Employment Law

A Tribunal recently ruled that payments made for work into a third-party trust constitute immediate employment earnings. This decision effectively precludes employers from using loan-based structures to obfuscate remuneration.

Mr. Jack was employed by an offshore company based in the Isle of Man while living and working in the UK. Under this arrangement, the fees paid for Mr. Jack’s services were split into a modest basic salary and an employee benefit trust (EBT), which would then advance these funds to Mr. Jack in the form of interest-free loans. Because these payments were categorised as loans rather than salary, they were not initially reported as taxable employment income.

Following an enquiry into Mr. Jack’s self-assessment return, HMRC issued a closure notice concluding that the £48,034 transferred to the EBT actually constituted “redirected earnings” and was, therefore, taxable as employment income under Section 62 of the Income Tax (Earnings and Pensions) Act (ITEPA) 2003. Mr. Jack appealed, arguing that a significant portion of the funds should be exempt from tax since he had repaid approximately £23,479 of those loans in April 2011.

The Tribunal upheld HMRC’s closure notice and applied the Supreme Court’s decision in RFC 2012 plc. The Judge held that, when money was paid into the EBT for work done by Mr. Jack, it effectively became taxable employment income at that exact juncture as “redirected” earnings. Mr. Jack’s argument that he had “fixed” the tax issue by repaying the loans was also rejected, as the tax charge arose on the transfer to the EBT, and anything that happened to the money afterwards did not affect the tax already owed for the 2010/11 tax year.

This ruling confirms that the legal characterisation of a relationship or a payment in a contract is secondary to the reality of the work performed. Care must be taken when creating structures to minimise tax burden and maximise profits, as the full amount transferred to a trust could be seen as ‘earnings’. Based on the Rangers case, if money is paid in return for services, it constitutes remuneration. On the other side of the coin, if a court views a loan as salary, it may also come to view the recipient as a worker who is entitled to full statutory rights.

The High Court recently ruled on the interpretation and enforceability of “discretionary” bonus provisions in employment contracts. Mr. Gagliardi brought a breach of employment contract claim against a former hedge fund which had contracted him as a senior portfolio manager. The contract in question included a salary, a sign-on payment, a new-issue bonus, and a discretionary bonus based on profitable revenues. Mr. Gagliardi was specifically recruited by the CEO to expand into the US market owing to his expertise in block trading and his valuable relationships with major US banks. The hedge fund’s primary goal was to secure the benefit of these relationships and scale its business quickly, with the CEO tacitly acknowledging that they were essentially “buying his relationships,” hiring Mr. Gagliardi on a “trade and get paid” basis.

Upon joining, Mr. Gagliardi immediately began actively trading in the A1 share class without completing his onboarding process or receiving formal risk limits, leading to conflict with the CIO and risk manager. However, the CEO consistently prioritised Mr. Gagliardi’s trading activity over internal procedure, despite him often exceeding specified trading limits, frequently granting retrospective approval. Mr. Gagliardi’s lack of attention to compliance was also overlooked, as the CEO continued to prioritise profitability. However, a market-wide regulatory inquiry into block trading led to subpoenas to the claimant and the hedge fund by early 2022, prompting the fund to withhold payment of his discretionary bonus. This led the claimant to sue the hedge fund for breach of contract.

The High Court ruled in favour of Mr. Gagliardi, awarding him $5.385m in damages (plus interest), determining that his former hedge fund had indeed breached its contractual obligations in failing to award him any discretionary bonus for his trading activities in 2021. The Judge ruled that the hedge fund’s contractual discretion (governed by Delaware law) was neither broad nor unfettered and, as such, was subject to prescribed contractual criteria.

Despite the use of the term “discretionary,” the High Court has affirmed the principle that an employer’s discretion is not absolute where a bonus is tied to measurable performance criteria such as revenue contributions and profits. This ruling emphasises that, where an employee delivers exceptional financial performance, an employer cannot arbitrarily or irrationally refuse to pay a bonus, as this would constitute a breach of contract, irrespective of any allegations of minor breaches, misconduct or poor attitude that did not reach the threshold for disciplinary action or termination over the period in question. Employers should thus take care over phraseology when structuring discretionary bonuses into contracts.

