Articles by Clare Gilroy-Scott

Dismissal for Misconduct: To what extent can past conduct be taken into account?

When carrying out an investigation into alleged misconduct by an employee, the temptation may be to find as much evidence as possible. A recent case in the Employment Appeal Tribunal (EAT) has addressed the question of whether an investigation can actually be too thorough. How “fairness” is tested “The Burchell Test”, as set down in […]


IR35 continues to be taxing

This article was first published in Recruitment International. On 6th April 2017 new IR35 rules come into force applying to payments to PSC workers who provide personal service to a “public sector employer” generating significant problems for recruitment businesses involved in the supply process. Problem areas The legislation (still in draft form at the time […]

Mind the Gap: Are you ready for Gender Pay Reporting?

This article was first published in Recruitment International. Disparity between male and female average pay continues to dominate the news, with evidence of the gender pay gap widening for women in their 30s and 40s in particular. Dubbed “Equal Pay Day”, 9 November 2016 marked the date from which women were effectively working for free […]


Gig Economy Working: sham self-employment?

This article first appeared in Recruitment International. Gig economy working – used to describe the trend towards workers taking work on a “gig” basis, on flexible, generally short-term assignments, in contrast to a traditional employment model – is on the rise but what are the employment law implications? Uber, who provide the popular transport app, […]

Introduction fees: the recruiters’ battleground

This article was first published by Recruitment Agency Now. To avoid dispute, the question of when an introduction fee is payable in respect of the introduction of staff to a client should be set out clearly in agreed terms, both parties acting in accordance with such intention to create legal relations. These are basic contractual […]


I am considering taking a job as a delivery driver – what are my rights in the gig economy?

This article was first published by This is Money. Over the past five years, the UK has seen the rise of a new way of working called the ‘gig economy,’ fuelled by the rise of mobile apps and on-demand services.  Under this system, workers are paid for the specific jobs – ‘gigs’ – they undertake […]

Wearable fitness trackers in the workplace: surveillance by fitbit?

This article first appeared in Personnel Today. Many people sport fitness tracking devices and/or smartwatches – forms of wearable technology which not long ago seemed futuristic but are now familiar accessories. These developed from wearable medical technology – devices worn on the body which are able to assess and record detailed physiological data about the wearer […]


Giving your staff wearable tech? Here’s how to stay on the right side of the law

This article first appeared in City A.M.. Wearable technology, such as fitness tracking devices, is increasingly being introduced into the workplace as part of “corporate wellness” schemes. It is believed that around 202m wearable devices were given out by employers in 2016 to assist their employees with managing personal health. Corporate what? These schemes can […]

No rest for the workers?

This article first appeared in Recruitment International. Who should bear the risk when there’s no provision within an employment relationship for exercising the right to take holiday – the employer or the worker?  That’s the question that the Attorney General of the Court of Justice of the European Union recently considered, making a clear decision […]


So after all the court cases, where do employers stand on holiday pay?

This article first appeared in HR news. Employment tribunals continue to consider a number of cases concerning the inclusion of overtime, commission and other variable payments in holiday pay, as well as the entitlement to carry-over leave as a result of long-term sickness or where a worker has otherwise been unable to take it. Unfortunately […]

Tribunal fees ruled unlawful: How will this impact gig economy firms?

This article first appeared in UKTN. Following a four-year fight by UNISON, the Supreme Court has allowed their appeal and held that employment tribunal fees are unlawful. Dave Prentis, UNISON general secretary, said: “The government is not above the law … when ministers introduced fees they were … showing little concern for employees seeking justice […]


Holiday pay: What employers need to know

This article first appeared in UKTN. What is holiday pay? Unfortunately despite many tribunal and court decisions on the topic of holiday pay, there is still uncertainly as to what should be included in holiday pay, for example in terms of commission and bonus payments as well as carry-over entitlements. Employers who do not want to fall foul of the requirements or face […]

In the courts: the worker and the 13 years of untaken holiday

This article first appeared in The Lawyer 2b. On 8 June 2017, the Advocate-General of the European Court delivered his Opinion in a case concerning a UK worker’s 13 year back-dated holiday pay claim: King v The Sash Window Workshop Ltd. Mr King worked for 13 years for The Sash Window Workshop Ltd (TSWW) and […]


