CM October 2023

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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
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