Employment law update 2016, Manchester
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These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR managers and HR directors. At these events we present an overview of what we consider to be the most significant cases decided in 2015, and what they teach us about managing your workforce - together with our practical tips. We also talk about what is coming up in 2016, and how you can get ready for what will be another busy year in employment law. We will be covering the following topics: • working time/travel time • social media update • discrimination and whistleblowing update • Modern Slavery Act • privacy in the workplace • the latest on tribunal fees • what's coming up in 2016. https://www.brownejacobson.com/sectors-and-services/services/employment
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Employment law update 2016, Manchester
- 1. Annual employment law update February 2016, Manchester
- 2. Today’s session 1. TUPE Update 2. Collective redundancies 3. Working Time Regulations 1998 4. Changing employment contracts 5. Right to be accompanied 6. Small Business, Enterprise and Employment Act 2015 7. Parental leave 8. Privacy in the workplace 9. Social media update 10. Whistleblowing 11. Discrimination 12. Modern Slavery Act 2015 13. Apprenticeships 14. Tribunal fees update 15. Key updates for 2016
- 4. Brief Recap – what is TUPE? TUPE applies to a "relevant transfer", which means either or both of the following: • Business Transfer - A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity. This involves three elements: – an economic entity; – a transfer of that economic entity; and – the economic entity retaining its identity following the transfer. • Service provision change - A client engaging a contractor to do work on its behalf, reassigning such a contract or bringing the work "in-house". This can, therefore, encompass an initial (or first generation) outsourcing, a subsequent (or second generation) outsourcing or an in- sourcing. However, the supply of goods and "one-off buying-in of services" are excluded. Activities carried on after a change in service provider must be "fundamentally or essentially the same" as those carried on before it.
- 5. What is a service provision change? 3 conditions must be met: • Organised grouping of resources which must have, as its principal purpose, the provision of services to a particular client • Not a single specific or task of a short term duration • Not wholly or mainly the supply of goods
- 6. 2014 Regs: service provision change Transfers on or after 31 January 2014: • Activities: “fundamentally or essentially the same” • Change reflects existing case law on the meaning of ‘activities’
- 7. TUPE – Key 2015 Cases Rynda (UK) Ltd v Rhijnsburger When attempting to establish whether a service provision change arises: • Identify the services provided • List the activities performed • Identify the employees carrying out those activates • Consider whether these employees form an organised grouping An organised grouping can be a single individual
- 8. TUPE – Key 2015 Cases Organised Grouping? Inex Home Improvements Ltd v Hodgkins & others • Inex - painting and decorating services • Nov & Dec 2013 – staff temporarily laid off • January 2014 – contract was awarded to another contractor • ET: not an “organised group” because the staff were laid-off • EAT disagreed • Despite temporary cessation of work staff still an organised group • Purpose, nature and length of cessation is relevant
- 9. TUPE – Key 2015 Cases Is the employee assigned to the organised grouping? BT Managed Services Ltd v Edwards • Mr Edwards permanently unable to return to work • Not assigned to organised grouping • Connection to business was administrative (entitlement to health insurance) • Distinguished between: long-term sick/maternity leave/ lay-off • Question of fact- the reason, nature and length of the cessation is relevant, as is the likelihood that the employee will return to work in the future.
