A recent EAT decision has confirmed that an employer and employee can agree a date on which the employment of the employee would be deemed to have terminated. Accordingly, a compromise agreement which was otherwise invalid, nevertheless prevented a claim of unfair dismissal as the employer could rely on the somewhat artificial termination date stated in the agreement which meant the employee was out of time for bringing his claim. For the purposes of the Disability Discrimination Act 1995, the correct comparator in the case of a person who is dismissed because he has been off work for a lengthy period of time is someone who has not been off work. It will, however, be important for the employer to show that he needed somebody to perform the role and that the disabled employee was no longer capable of doing so. Voluntary workers, those under 18, those up to the age of 26 who are in the first year of apprenticeship and students on placements are all excluded.
Pay is gross and includes commission, bonuses and tips, if they are paid through the payroll.
The employer must keep sufficient records to be able to determine the information for the relevant pay reference period from a single document and failure to do so is an offence. The right is incorporated into the Sex Discrimination Act 1975 at S.2A and the Government has issued a Guide to employers if anyone is concerned that it may have employees in this category. Also there are claims arising for breach of copyright and the danger of employees entering into binding contracts with third parties without the Company authority. In one case, an employee worked in an office where much of her male colleagues' time was spent pouring over porn. She felt so uncomfortable in this environment that she eventually resigned.