Welcome to the May edition of the Employment Up to Date. Read on for a roundup of the latest news and developments in relation to employment and immigration.

Constructive dismissal: breaches of contract which have been affirmed by the employee can be revived by a later breach

Employers beware - the recent Court of Appeal decision in Kaur v Leeds Teaching Hospitals NHS Trust resolves prior uncertainty about whether employees can still claim constructive dismissal, having affirmed an earlier repudiatory breach of contract.  The Court of Appeal has clarified that employees may still resign and claim constructive dismissal if a further incident occurs after the employee’s affirmation which forms part of a course of conduct that cumulatively amounts to a repudiatory breach of contract.

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Disability: dismissal for misconduct which the employer didn't know was connected to disability was discriminatory

In City of York Council v Grosset the Court of Appeal upheld an Employment Tribunal decision that an employer discriminated against a disabled employee by dismissing them for misconduct which arose in consequence of the employee's disability.  This was the case despite the fact that the employer did not know of the connection between the disability and the misconduct.

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Variation of contracts: acceptance must be unequivocal

In Abrahall & Others v. Nottingham City Council & another, the Court of Appeal was asked to consider the circumstances in which an employee could be deemed to have accepted changes to terms and conditions of employment which had been implemented unilaterally. The Court of Appeal found that, while in certain cases acceptance could be inferred by conduct, the employee's behaviour would have to be capable of no other reasonable explanation. Acceptance had to be unequivocal and, where there was ambiguity, the employee would be given the benefit of the doubt.

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Discriminatory harassment: context can be crucial in deciding whether unwanted conduct amounts to harassment

The EAT has ruled that when deciding whether claims of unwanted conduct are "related to" a protected characteristic the Tribunal must consider the surrounding facts and circumstances of the case.

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Immigration law update: what’s new for employers?

Our Immigration team rounds up the latest immigration law developments for employers.  This briefing considers the following four areas: (1) Restricted Certificates of Sponsorship allocations; (2) Home Office treatment of NHS workers; (3) the Migration Advisory Committee Interim Report; and (4) Tier 1 (General) migrants' applications for settlement.

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Senior Managers Regime: personal accountability in financial services firm

In this article, our Financial Regulation team consider the latest extension to the senior managers and certification regime (SM&CR). In July 2017, the FCA published a consultation paper (CP17/25) proposing changes to extend the SM&CR to FCA solo-regulated firms.  The new regulatory framework will largely replace the Approved Persons Regime. Banks, insurers and some large investment firms have been subject to SM&CR since March 2016. The extended regime is applicable to remaining insurance firms from 10 December 2018. Although there is no set date for implementation to other firms still outside the regime, we expect the new rules to apply from mid-to-late 2019.

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Amanda Steadman

Amanda Steadman

Professional Support Lawyer, Employment
London

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