The Court of Appeal has ruled that the initiation of legal or arbitral proceedings by an employer against a ‘whistleblower’ who has made a protected disclosure constitutes an actionable detriment under the Employment Rights Act (ERA) 1996, effectively overriding the defence of Judicial Proceedings Immunity, or JPI. 

In November 2021, the claimant, initiated Employment Tribunal proceedings against his former employer for post-employment detriment as a consequence of whistleblowing. The claimant, who had worked at his employers’ London residence until his resignation in 2019, alleged that he made protected disclosures regarding instances of verbal and physical abuse by his employer directed at members of staff.

The respondent’s defence was that the claimant had made the allegations for financial gain rather than for altruistic reasons, had breached a confidentiality and independent consulting agreement under ICC Rules, and was effectively running an “extortion scheme” by making “false claims”.  

The Court allowed the appeal based on the protection of whistleblowers by the ERA 1996, concluding that this statutory protection overrides the common law doctrine of JPI. In the Court’s view, allowing an employer to use litigation as a shield against a whistleblowing claim would render the legislation meaningless, as Section 47B(1) of the ERA provides a right not to be subjected to “any detriment by any act” by an employer for making a protected disclosure, including any perceived breach of confidence, as such a mechanism would effectively enable employers to escape liability by suing whistleblowers. Moreover, under Section 43J of the ERA, any confidentiality agreement that precludes a protected disclosure is deemed to be void.  

Thus, the initiation of legal or arbitral proceedings by an employer against a worker, when executed on the ground of a protected disclosure, is actionable as a detriment under Section 47B of the ERA. This ruling effectively prevents employers from using litigation as a de facto penalty or “punitive tool” to harass or financially pressure a whistleblower. The Court has now established that this protection is not limited to threats, but also extends to the act of commencing proceedings. Employers should note that they cannot simply bypass Section 43J by enforcing a confidentiality clause through arbitration proceedings. 

A recent ruling has increased the scope of statutory protection for whistleblowers to include covered detriments against co-workers under the Employment Rights Act 1996. A Mr. Rice was dismissed by his company owner on the grounds of redundancy in February 2021. Mr. Rice asserted that his dismissal was automatically unfair, given that it was motivated by his protected disclosures. He subsequently applied to amend his claim to include a detriment claim against his owner-employer, alleging that his dismissal was a detriment in contravention of Section 47B of the Act. The core issue arose when he sought to amend his claim to include an additional complaint, specifically that his dismissal constituted a detriment inflicted by a co-worker, for which the owner was vicariously liable under the 1996 Act.

This principle states that the exclusion (Section 47B) only bars a direct detriment claim against the employer for its own act of dismissal. However, it does not bar a claim against a co-worker (under S. 47B(1A)) for the detriment of dismissal. Consequently, if a co-worker is liable for the act of dismissal as a detriment, the employer automatically becomes vicariously liable for that act under Section 47B(1B). This effectively allows the employee to bring a detriment claim against the employer for the act of dismissal itself. 

The ruling creates a crucial pathway through which employees may obtain a more comprehensive remedy for the act of dismissal, no longer solely restricting whistleblowers to a claim of unfair dismissal. This significantly increases the potential value of any award for damages, particularly in distressing cases.

Employees can now pursue the individual co-worker who carried out the dismissal – in this case, the owner of the firm. This is an important concession, especially where a company becomes insolvent, as the personal liability remains. Employers should be wary of their conduct toward whistleblowers, as they may find themselves personally liable for their words and deeds.

Many modern companies insist on the inclusion of restrictive covenants to limit the freedoms of employees upon the termination of their contracts. However, the High Court recently reinforced the stringent legal principles governing the enforceability of such restrictive covenants, suggesting that they often overstep.

A young man had been working as a salesperson for a UK subsidiary of an American company that sells made-to-measure suits and shirts manufactured in the USA. His original contract included restrictive covenants limited to 6 months. However, the contract was changed in 2022 to double the duration of the non-compete covenant to 12 months and remove the previous reliefs, significantly widening their scope. The employee asserted that he was not informed of these changes, and the claimant failed to produce any evidence to justify the widening of the scope of the limitations or the doubling of their duration.

