The Supreme Court of Canada recently reiterated that restrictive covenants that arise in the context of the sale of a business will be treated differently and more generously than those that arise in the context of a contract of employment. While the case arose under the Civil law of Quebec, it clearly has implications for the Common law regimes in the rest of Canada ...
On September 12, 2013, in Payette v. Guay inc.1, the Supreme Court of Canada rendered a decision which will be of interest to anyone involved in a transaction for the purchase or sale of assets. The Court shed some light on the interpretation of clauses restricting employment and post-employment competition which are contained in an agreement providing for the sale of assets but which, incidentally, includes an employment contract ...
Although summer has come to an end, the OFCCP’s efforts to enforce and increase federal contractors’ affirmative action and equal employment opportunity obligations have not. On August 23, 2013, the OFCCP released an updated version of its Federal Contractor Compliance Manual (“FCCM”) ...
On September 4, 2013, the Ontario Court of Appeal ordered Metron Construction Corporation (“Metron”) to pay a fine in the amount of $750 000 for criminal negligence causing death.1 After Metron pled guilty to the offence, the trial judge ordered the company to pay a fine of $200 000. This case was the result of the collapse of a swing stage from the 14th floor of a building on December 24, 2009 which resulted in the death of a supervisor and three employees ...
On September 5, 2013, the Supreme Court of Canada allowed the motion for leave to appeal filed by the Commission des normes du travail against the decision rendered in March 2013 by the Court of Appeal of Québec in the case of Commission des normes du travail v. Asphalte Desjardins inc.1 In this decision, the Court of Appeal confirmed the right of an employer to waive the resignation notice given by its employee ...
The EAT has confirmed, in the case of Brito-Babapulle v Ealing Hospital NHS Trust, that a Tribunal fell into error when it held that dismissal would always be within the band of reasonable responses in cases of gross misconduct. Whilst dismissal was almost always inevitable in cases of gross misconduct, the Tribunal failed to recognise that, in some cases, certain mitigating factors may mean that dismissal is not reasonable ...
Introduction A collateral warranty can be a construction contract and therefore subject to the right to refer disputes to adjudication, according to a recent decision by the Technology and Construction Court in Parkwood Leisure Limited v Laing O’Rourke Wales and West Limited [2013] EWHC 2665 ...
The Department for Business, Innovation and Skills (BIS) has published guidance on employee shareholders. This guidance is quite useful and sets out the following 6 conditions which need to be met in order to become an employee shareholder: The individual and the company must both agree that the individual will be an employee shareholder ...
The government has today published its response to the consultation on changes to the TUPE Regulations, which are due to come into force in January 2014. Set to stay: service provision changes and employee liability information The headline point is that service provision changes are set to stay. Under the current TUPE Regulations, outsourcings, insourcings and retenders/second generation outsourcings would trigger a TUPE transfer ...
The Windsor Decision: On June 26, 2013, in a 5-4 decision, the United States Supreme Court issued a much anticipated ruling in United States v. Windsor,1 holding that Section 3 of the federal Defense of Marriage Act (“DOMA”) is unconstitutional on federalism and equal protection grounds ...
The Occupational Safety and Health Administration (OSHA) has released notice of a proposed rule to set new Permissible Exposure Limits (PELs) for respirable crystalline silica, among other requirements for controlling workplace exposure to silica. For all industries (general, construction, and maritime), the new rule would protect against silica exposure above the PEL of fifty micrograms per cubic meter of air (50 μg/m3), averaged over an eight-hour day ...
The EAT has confirmed, in the case of Sood Enterprises Ltd v Healy, that the right to carry over annual leave which a worker has been unable to use due to sickness absence is limited to the basic right to four weeks’ leave in Regulation 13(1) of the Working Time Regulations 1998 (“WTR”). There is no automatic right to carry over the additional leave of 1.6 weeks provided for by Regulation 13A, unless there is an agreement to this effect between the worker and the employer ...