- 10. TUPE – Key 2015 Cases Other cases of interest • Ottimo Property Services Ltd v Duncan - a service provision change can, in principle, involve a group of clients • Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) – instruction to a service provider to remove a particular employee did not, in itself, mean that employee is no longer assigned • ICTS UK Ltd v Mahdi and ors - Subsequent events may be relevant to whether a task was intended to be of "short-term duration"
- 11. TUPE – Summary • When attempting to establish whether an SPC arises: – Identify the services provided – List the activities performed - are they “fundamentally or essentially the same” – Identify the employees carrying out those activates – Consider whether these employees form an organised grouping • Is the employee assigned? • An organised grouping can be a single individual • Conversely, there can be more than one client in an SPC but the transferor should not be one of them • Where appropriate ensure agreements have clauses dealing with removal of employees, setting out the procedure and authority for such removal • Consider contractual indemnities
- 13. S.188 Trade Union and Labour Relations (Consolidation) Act 1992 • Directive is implemented into UK law by Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) • Collective redundancies will arise (and the information and consultation requirements will be triggered) where an employer is: “proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days” • Ongoing issue over what is meant by “establishment”
- 14. TULCRA Where an employer fails to comply with its collective consultation obligations, a complaint may be made to an employment tribunal, which can make a protective award of up to 90 days’ pay for each affected employee
- 15. USDAW v WW Realisation 1 Ltd • Thousands of people lost their jobs when Woolworths and Ethel Austin went into administration. • Should the consultation provision apply to employees at stores of less than 20 people? • ET said no – staff at establishments of less than 20 received no award
- 16. Decision appealed to EAT EAT held • UK failed to implement original Directive by including words “at one establishment” in s.188 TULRCA • Those words should be deleted • Outcome - those working in shops with fewer than 20 employees should have been collectively consulted with and would get protective award
- 17. Further appeal to Court of Appeal Court of Appeal referred a question to European Court of Justice (ECJ): Does the phrase ‘at least 20’ in the Directive refer to the number of dismissals a) across all or some of an employer’s establishments in which dismissals are effected within the 90 day period, or b) in each individual establishment?
- 18. ECJ answer • “Establishment” means the unit to which the workers made redundant are assigned • Case referred back to Court of Appeal for judgment but not likely to be favorable for employees • Watch this space…
- 19. 3. Working Time Regulations 1998 (WTR)
- 20. WTR - Topics a) Holiday pay calculations (commission and overtime) b) Relationship between sickness absence and annual leave entitlement c) Is travel working time for peripatetic (mobile) workers?
- 21. WTR - Overview • Derived from European legislation - Implements European Working Time Directive • Key rationale behind the Directive is protection of workers’ health through ensuring adequate rest periods are taken • Case law further developed in 2015
- 22. WTR Provisions – Holiday • Workers are entitled to statutory 4 weeks basic annual leave • The UK provides an additional 1.6 weeks statutory annual leave • A worker is entitled to be paid at the rate of a “week’s pay” in respect of each week of annual leave • ERA 1996 set out methods for calculating a week’s pay according to terms of remuneration package
- 23. a) Holiday Pay: Commission Lock v British Gas Trading Ltd • Proceedings for unlawful deduction of wages regarding impact of the non payment of commission payments when calculating holiday pay • The case was referred to ECJ which found commission payments should be taken into account • Some holiday pay cases remain stayed pending the outcome of Lock (particularly claims against private sector employers and/or in respect of commission payments). Others are proceeding. • A further tribunal decision is expected in the Lock litigation - this will deal with the correct reference period and the level of holiday pay to which Mr Lock was entitled.
- 24. a) Holiday Pay: Overtime Patterson v Castlereagh Borough Council • Northern Ireland Court of Appeal – not binding • But – may be cited in English and Welsh tribunals • Key question – should purely voluntary overtime be included in calculation of holiday pay? • Answer – will depend on facts NB. 1 July 2015 - Deduction from Wages (Limitation) Regulations 2014 – 2 year backstop on wages claims
- 25. b) Holiday entitlement and sick leave Plumb v Duncan Print Group Ltd • Sick leave is intended to enable an individual to recover from illness • Annual leave is intended to enable a worker to enjoy periods of rest and relaxation for reasons of health and safety • It is inconsistent to compel a worker absent on sick leave to take annual leave at the same time • 18 month limit on carry over of unused annual leave
- 26. c) WTR – Travel and Working Time “Working time” is defined as: – any period during which a worker is working, at his employer's disposal and carrying out his activity or duties; – any period during which he is receiving relevant training; – any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement. “Rest period” – any period that is not working time
- 27. c) WTR – Travel and Working Time Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security Where there is no fixed office base or location, working time starts when they leave home and not when they attend their first job • This is relevant to calculation of working hours, rest periods and possibly holiday entitlement (if accrued according to hours worked) • Pay not affected as not governed by WTR but check employment contracts for enhanced terms
- 28. Working Time Edwards and another v Encirc Ltd Is time spent attending union/health and safety meetings “working time”? • Potentially, yes Practically what do employers do in the meantime? • You may wish to err on the side of caution and treat all union and health and safety meetings as part of working day
