The purpose for making a covert recording may vary from attempting entrapment to guarding against misrepresentation. The nature of what is recorded can also be relevant, varying from a meeting where a record is normally kept, to highly confidential or sensitive information relating to the business or other people. An employee might have been told not to record a meeting, or might have recorded it without giving thought to the blameworthiness of doing so. Practitioners may note the EAT's observation that employers rarely list covert recording as an example of gross misconduct in disciplinary procedures.
*Polkey principle
If an award to a claimant is made in an unfair dismissal case, it usually consists of two elements: a basic award and a compensatory award. The basic award is based on pay, age and years of service, and the compensatory award covers the financial loss relating to the dismissal. Both are subject to limits and potential deductions. One of the most common deductions to compensatory awards is called the Polkey deduction (or reduction) and it can occur when an employer has been found to have acted unfairly in dismissing an employee by failing to follow correct procedure.
Read more from Acas on understanding the Polkey deduction.
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Employer Counterclaims 19 July 2019
The Employment Appeal Tribunal has held that an employer's counterclaim can continue even if the employee has withdrawn their breach of contract claim.
The Claimant (a sales consultant) brought a number of claims following his dismissal, including unfair and wrongful dismissal, arrears of pay, and claims for other payments.
Daniel Barnett’s employment law bulletin summarises the case of Cortel Telecom Ltd v Shah. The Respondent brought a contractual claim for overpaid salary and the value of lost business. At the hearing, the Claimant withdrew most of these including a breach of contract claim, limiting his claim to unlawful deduction from wages. On that basis, the tribunal held that the Respondent's contractual claim could not proceed. However, it went on to uphold his wrongful dismissal claim and award the Claimant his notice pay. The EAT held that the tribunal had overlooked that, following Delaney v Staples , a claim for notice pay cannot be brought as an unlawful deduction from wages. The claim for wrongful dismissal was properly brought but this meant that the Respondent was still entitled to have its contractual claim heard, whether or not the Claimant withdrew or abandoned his claim.
This case is a useful warning to Claimants (and their representatives) to think carefully before bringing a contractual claim as once the door is opened to a counterclaim it won't be closed if that initial claim doesn't proceed.
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Agency Worker v permanent employee 30 July 2019
The Court of Appeal has held that an agency worker is not entitled to be offered the same number of hours of work as those performed by a permanent employee.
In the case Kocur v Angard Staffing Solutions Limited:
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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