Data subject access requests: Common employer queries

This article first appeared in Personnel Today. How should employers deal with data subject access requests and how will the process change for employers when the General Data Protection Regulation (GDPR) comes into force in May 2018? Clare Gilroy-Scott, a partner at Goodman Derrick LLP, answers some common questions about data subject access requests. Data […]

The Uber Decision: Workers’ rights in the gig economy under scrutiny

Described by the tribunal as a “modern business phenomenon”, Uber has around 40,000 drivers in the UK, with 30,000 drivers operating in the London area and around two million passengers registered to use its service there. In a judgment handed down on 28 October, an employment tribunal has held that Uber drivers are “workers” and […]


Holiday pay and commission: Lock v British Gas

The courts have once again considered the question of what payments should be included in holiday pay – should this be basic pay only or should workers receive a payment that reflects the overtime and/or commission payments which they would ordinarily receive? Having gone to the European Court, who held in 2014 that holiday pay […]

Whistleblowing: can an agency worker bring a whistleblowing claim against an end-user?

The tripartite nature of the agency worker’s relationship with the employment business and the end-user often makes it confusing for an agency worker to establish the correct party against whom to bring a claim. “Workers” and not just employees are protected from detriment as a result of having blown the whistle (s.43A Employment Rights Act 1996 […]


Vexatious job applicants: to what extent are they protected from discrimination?

It will be a relief to organisations that the European Court has held that a job applicant, who only made an application for a role in order to will compensation, is not protected from discrimination (Kratzer v R+V Allgemeine Versicherung AG). The Equal Treatment Directive’s purpose is to provide protection to those actually seeking employment. The […]

Holiday pay & EU law: King v The Sash Window Workshop Ltd

The Court of Appeal has made a reference to the European Court of Justice (CJEU) in a major area of importance concerning holiday pay under the Working Time Regulations 1998 (WTR). On 9th February, the Court of Appeal considered the question of accrued but untaken holiday pay in the case, King v The Sash Window […]


What’s new or on the horizon?

The following is a summary of new legislation and what is coming up to ensure that you remain aware of developments that could impact your business going forward. Termination payments Currently, an employer is able to make an ex-gratia payment of up to £30,000 on termination of an employee’s employment without deductions for tax or […]

Job applicants: to what extent are they protected from discrimination?

It will be a relief to organisations that the European Court has held that a job applicant, who only made an application for a role in order to will compensation, is not protected from discrimination (Kratzer v R+V Allgemeine Versicherung AG). The Equal Treatment Directive’s purpose is to provide protection to those actually seeking employment. […]


Holiday pay & EU law: are the working time regulations are compatible with EU law?

The Court of Appeal has made a reference to the European Court of Justice (CJEU) in a major area of importance concerning holiday pay under the Working Time Regulations 1998 (WTR). On 9th February, the Court of Appeal considered the question of accrued but untaken holiday pay in the case, King v The Sash Window […]

Holiday pay cases: where are we now?

The Employment tribunals continue to consider a number of cases concerning the inclusion of overtime and commission payments in holiday pay, as well as the entitlement to carried over leave as a result of long-term sickness or where a worker has otherwise been unable to take it. Are we any closer to a resolution? Unfortunately the position […]


Regulation of the recruitment sector: changes from 8 May 2016

Much anticipated reform of the regulation of the recruitment sector comes into force on 8 May 2016 with the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016 which were published this week. Much of the current regulation of the recruitment sector is set out in the 2003 Conduct of Employment Agencies and Employment […]

Top 5 New Year’s Resolutions for Recruiters/Staffing businesses

The festive season can be a busy time in HR and recruitment, with many employers spending the final month of the calendar year looking ahead at staffing proposals for 2016 as well as looking at headcount and temporary cover over the Christmas period.   While many of you may want to spend January in hibernation it […]


Festive fall-outs: a seasonal headache for employers

Even the best laid plans in preparation for workplace functions may not work out and employers can be left having to address the fall-outs formally. Two recent tribunal cases have addressed the inconsistent treatment of employees following work parties which involved the wrong kind of “punch” altogether. Other than giving us an unprecedented opportunity to include […]

Scope of Equality Act widened to cover corporate claimants

The Employment Appeal Tribunal (EAT) has held that a limited company that was a member of an LLP could bring a claim alleging the LLP had directly discriminated against it based on the age of its principal shareholder in the case of EAD Solicitors LLP and Others v Abrams (UKEAT/0054/15). Previously only individuals were considered […]


Cases on the horizon: agency workers

Readers may recall our earlier report on the case of Moran and others v Ideal Cleaning Services Ltd which dealt with the scope of the Agency Workers Regulations 2010 (the AWR). The question under consideration was the meaning of “temporary” in regulation 3 of the AWR which states that an “agency worker” is a person “supplied […]

Agency Worker Rights: How far do employers have to go in relation to agency workers and permanent vacancies?