- 29. 4. Changing employment contracts Sparks & others v Department for Transport Clause purported to give the employer the right to make unilateral changes to contractual terms Acceptable to use if: • Clear • Unambiguous • Sufficiently broad to cover requirements
- 30. 5. Right to be Accompanied Revised Acas guidance • Absolute right to choose either colleague or trade union representative/official • A worker can change their companion • Good practice to give an employer enough time to make arrangements to allow a chosen companion to attend • The employee should provide the name of the representative and specify whether a colleague or union rep/official
- 31. Right to be Accompanied 2 Stevens v University of Birmingham • Does an employee have a right to be represented by someone other than colleague or union representative? • Held: breach of trust and confidence not to allow employee to be accompanied by individual of his choice • Refusal could be sufficiently severe to constitute a constructive dismissal Point to note: • Consider why the request has been made and the effect of refusal
- 32. 6. Small Business, Enterprise and Employment Act 2015 (SBEEA) • Two areas of note: Penalty for underpayment of the National Minimum Wage Zero Hours Contracts
- 33. Penalty for underpayment of National Minimum Wage (NMW) • National Minimum Wage Act 1998 amended – penalty for non-payment of NMW now maximum of £20,000 per worker • Previously was £20,000 per notice (regardless of the number of affected workers) • Government currently names and shames offending employers
- 34. Zero hours contracts – exclusivity clauses • Exclusivity clauses that seek to restrict a worker’s ability to work under another contract or require authorisation from the employer to do so are unenforceable • Employees protected from unfair dismissal • Workers and employees protected from detriment • Came into force 11 January 2016
- 35. 7. Changes to parental leave • Statutory pay increase: £138.18 to £139.58 per week • From 5 April 2015: – Parental leave now available up to child’s 18th birthday – Antenatal appointments – fathers and partners can take unpaid leave for up to two appointments – Adoption leave and pay – primary adopters can take paid time off for up to 5 adoption appointments and secondary adopters for up to 2 appointments – Surrogacy – primary adopter can take adoption leave
- 36. Shared Parental Leave • From 5 April 2015 • Allows mother to share or split maternity leave • Must be taken before child’s first birthday • To be extended to working grandparents by 2018
- 37. New Shared Parental Leave Continuity of employment Grant or refuse SPL Entitled to statutory SPL (52 weeks) – (maternity leave taken) 26 weeks service Economically active Parental responsibility Main responsibility with named partner
- 38. 8. Privacy in the Workplace
- 39. Privacy in the Workplace • Increasing complexity of technology • Greater use of iPads, laptops, smartphones • What issues arise now that employees can record images/conversations in the workplace so easily?
- 40. Covert recording by employee Chairman & Governors of Amwell View School v Dogherty Covert recordings by the employee: • Usually only admissible in evidence if the recording relates to time when the employee was present “No ground rule could be more essential to ensuring a full and frank exchange of views…than the understanding that their deliberations would be conducted in private and remain private”
- 41. Monitoring Emails Barbulescu v Romania [2016] • ECtHR decision • Dismissed for personal internet use at work • Employer accessed private messages sent to the employee’s friends and family relating to personal matters • Dismissal upheld – proportionate interference with Article 8 rights
- 42. Covert recording by employee 2 Punjab National Bank (International) Ltd v Gosain • Employee recorded panel discussions when she was not present • Recording included allegedly discriminatory comments not relevant to grievance or disciplinary hearings • Could be distinguished from Dogherty • Interests of justice supported its admissibility due to nature of comments
- 43. Enforced Subject Access Requests • It is now a criminal office for employers to force applicants and employees to obtain and disclose a copy of their criminal record through a subject access request under the Data Protection Act 1998 • Risk potentially unlimited fine • Employers can still use DBS checks where relevant
- 44. 9. Social Media Update
- 45. Social Media Dismissal “on standby tonight so only going to get half p****d, lol” British Waterways Board v Smith
- 46. Social Media Dismissals • Failure to take timely action once aware of misconduct; and • Searching for evidence against an employee… …does not necessarily make a dismissal unfair! British Waterways Board v Smith
- 47. Why was the dismissal fair? • The derogatory remarks about the employer; combined with • The reasonable perception of a H&S risk… …resulted in a reasonable conclusion that trust and confidence had been broken British Waterways Board v Smith
- 48. Misuse of email dismissal • Employer actively sought evidence of gross misconduct as way of avoiding paying notice pay • Discovered employee sent pornographic email from his work account in 2008 • Dismissal held to be fair Williams v Leeds United Football Club
- 49. What made the dismissal fair? Court looked at all the circumstances of the case including: • Position held by the employee • Nature of the contract and the employer’s business • Consequences of the breach Williams v Leeds United Football Club
- 50. Summary • Cases highlight the view the tribunals are taking with dismissals • Treat with caution • Prudent employers should: – maintain effective policies on use of social media and electronic communications; and – ensure that those policies are properly implemented and that staff are aware of them
- 52. Protected Disclosures • Employees have right not to be dismissed or subjected to a detriment for making a protected disclosure • After a number of disasters eg Zeebrugge it was recognised that employees should be protected to encourage them to raise concerns – health & safety, criminal offices, etc.