In July 2007, Allstate Insurance Company of Canada (hereinafter referred to as “Allstate”) sent a notice of change of working conditions to all its insurance agents. Allstate was then employing approximately 90 agents in Quebec ...
A report on auto-enrolment opt-out rates has been produced following research undertaken by the Department for Work and Pensions (DWP). Introduced for larger employers in October 2012, auto-enrolment appears to have had a high initial success rate - with over 90% of auto-enrolled employees remaining in their workplace pension scheme a month after being enrolled. The one-month mark represents the expiry of the ‘opt-out window’ i.e ...
The Employment Appeal Tribunal (“EAT”), in the case of Secretary of State for Business, Innovation and Skills v McDonagh, has had to consider what the “appropriate date” is for the purposes of employees claiming arrears of salary and holiday pay from the National Insurance Fund, in circumstances where a voluntary insolvency procedure is followed by a compulsory insolvency procedure ...
The Technology and Construction Court (“TCC”) decision in National Museums and Galleries on Merseyside (Trustees of) v AEW Architects and Designers Ltd [2013] EWHC 2403 (TCC) was published last month. In his decision, Mr Justice Akenhead shows much pragmatism in assessing the heads of quantum put forward by the Claimant, which some may view as particularly widely casted ...
Expulsion due to ADHD was unwarranted. The Supreme Court held in its judgment of 13 June 2013. The case concerned a paralegal who was expelled from a fixed-term contract after four days of work on the grounds that she had failed to inform the employer that she was suffering from ADHD that her special needs would place too great a burden on her colleagues and the Office clients demanded great spontaneity, flexibility and tolerance ...
A bill on the legal status of temporary agency workers in connection with stationing by an employment agency etc. has been adopted, and the act will thus become reality effective as of 1 July 2013. The act has implemented the Temporary Agency Workers Directive which serves to protect temporary agency workers and improve the quality of the work of temporary agency workers by introducing a principle of equal treatment between termporary agency workers and the user companies' own employees ...
In the recent case of PPG Holdings BV, the Court of Justice of the European Union (CJEU) held that employers with defined benefit pension schemes established as separate legal entities can reclaim VAT charged on administration and investment management services provided to the scheme in certain circumstances. PPG had a DB scheme established as a separate legal entity ...
Effective July 31, 2013 the Federal Government announced new rules relating to the temporary foreign worker program. It has advised that the changes are being made to ensure that Canadians are given the first chance at available jobs. The changes include the following: 1. Employers must now pay a processing fee for a Labour Market Opinion (“LMO”) of $275 for each position requested. This is estimated to cover the cost of the LMO ...
Third party insurers are not entitled to enforce an insured’s defense, indemnification or insurance rights in a master services agreement (“MSA”) according to a three-judge panel of the Fifth Circuit Court of Appeals in an opinion issued on July 5. See Duval v. Northern Assurance Company of America, __ F.3d __, 2013 WL 3367483 (5th Cir. July 5, 2013) ...
Not for the first time the fashion industry is under fire for its recruitment policies. Could requiring staff to have a certain 'look' be the next form of discrimination? It was reported last week that Abercrombie & Fitch, the US clothing retailer is being investigated by the French human rights watchdog over claims that it hires only good-looking staff ...
The pre-hiring process is a key step to the viability of the employer‑employee relationship. Both the employer and the applicant must not underestimate the importance of this process which establishes the basis of their contractual relationship ...
From today, 29 July 2013, the following provisions will come into force under the Enterprise and Regulatory Reform Act: • Renaming of compromise agreements as "settlement agreements". This change will be accompanied by new rules on pre-termination negotiations, which are to be finalised later this year ...
In the last few years, many multinationals are implementing in their organizations so-called “Bring Your Own Device” (BYOD) policies. What is “BYOD”? It is a new trend in the management of technological infrastructure within companies where employees bring their own devices to the workplace, thereby reducing the number of devices that companies have to provide to employees, with the consequent reduction in costs ...