The employee’s initial performance was strong, although following a conduct issue in January 2025, he was subjected to an addendum requiring humiliating and intrusive conditions, including weekly “counselling”, a ban from earned trips, and exclusion from leadership roles. The ex-employee had also raised product quality concerns, which he felt were ignored, and found the work culture ‘toxic’ and the disciplinary action both unfair and intrusive. As a consequence, he resigned in frustration in 2025, only to be subjected to an “insensitive, verging on brutal” retaliation. Within two days, the HR manager had cut off all IT access, threatened an investigation, and banned the defendant from the office. A day later, on Sunday, the claimant’s lawyers hand-delivered a threatening letter to the defendant’s home seeking to enforce a 12-month restrictive covenant. Moreover, there were claims that the defendant had breached his contractual duties, including running down his sales in the months prior to his resignation, and soliciting staff.

The High Court dismissed the claim for breach of contract and ruled that the 12-month restrictive covenant was unenforceable, as it far exceeded what was reasonably necessary to protect the claimant’s business. Moreover, the Court found the decline in performance to be stress-related and due to his inevitable demotivation.

This case reinforces the longstanding principle that courts will not uphold a covenant if it extends beyond what is strictly necessary to protect an employer’s legitimate business interests, which are typically delimited to confidential information and customer goodwill. The case serves as a warning in relation to the risks employers run when their conduct is perceived to be heavy-handed, humiliating, or toxic, particularly during disciplinary or exit procedures. HR departments should be wary of engaging in overtly humiliating or heavy-handed disciplinary rituals, as these may be viewed as a form of brutality.

The claimant began employment as a Contracts Coordinator on 23 January 2023, subject to a contractual 6-month probationary period, one which required 5 weeks’ notice for termination. The contract included a garden leave clause, but no clause permitting Payment in Lieu of Notice (PILON). 

Disputes soon arose over his work patterns and behaviour, and by 22 February 2023, the claimant had emailed the respondent detailing an irrevocable breakdown in trust and confidence. On 3 March 2023, HR obtained authorisation to dismiss the claimant, citing inflexibility, divergent values, negative communications, and uncooperative behaviour.

The decision to terminate his employment had in fact already been made, even though a “Formal Probation Assessment Meeting” had been scheduled for 15 March, on which date he was dismissed with immediate effect and paid 5 weeks’ notice monies. On 24 March 2023, he appealed the dismissal while seeking an assurance that he would not be reinstated, affirming that neither party wished the employment relationship to continue. The employment tribunal found that the claimant had not been wrongfully dismissed, despite accepting that the respondent had breached the contract by instituting a PILON.

The appeal tribunal found that the first tribunal had erred in law by failing to find that the claimant was wrongfully dismissed, as the employment contract did not contain a PILON clause and the employer’s action in dismissing the claimant with immediate effect and simply handing over the notice pay constituted a breach of contract. However, it upheld the earlier decision not to award compensation after applying established common law principles for assessing damages, which assume that the employer would have terminated the contract in the least burdensome way that was lawfully available. The appeal tribunal rejected the claimant’s argument that damages should be subject to the “Gunton extension” to cover the full 6-month probation period. As the issue was a fundamental breakdown of the employment relationship, the employer was entitled to rely on the simpler, contractual 5-week notice clause, rendering the lengthier procedural steps irrelevant in the calculation of damages.

This case offers a stark reminder that, if a company wishes to dismiss an employee with immediate effect and simply pay them in lieu of notice, then the contract must explicitly include a PILON clause, or any immediate dismissal (even with payment) is effectively a breach of contract. While no financial damages were awarded in this specific instance, it nonetheless positions an employer on the wrong side of the law and can complicate any prospective litigation.

The government’s latest advice, as confirmed in the COVID-19 Secure guidelines for different types of workplaces, is that office workers who can work effectively from home should do so over the winter. However, anyone else who cannot work from home should go to their place of work, but employers should consult with their staff to determine who needs to come into the workplace safely taking account of the worker’s journey, caring responsibilities, protected characteristics and other individual circumstances. Extra consideration should be given to those workers at higher risk. 