- 53. Protected Disclosures Barton v London Borough of Greenwich • Concerned an employee’s disclosure to Information Commissioner’s Office (ICO) in breach of employer’s instruction • Although employee had made a qualifying disclosure it was not a protected disclosure • Management instruction not to contact ICO was reasonable as specific to the particular investigation • This case does not mean management can stop employees contacting prescribed persons
- 54. Protected Disclosures & Self Interest Chesterton Global Ltd v Nurmohamed Underwood v Wincanton Plc • Two cases involving individual contractual disputes • Held these can be protected disclosures and within the public interest • “Public” can be a small section of society • Cases suggest a low hurdle of what may be a protected disclosure made in matters of self interest • Chesterton is being appealed to the Court of Appeal but is not due to be heard until November 2016
- 56. Indirect discrimination by association • 2008 – a claim of direct discrimination on grounds of disability can be brought by someone who is not disabled but had been discriminated against because of some else’s disability (Coleman v Attridge Law) • 2010: Equality Act prohibits direct discrimination by association • 2015 - a number of cases seem to show an extension of this trend: – victimisation by association (Thompson v London Central Bus Company Ltd) – indirect discrimination by association (Chez Razpredelenie Bulgaria AB (CRB) v Komisia za Zashtita ot Diskriminatsia)
- 57. Is type 2 diabetes a disability? Metroline Travel Ltd v Stoute • Tribunal held yes, but EAT held no • Employee followed diabetic diet avoiding sugary foods • Held: abstaining from sugary drinks was not a “diet” and therefore could not constitute a “treatment”
- 58. Other areas to note…
- 59. Other areas to note… • Modern Slavery Act 2015 • Apprenticeships • Tribunal fees update
- 60. 12. Modern Slavery Act 2015 Slavery and Human Trafficking Statement From 29 October 2015, businesses who: • supply goods or services, and • have a total annual turnover of more than £36 million must prepare a slavery & human trafficking statement for each financial year Note transitional provision: • Organisations with a financial year ending before 31 March 2016 are under no requirement to make statement in respect of that financial year
- 61. 13. Apprenticeships • From 26 May 2015 new scheme of “approved English apprenticeships” introduced • Transitional provisions: – Existing apprenticeships – New apprenticeships where there is no approved apprenticeship standard Note: Approved apprenticeship standards can be found on gov.uk
- 62. 14. Tribunal fees statistics (total claims) 191,541 105,803 61,306 0 50,000 100,000 150,000 200,000 250,000 2012/13 2013/14 2014/15
- 63. Tribunal fees update • Introduced to encourage settlement outside of tribunal system and reduce operational costs of the system • Unpopular with unions and employee groups • Court of Appeal dismissed UNISON’s challenge to fees • UNISON have applied for permission to appeal • In June, Government began review of fees • Scottish Government intends to abolish fees
- 64. 15. Key Updates for 2016
- 65. Trade Union Bill 2015/2016 • Ballot thresholds • Ballot results • Notice of industrial action • Expiry date of industrial action • Supervision of picketing • Facility time
- 66. Apprenticeship levy • Expected to come into force in April 2017 • All employers will pay 0.5% of their paybill However… • All employers will receive £15,000 annual allowance against the levy • In effect only employers whose paybill exceeds £3m per year will contribute (fewer than 2% of employers)
- 67. NLW and NICs 6 April 2016 • National Living Wage • £7.20 per hour- working people 25 and over • Greater impact on the regions versus the South East National Insurance Contributions • Employer NICs abolished for apprentices under the age of 25
- 68. Gender pay gap regulations • Government due to publish regulations by 25 March 2016 • All employers with more than 250 employees will be required to publish information about their gender pay gap • Government intends to include bonus information • Government has pledged to work with business to eliminate all-male boards in top 350 companies Gender Pay Gap Regulations
- 69. Immigration Bill 2015-16 • Contains proposals to curb illegal working and protect the exploitation of migrant workers by: • Extending the existing criminal offence of knowingly employing an illegal migrant from two years to 5 years; • Creating a new offence of illegal working which will enable the earnings of illegal workers to be seized; • Giving the secretary of state the power to introduce an ‘immigration skills charge’ on certain employers who sponsor skilled workers from outside the EEA; and • Requiring public authorities to ensure that public sector workers in customer-facing roles speak fluent English. • Bill is currently making its way through the House of Lords