Organisations using temporary workers supplied through temporary work agencies will no doubt be familiar with the requirements of the Agency Workers Regulations 2010 (AWR).  As well as providing for equal treatment for agency workers as against comparable permanent employees in respect of certain basic working and employment conditions, the AWR also gave agency workers the […]


Hiring Agency Staff during Strike Action: Consultation Announced

Recruitment sector businesses are currently prohibited from providing agency workers to organisations whose employees are taking part in strike action.  However, this may all change with a Consultation announced by the government on 15 July 2015. The aim is to ensure that strikes are the result of a “clear, democratic decision” and to tackle what […]

Tribunal confirms commission element of holiday pay

Many businesses will be aware of the case of Lock v British Gas which concerned a salesman whose earnings were largely made up of commission. In May 2014, the European Court held that Mr Lock’s holiday pay ought to include an element of commission. This was not simply the commission that Mr Lock had earned […]


When is a shareholder also an employee and entitled to pay?

A shareholder of a company may also have employment rights, including the right to be paid, when services are carried out for the company.  This was confirmed by the Court of Appeal in its judgment of 5th February 2015 in the case of Stack v Ajar-Tec Ltd.  This is an noteworthy case for anyone interested […]

Regulation of the Recruitment Sector

2013 saw a period of consultation on the government’s proposals to simplify and streamline the regulation of the recruitment sector, much of which is currently set out in the 2003 Conduct of Employment Agencies and Employment Businesses Regulations, with which those in the sector should be familiar.  The government stated that the rules should be […]


Agency Workers Regulations

It has been over three years since Vince Cable’s announcement that the government was committed to reviewing the Agency Workers Regulations (AWRs), despite a proposed review period of 18 months.  The expressed aim of the review is to “simplify and streamline the UK recruitment sector…scrapping unnecessary rules and making the remaining ones more comprehensive to […]

What’s in store for 2015?

An overview of employment law affecting the recruitment sector January 2015 Ban on “overseas only” recruitment The ban on “overseas only” recruitment by employment agencies took effect on 5th January.  Employment agencies and employment businesses are now restricted from advertising vacancies for roles based in Great Britain in another EEA country, without also advertising the […]


Is an agency worker who is permanently assigned to an end-user covered by the AWRs?

No, according to the EAT, in the case of a group of agency workers who were assigned to one hirer for periods ranging from between 6 and 25 years. The Agency Workers Regulations 2010 define “agency worker” as “an individual who is supplied by a temporary work agency to work temporarily for and under the […]

Is it correct that a contract can only be implied between an individual worker and an end-user where it is necessary to do so?

It is generally accepted that, where a worker is supplied to work for an end-user through a recruitment business, a contract can only be implied between an individual and the end-user where it is necessary to do so in order to give effect to the reality of the relationship (James v Greenwich LBC). The concept […]


Are post-termination restrictions on a recruitment consultant enforceable where information is widely available on social media?

The High Court has recently held that 6 month non-dealing and non-solicitation post-termination restrictions were enforceable by the recruitment business against a former employee as the recruitment business had a legitimate business interest to protect, even though much of the information was in the public domain (East England Schools CIC (trading as 4myschools) v Palmer […]

Should Holiday Pay Calculation Include Sales-related Commission in Addition to Basic Pay?

————————————————– Do you want to stay on top of the implications of this important ruling? Please click here to register for bulletins and to complete our very short survey. ————————————————– Yes, was the view of the European Court of Justice (ECJ) in Lock v British Gas Trading Limited last week. This decision is consistent with the earlier opinion […]


A Review of Employment Law Reform in 2013 and 2014

As with 2013, there will be no rest for employment law advisers, employers and HR practitioners in 2014, with further legislative change on the agenda.  Many of the changes hail from the government’s Red Tape Challenge following its publication of the report “Progress on Reform” on 14 March 2013, which detailed the intended timetable for […]