Education Bulletin: Spring 2024

Settlement agreement: settling unknown future claims

The Inner House of the Court of Session in Scotland has recently ruled that it is possible to settle unknown future statutory employment claims in a settlement agreement. It had been thought that the statutory requirement that a settlement agreement must relate to the particular complaint(s) being settled meant it was not possible to settle a statutory employment claim that had not yet arisen. The Court disagreed, ruling that all that needs to be considered is whether the particular complaint is covered by the terms of the settlement agreement. Therefore, with careful drafting, schools should be able to use a settlement agreement to settle unknown future statutory employment claims, if they wish to do so.

Please get in touch if you would like us to review your settlement agreement.

Click here for further information on the case of Bathgate v Technip Singapore PTE Ltd.

Constructive dismissal: relevance of delay

Where an employer has committed a repudiatory breach of an employee’s employment contract, the employee can choose to resign and claim constructive dismissal. An employee who waits before resigning must be careful not to affirm the contract in the meantime, as this will mean they have waived the employer’s breach and so can no longer claim constructive dismissed.

The Employment Appeal Tribunal has considered the relevance of delay in resigning and confirmed that delay alone does not signify that an employee has affirmed their contract. What is relevant is whether the employee has done anything between the employer’s breach and resigning which signifies that they are affirming the contract. Where a lecturer had waited until September to resign, following the University’s repudiatory breach at the end of June, relevant factors included whether he had done any significant work in that period (bearing in mind this coincided with the summer holidays) and the fact that he was off sick for some of the period.

Schools seeking to argue that an employee has lost the right to claim constructive dismissal will not be able to rely on delay alone in the employee resigning. Instead they need to look at what the employee has done in the meantime which signifies affirmation, such as continuing to work. Remaining employed during school holidays when no work is performed or during a period of sickness absence may not be sufficient.

Click here for further information on the case of Leaney v Loughborough University

Holiday rights for part-year and irregular hours workers

Holiday rights for part-year and irregular hours workers are changing. For holiday years beginning on or after 6 April 2024, their holiday entitlement must be calculated in hours at the rate of 12.07% of hours worked, subject to a maximum of 28 days’ holiday. Schools can then either pay holiday pay when holiday is taken or they can choose to pay rolled-up holiday pay, a practice which is now permitted, having been unlawful since 2006. These changes are significant and we recommend that schools conduct a review of their holiday arrangements to identify their irregular hours and part-year workers and to ensure they are complying with the new law. Employment contracts and holiday policies are also likely to need updating to reflect these changes.

Please get in touch if you would like help with reviewing holiday arrangements for your staff or with making the necessary changes to employment contracts and holiday policies.

Click here for further information.

April employment law changes

A number of employment law changes came into force in April. Along with the usual increases to compensation limits and National Minimum Wage rates and the changes to holiday rights outlined above, this year sees the following additional changes:

introduction of the right to one week’s unpaid carer’s leave
changes to paternity leave to make it more flexible
changes to the right to request flexible working and a new Acas Code of Practice on flexible working, and
extension of the right to be offered a suitable alternative vacancy in a redundancy situation.

Click here for further information.

More detailed information on these changes can be also found in our Looking Ahead to 2024 guide.