- 70. Speak to us… Hayley Gilbert| 0115 976 6116 hayley.gilbert@brownejacobson.com Kerren Daly| 0161 300 8051 kerren.daly@brownejacobson.com
Editor's Notes
- Although some areas of employment law saw a distinct decline in caseload during 2015, there was a notable increase in the number of TUPE cases reported. These included a series of decisions from the EAT on the service provision change rules. Also covered were a number of cases dealing with the question of who is assigned to the transferring undertaking or group of employees This is what we are looking at with you.
- Start off with a quick recap on TUPE before looking at some of the important cases of last year. Transfer of Undertakings (Protection of Employment) Regulations 2006 been with us for 10 years (replaced the 1981 Regulations). TUPE implements the Acquired Rights Directive (77/187 and 2001/23). English courts and employment tribunals are required to give TUPE a purposive construction to give effect to the general purpose of the underlying Directive, which is to safeguard employees' rights on the transfer of a business. TUPE introduced three concepts into UK employment law: The automatic transfer principle: employees transfer to the transferee who inherits all rights, liabilities and obligations in relation to them. Protection against dismissal in connection with a TUPE transfer. The obligation to inform and consult with representatives of the affected employees. Various changes to TUPE were made throughout 2014, the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. The TUPE regs apply to two types of transfer: Business Transfer - A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity. This involves three elements: an economic entity; a transfer of that economic entity; and the economic entity retaining its identity following the transfer. Example – selling the assets of a business (not shares) – paint factory (all stock, machines, current contracts) Service provision change - Broadly speaking, this covers outsourcing, insourcing and retendering exercises. Its in the area of service provision changes where we continue to see out courts and tribunals working hard interpreting the question which I get commonly asked – does TUPE apply? Question is important for clients - we are losing work from a contract – from a cost perspective – may be helpful if staff transfer to new contractor (avoid redundancies) or we may not want staff to transfer as they are skilled. If won the work on a retender (or if looking to bring work back in house) we could be faced with increased staff costs if we have to take e/ees or make redundancies.
- When looking at whether TUPE applies under the service provision change provisions - 3 conditions need to met: Organised grouping of resources which must have, as its principal purpose, the provision of services to a particular client Not a single specific or task of a short term duration Not wholly or mainly the supply of goods The definitions of SPC under Reg 3(1)(b) all involve activities being carried out by or on behalf of a ‘client’. Regs also set out exclusions when the Service Provision Change provisions do not apply: Not a single specific or task of a short term duration Not wholly or mainly the supply of goods Example – paint factory I don’t want to deal with the cleaning of the factory so outsource that to a professional cleaning firm (first generation outsourcing) At the end of the contract – I don’t like that firm so ask another frrm to take over the contract (second generation outsourcing) Don’t like that cleaning firm either – so decide I’m better dealing direct with cleaning of the factory (bringing it back in house)
- For changes after on or after 31 January 2014 (under the 2014 Regs): Activities: “fundamentally or essentially the same” Change reflects existing case law on the meaning of ‘activities’ In my Paint Factory example – services (cleaning) need to be the same cleaning (not e.g. maintenance of the machinery)
- Rynda (UK) Ltd v Rhijnsburger Helpful decision in that is one of only a hanful of cases at Court of Appeal level on deciding service provision change Ms Rhijnsburger was a commercial property manager - not part of a team and no other employee assisted her in management of portfolio of properties (Dutch properties) When facing a potential SPC, CA established 4 stage test for determining whether there has been an SPC when company A takes over the provision of services to a client from company B. identify the service which B provided to the client; Lists the activities which B’s staff performed in order to provide that service; identify the employee(s) of B who ordinarily carried out those activities; consider whether B organised the employee(s) into a ‘grouping’ for the principal purpose of carrying out the listed activities. Case also decided it is possible to have an organised grouping of 1 person.
