate aim’, of finding employees to fill its work rotas on Sundays.
"Whilst the Court of Appeal rejected Ms Mba’s appeal, its acceptance that Sunday observance was core to her faith is significant for Christians.
"The Court Of Appeal considered that earlier findings by the Tribunal were wrong because they did not consider that Mrs Mba’s observance of the Sabbath was a core component of her Christian faith, whereas the Court of Appeal considered that working on Sundays was unacceptable for some Christians.
"The first point for employers is to consider whether the contract of employment has provision for Sunday working.
"Religious requests should only be accepted where it is fair and practicable to all. Employers should be able to refuse a request, if it would impact on efficiency, viability of the business or result in discrimination against other employees."
Under Regulation 7(1) of TUPE 2006, dismissal of an employee is automatically unfair where the sole or principal reason for the dismissal is the relevant transfer, or a reason connected with the relevant transfer that is not an ETO organisational reason.
"In such circumstances the liability passes to the Transferee (i.e. the purchaser of the business) under Regulation 4.
"In Crystal Palace FC Limited and Another v Kavanagh and Others , the Court of Appeal has given judgment that employees of the insolvent football club, dismissed by the club’s administrator shortly before the business was sold, were not automatically and unfairly dismissed under TUPE 2006.
"Previously, in the case of Spaceright Europe Limited v Baillavoine and Another , the Court of Appeal held that dismissals carried out to make a business more attractive to potential purchasers could not be an ETO reason under TUPE 2006.
"However in contrast, in the Crystal Palace judgment , the employees’ dismissals were designed to ensure that costs were reduced to enable the club to continue to trade – and not therefore simply to make it a more attractive proposition for a purchaser. This was an ETO reason that could be distinguished from the administrator’s ultimate objective of selling the club as a going concern.
"It is interesting to note that the Court of Appeal stated that the application of Regulation 7 of TUPE 2006 is ‘an intensively fact sensitive process’. This coupled with the policy of encouraging ‘corporate rescue’ means that detailed advice and care should be taken before characterising dismissals by an administrator as legitimate manipulation of the TUPE regime.
"This should be welcome news for administrators, as well as for potential purchasers of distressed businesses. In the majority of cases for administrators, the transfer of the business will be the ultimate aim.
"However it does not follow that the reasons for dismissals will always be to make the business more attractive to a purchaser as this case has shown, and evidentially this was the position here.
"In the Crystal Palace case, it was to allow the business to carry on trading – a ETO reason – and as a consequence of which liability did not pass to the purchaser."
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