However, the employment tribunal found other factors pointing away from a contract of employment, such as the lack of disciplinary procedures, the fact that Mr Conroy purchased his own flags, whistles and notebooks, his right to decline matches and the SFA's right to refrain from offering him any matches at which to officiate. Lady Stacey concluded by saying that it is perfectly possible for a regulatory body such as the SFA "to have standards and rules which a referee must meet and adhere to without him being employed by it"•
Penalty Clause in Employee's Notice Period
25 June 2014
The Employment Appeal Tribunal (EAT) has ruled on whether a clause deducting a month's salary for an employee's failure to work their notice period is a penalty clause.
We are grateful to Daniel Barnett for this summary of the decision in Li v First Marine Solutions.
The Claimant resigned and did not work her notice period because she said she had outstanding holiday. The parties agreed that the effect of the contract was that the employer could not only to withhold her pay for the period not worked but also deduct from any sum outstanding a sum equal in value to that shortfall. The Claimant argued that this was unenforceable as a penalty clause. The employment tribunal held that the clause was enforceable. The Claimant had not worked her notice period (she did not have holiday remaining), and it was difficult and expensive to recruit a replacement at short notice. In upholding that decision, reluctantly, the President of the EAT (Mr Justice Langstaff) expressed concerns that the parties had agreed the effect of the clause. He made a number of observations on clauses of this type (at paras.43 to 47).
Firstly, the employment tribunal should consider the 'reality of employment circumstances', and whether the effect was really intended. The normal principle is 'no work, no pay'.
Further, employment tribunals should carefully consider whether the clause was a penalty clause, a liquidated damages clause or simply a clause entitling the employer to withhold pay.
Compulsory Retirement Ages
3 July 2014
The Employment Appeals Tribunal (EAT) has ruled on the question of whether 65 is an appropriate age for mandatory retirement.
We are grateful to Daniel Barnett for the following report on Seldon v Clarkson Wright & Jakes, a well known and long-running case.
Mr Seldon, formerly a partner in a firm of solicitors, was compelled to retire at age 65 under the provisions of a partnership deed. He complained of direct discrimination on the grounds of age. The appeal courts held that such discrimination was capable of objective justification, and Lady Hale's judgment in the Supreme Court made it clear that measures which sought to achieve inter-generational fairness or dignity at work might amount to legitimate aims.
CIPP Policy News Journal
08/04/2015, Page 110 of 521
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