- Inex Home Improvements Ltd v Hodgkins & others Saw the EAT consider how this requirement of their being an ‘Organised Grouping’ is affected by the relevant employees being temporarily laid off prior to the SPC. FACTS - Inex – employed claimants to carry out painting and decorating services. The Claimants worked on a building project in Sandwell, which was split into various tranches, Nov & Dec 2013 – staff temporarily laid off - they were laid off as per a national agreement when a tranche was completed. In January 2014 – the INEX lost the contract – it was awarded to Localrun Decorating Ltd. The claimants brought employment tribunal proceedings against Inex and Localrun. ET: At a preliminary hearing, an employment judge held that, although there had been an SPC, the claimants' employment had not transferred to Localrun because, immediately before the SPC, they were no longer "an organised grouping of employees” – judge reasoned that the claimants could not be part of an organised grouping because they were not working; they had been temporarily laid off. Employees appealed EAT disagreed with employment judge in tribunal Despite temporary cessation of work still organised group Purpose, nature and length of cessation is important EAT held that laying-off employees before a transfer meant that they were still 'assigned' to an 'organised grouping of employees', which allowed them to transfer under TUPE in a service provision change. EAT took a purposive approach to TUPE over a service provision change, for the 'protection of employment' despite those regulations deriving from UK law not EU law, and noted that: "Common sense suggests that a temporary cessation of employment including for the purpose of holidays, sickness, or expressed to be a temporary lay off should not of themselves deprive employees of their employment if there is a service provision change during the period of temporary cessation."; but noting "In our opinion a temporary cessation of work in the case of a service provision change immediately prior to the transfer does not necessarily prevent a TUPE transfer taking place. The purpose, nature and length of the cessation are of course relevant in determining whether or not the organised grouping continued in existence.".
- BT Managed Services Ltd v Edwards Facts: EAT case – September 2015 Mr Edwards worked for Orange in its domestic network outsource (DNO) division Jan 2006 – went off sick and remained off work for over 5 years for a heart condition Under his employment contract, Mr Edwards was entitled to permanent health insurance (PHI) and was by 2009 receiving regular payments under PHI scheme 2009 Oranges’s DNO division outsourced to BT and Mr Edwards transferred In 2010, it seems that two managers in the DNO division at BT made a conscious decision to keep Mr Edwards permanently absent so that he could continue to receive PHI payments. 2012 – further retender and DNO division transferred from BT to Ericsson BT maintained that Mr Edwards' employment transferred to Ericsson on the basis that he remained part of the DNO division, despite his absence. However, Ericsson refused to accept Mr Edwards on the grounds that his long-term absence prevented him from being "assigned" to the division at the time of the service provision change (SPC). ET - found that Mr Edwards was not assigned to the DNO division immediately before the SPC. EAT dismissed the appeal - Mr Edwards was not assigned EAT distinguished this case from scenarios where employees are on maternity leave or long-term sick leave. In this case, Mr Edwards was "permanently" unable to return to work and could have no further involvement in the economic activity performed by the grouping (the DNO division) and the performance of which is its purpose. Mr Edwards' connection with the grouping boiled down to a limited administrative connection, which was not based on any present or future participation in economic activity. Distinguished between: long-term sick/maternity leave/ lay-off Case is being appealed - Scheduled to be heard in the Court of Appeal on 14 June 2016.
