CM October 2023

HR MATTERS
STRIKE FORCE
Strikes, parental leave and a breach of contract
AUTHOR – Gareth Edwards
THE High Court has upheld
a judicial review of
regulations that allowed
businesses to use agency
staff to cover for striking
workers.
Last year, the government introduced
regulations to remove the ban on
employers using temporary workers
to perform duties normally performed
by striking workers during industrial
action. The aim of the regulations was to
reduce the disruption caused by industrial
action.
However, 13 trade unions brought
a judicial review of the government's
decision to pass these regulations, citing
a failure to consult before legislating,
also alleging a breach of Article 11 of the
European Convention on Human Rights
that prevents unlawful interference
with the rights of trade unions and
their members.
The High Court upheld the challenge
on the consultation ground. Having
decided the case on this one ground it
did not express a view on that relating to
Article 11. The High Court has quashed
the regulations with effect from 10 August
2023. This means that from that date,
employers will no longer be able to use
temporary staff to cover the duties of
striking workers.
Government report on shared parental leave
THE Department for Business & Trade
(DBT) has published a report on the
Shared Parental leave (SPL) scheme.
Take-up rates remain very low, with only
one percent of eligible mothers and five
percent of eligible fathers or partners
taking SPL.
SPL is a type of family leave that enables
eligible employees to take flexible leave
during the first year of their child's life
or the first year after adoption. Families
who opt to take SPL can take up to 50
weeks of leave, of which up to 39 weeks
can be paid at the weekly statutory rate
(currently £172.48). Partners can take leave
concurrently or consecutively depending
on their preferences and subject to certain
eligibility and notice criteria.
The DBT report shows that SPL takeup
varies by age, income, qualification
level, and occupational status. Eligible
Factors
encouraging
parents’ decision
to use SPL
include support
from partners,
employers and a
desire for flexible
working.
employees who take up SPL and Shared
Parental Pay (ShPP) are more likely to
be older, white, highly qualified, work
in large organisations, earn a higher
income, and have progressive gender role
attitudes.
Factors encouraging parents’ decision
to use SPL include support from partners,
employers and a desire for flexible
working. Conversely, financial pressure
was cited as a principal reason for not
making use of SPL. Some parents who
did not take SPL also reported that
this was because the SPL scheme was
too complicated to manage. Whilst 85
percent of parents who took SPL said
they were satisfied with their current
working arrangements, 15 percent of
fathers or partners who took SPL reported
that it negatively affected their career
progression.
High Court dismisses interim injunction
IN the case of Hine Solicitors Ltd v Jones
and another, a former employer failed in
their application for an interim injunction
against an employee who resigned in
breach of the notice provisions in her
employment contract.
Under the contract, the employee was
prevented from giving notice until she
had served a three-year minimum period
of employment. She resigned in breach of
this clause.
Hine originally sought an injunction
to prevent the employee from working
elsewhere until the expiry of the
contractual term. However, that
application was withdrawn and Hine
instead sought an order to prevent
the employee from enticing away or
attempting to entice away any clients
of the firm. Hine argued the employee
had committed a repudiatory breach of
contract by resigning in breach of the
contractual term. It argued that the breach
was not accepted and that it was seeking
relief to prevent the employee breaching
the common law duty of fidelity.
The High Court found that the
contractual term was valid and effective.
However, it dismissed the application for
injunctive relief which is used to stop an
alleged breach pending a full trial.
In this case, Hine had only raised the
employee's alleged breach of contract on
her penultimate day at work after she
had served three months' notice, and
after she had had an exit interview, a
handover meeting, a leaving dinner and a
leaving presentation. There was therefore
a serious question as to whether the
employee's alleged breach of contract had
in fact been ‘accepted’ by Hine when she
resigned.
In respect of the employee's conduct,
she had not breached the non-compete
provisions in her contract and there was
no evidence she had taken any steps to
entice clients away from Hine.
This decision highlights the importance
of taking prompt action where an
employer is seeking injunctive relief. The
case also demonstrates the difficulty of
relying on implied duties to protect client
relationships.
Gareth Edwards is a partner in the
employment team at VWV.
Brave | Curious | Resilient / www.cicm.com / October 2023 / PAGE 40