In addition to this change of position for office workers, a raft of new coronavirus-related legislative measures have now taken effect in England, some of which directly impact on the employment relationship (with slightly different restrictions applying in Scotland, Wales and Northern Ireland). These include that:

• Staff in a wide range of hospitality and retail venues are now required to wear face coverings when working in a part of the premises that is open to the public, and where they come or are likely to come within close contact of any member of the public – but those who are already exempt from the existing face covering obligations, such as because of an underlying health condition, continue to be exempt from this new obligation. However, the offence of failing to wear a face covering when legally obliged to do so is committed by the worker, not by their employer, and so it is the worker’s responsibility to pay the relevant fine. That said, it is an offence for an employer to prevent, or to seek to prevent, a worker who is subject to the requirement to wear a face covering from wearing a face covering, and therefore it is recommended that employers mandate the wearing of face coverings where required
• A wider range of leisure and entertainment venues, services provided in community centres and close contact services must now comply with the COVID-19 Secure requirements as a legal obligation, with fines of up to £10,000 for repeated breaches
• Employers must not knowingly allow or permit a worker, or agency worker, who is being required to self-isolate to attend their workplace, or any other place (except the place where they are required to self-isolate) for any purpose connected to their employment during their self-isolation period. Breach of this provision will result in a fine starting at £1,000 and increasing to £10,000 for repeated breaches. The worker is also now obliged to inform their employer, as soon as reasonably practicable, of the requirement on them to self-isolate, and the start and end dates of their self-isolation period, in circumstances where they would otherwise be required to attend work.

Acas, the CBI and the TUC have issued a joint statement to employers on best practice for handling redundancy situations caused by the coronavirus pandemic. The statement recognises that employers may need to make redundancies in order to survive, but it urges them to exhaust all possible alternatives before doing so and to carry out effective consultation with workers and trade unions. 

The statement then calls on all employers considering redundancies to work with their workers and trade unions and get the process right by following these five guiding principles:

1. Do it openly: there are rules for collective redundancies (those involving 20 or more staff), but whatever the scale, the sooner people understand the situation, the better for everyone.
2. Do it thoroughly: to understand what's happening, people need information and guidance, and staff representatives need proper training.
3. Do it genuinely: consultation means hearing people's views before making a decision, so employers need to be open to alternatives put forward by individuals or unions and should always give feedback.
4. Do it fairly: all aspects of the redundancy procedure should be conducted fairly and without any form of discrimination.
5. Do it with dignity: losing your job has a human as a well as a business cost; the way an employer lets people go says a lot about the organisation's values. Employers should therefore think about how they will handle the conversation and whether it will take place face-to-face or remotely and should remember that they may want to rehire the same person in the future.

The government has published detailed new guidance for employers on the regulations and legal obligations relating to running internal workplace coronavirus (COVID-19) testing programmes, i.e. those which are outside of the NHS Test and Trace service. The guidance covers:

• legislation, regulations and best practice surrounding the testing process, including compliance with the GDPR
• selecting and procuring test kits
• the difference between virus and antibody testing
• what the test results mean
• next steps after a positive or negative test, including communicating results to staff and what an employer can and cannot do with a result
• contact tracing.

The guidance emphasises that the NHS Test and Trace service is for those who are displaying symptoms of coronavirus or who have been advised to take a test by a medical practitioner or public service, so employers must not advise any staff without symptoms to get a test from the NHS Test and Trace service. However, they may offer alternative private provision in accordance with this guidance.

A new advice line for employers who are supporting employees experiencing or at risk of domestic abuse has been launched by domestic abuse charity Hestia. The Everyone’s Business Advice Line, which is being funded by the Home Office, will be a point of contact for employers, advising them on how to approach disclosures of domestic abuse by their employees, particularly in light of coronavirus (COVID-19). With more people working remotely from home due to the pandemic, cases of domestic abuse are rising. The advice line will also assist employers in signposting staff to local specialist domestic abuse services.

The Everyone’s Business Advice Line can be contacted on 07770 480437 or email adviceline.EB@hestia.org and the service is open between 10am and 3pm Monday to Friday. Employers can also download an assets pack from the Hestia website, comprising an information brochure, flyer, infographic and social media graphics.

One in four women and one in six men will experience domestic abuse at some point in their lifetime.