- Ottimo Property Services Ltd v Duncan and anor Facts Mr Duncan was employed by Chainbow Limited (Chainbow) as a Site Maintenance Manager based at Britannia Village (BV), an estate made up of a number of blocks of residential housing. Each block had its own residents' management company, which was a separate legal entity, and there was also a general management company for the common parts of the estate. 12 out of the 13 management companies entered into property management services contracts with Chainbow. Over a period of years, Chainbow lost six of these contracts and, in February 2012, it sub-contracted the remaining six contracts to Ottimo Property Services (Ottimo). Mr Duncan was treated as having transferred from Chainbow to Ottimo under TUPE. Between May and August 2012, these six contracts were assigned to Warwick Estate Properties Limited (Warwick). Warwick did not consider that TUPE applied to the transfer and employed its own on-site Property Manager at BV. Mr Duncan was subsequently dismissed by Ottimo in July 2012. Mr Duncan brought tribunal proceedings claiming that his employment had transferred to Warwick. ET - found that there was no service provision change under TUPE (second generation outsourcing). This was on the basis that, construed literally regulation 3(1)(b) requires a single client. Although there may have been a service provision change in relation to each individual management contract, the tribunal considered that it was not permissible for a number of contracts with different clients to be aggregated to make one overall service provision change. Mr Duncan appealed EAT - upheld the appeal and remitted the case to the same tribunal to reconsider whether there was a service provision change. It held that a service provision change can, in principle, involve a group of clients, provided that they remain the same after the transfer and they share a common intention. Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) FACTS J was employed as a care worker by SC, working for a local authority. On 19 June 2013 the Council wrote to SC instructing it to remove J from work on its contract. Although this instruction was lawful under the contractual arrangements, it was not carried out: instead Saga Care issued J with a written warning on 27 June. Meanwhile, SC’s contract with the Council expired and the relevant services transferred to WH Ltd on 1 July. ET: having found that there had been a transfer by way of an SPC, went on to find that J had not been assigned to the relevant grouping. EAT: overturned decision.. The EAT could not accept that, whenever a third party instructs an employer to remove an employee from working upon particular activities, the employee immediately ceases to be assigned to the organised grouping of employees. The employer might ignore such an instruction, or might protest and argue the employee’s case. In either situation, the employee would remain assigned to the relevant grouping. Regulation 4(3) specifies that the only employees to transfer are those who were ‘employed immediately before the transfer’ or who would have been so employed had they not been automatically unfairly dismissed. Key points EAT also gave view that suspension is not enough to remove an employee from organised grouping. One possible route to ensure a remedy on termination of an outsourcing agreement, for non-compliance with an instruction to remove an employee, would be to negotiate a provision in the outsourcing agreement obliging the service provider to agree with the client a list of transferring employees (and to indemnify the client against any costs associated with those not on the list). However, it is not standard practice for outsourcing agreements to include such a list, particularly, as in this case, where it is a second or subsequent generation outsourcing. Where no list is agreed, it would be worth considering a specific indemnity in respect of any employees whose removal the client has instructed. --------------------------------------- ICTS UK Ltd v Mahdi and ors In order for there to be a service provision change, the client must intend that the relevant activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration FACTS ICTS had a contract to provide security services to Middlesex University at one of its former campuses. Middlesex sold the site but ICTS continued as service provider. The new owner then put the security service out to tender. Mr Mahdi lost his job when the contract was taken over by a new contractor, First Call. First Call disputed there was a TUPE transfer on a number of grounds, one of which was that, whereas ICTS had a contract to secure an operating site, First Call had a contract simply to look after the site pending its redevelopment by the new owner. The new contract was, therefore, First Call said, a contract for a single specific task of short term duration and so excluded from being a service provision change by virtue of TUPE, Reg 3(3) (a) (ii). The exclusion only applies, however, where it is the client’s intention that the activities concerned are to be carried out in connection with a task of short term duration. ET – the Employment Judge accepted First Call’s argument that when the contract had been granted it was the intention that the contract was to be for a limited period, to look after the site pending construction. But by the time of the hearing no planning permission had been obtained and no building work had commenced. On appeal EAT said this may have been relevant, and should have been taken into account by the Employment Judge. The Employment Judge therefore erred in law in not doing so, and the case was remitted for a re-hearing by the employment tribunal. Subsequent events, can be relevant in deciding a client’s intention for the purposes of determining issue.
