The Regulations prevent an Employment Tribunal (ET) considering deductions which were made more than 2 years before the unlawful deductions claim was brought.However, to ensure fairness and allow workers a sufficient transitional period, this only takes effect for claims presented to an ET on or after 1 July 2015.Documenting a transaction which has not yet happened In other cases, it may not be possible to say that the relevant transaction has already taken place – but you may still want to achieve a ‘backdated’ effect.In this situation, it may be possible to put in place an agreement now, with a historic ‘effective date’.
There are some cases where this approach is not possible.This is one of the most common issues which comes up in the context of group reorganisations or intercompany agreements. Giving a document a date which is earlier than the date when it was actually signed, would almost certainly constitute fraud.Although it may have been intended to put in place a new arrangement by a particular date – often a year end – that date may now have passed. Obviously the ideal position is to put in place the legal documents in advance. Well, it depends on what was transferred, and whether it can be said that the relevant transaction has already happened.As from that date, customers may have been invoiced by the transferee, employees may have been paid by the transferee, and accounting entries may have been made to reflect the purchase price payable for the assets.Together, these factors may indicate that the beneficial interest in the relevant assets has passed from a legal point of view.
The Regulations would limit claims for underpayments of the National Minimum Wage but the Government notes that there are other ways of enforcing this right, such as through HMRC.