- Relevant to any employers looking to re-organise or re-structure across a number of sites EU Collective Redundancies Directive (No.98/59) Directive is implemented into UK law by Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) Ongoing issue over what is meant by “establishment”
- Where an employer fails to comply with its collective consultation obligations, a complaint may be made to an employment tribunal, which can make a protective award of up to 90 days’ pay for each affected employee ET held no need to consult at establishments of less than 20 people – 4500 people did not receive protective award
- In 2013, a controversial decision of the EAT which deleted the words “at one establishment” dramatically extended the scope of the collective consultation regime. The decision effectively required collective consultation whenever an employer proposed 20 or more redundancies across the whole organisation within a period of 90 days, even if the numbers of proposed redundancies at any given site were considerably lower.
- The ECJ delivered its decision on 30 April 2015 “Establishment” means the unit to which the workers made redundant are assigned The case will now return to the Court of Appeal to determine whether, on the facts, each branch of Woolworths and Ethel Austin was a separate establishment for the purposes of TULRCA. However, given the ECJ's decision, it seems likely that the Court of Appeal will overturn the EAT's judgment and confirm that each store was an establishment. The decision will come as something of a relief to employers, as had the Directive required the aggregation of dismissals across all workplaces belonging to a single employer, far more employers would have been obliged to consult over collective redundancies. Subject to the Court of Appeal’s decision, in the vast majority of cases, “establishment” is likely to be a single store or site. However, there may still be some occasions (as there were before the 2013 EAT decision) where separate geographical sites could be aggregated to form a single establishment – for example, building operations carried out at multiple sites but with a common headquarters and administrative base may constitute one single establishment. Employers should carefully consider what their proposals are, and the potential implications of those proposals, to determine whether the collective consultation obligations are triggered.
- The meaning of the Working Time Regulations continues to evolve, with holiday pay being the main area of attention, alongside the question of what counts as ‘working time’. We are going to look at the recent cases on the issues Holiday pay calculations Relationship between sickness absence and annual leave entitlement Is travel working time for peripatetic workers?
- The Working Time Regulations - implements European Working Time Directive (No.2003/88) Policy Rationale A raft of cases looking at how sick leave and holiday entitlement interact The underlying theme is that someone cannot take holiday during a period of sickness – incompatible
- - Reg. 13 – workers are entitled to 4 weeks basic annual leave - In the UK, Reg.13A – provides additional 1.6 weeks leave over and above 4 week period - Reg. 16(1) - a worker is entitled to be paid at the rate of a “week’s pay” in respect of each week of annual leave to which he or she is entitled under Reg. 13 or Reg. 13A - Ss. 221-224 ERA 1996 set out methods for calculating a week’s pay according to terms of remuneration package
- Lock and ors v British Gas Trading Ltd and anor An energy trader brought proceedings for unlawful deduction of wages on the basis that following a period of holiday (as he was only paid his basic pay during such a period) his remuneration dropped by as much as 60% as he did not receive commission payments for the period he was on holiday. The case was referred to ECJ which found commission payments should be taken into account The ECJ has held that, where a worker's remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes a national law that calculates statutory holiday pay based on basic salary alone. If commission payments are not taken into account, the worker will be placed at a financial disadvantage when taking statutory annual leave; no commission will be generated during the holiday period. In such circumstances, the worker might be deterred from exercising the right to annual leave. This would be contrary to the directive's purpose. This case was referred to the ECJ by the Leicester employment tribunal. The tribunal recognised that, under the natural wording of the Working Time Regulations 1998 and the week's pay provisions of the Employment Rights Act 1996, the claimant was not entitled to a sum in respect of commission in his holiday pay. The case is now likely to return to the tribunal to consider whether the domestic legislation can be interpreted in line with the ECJ's decision and, if it can, the level of holiday pay to which the claimant was entitled. (Lock v British Gas Trading Ltd C-539/12.) Comment If and when this case returns to the employment tribunal, the tribunal will need to consider whether the WTR 1998 and, in turn, the week's pay provisions of the ERA 1996 can be interpreted in line with the ECJ's decision (at least with regard to the four weeks' leave required by the WTD). Recent history, particularly in cases concerning sickness and holiday under the WTR 1998 (see Practice note, Statutory holidays and sickness absence), suggests that the tribunal will find a way to make this happen. This will have wide-reaching consequences for many businesses and their workers. For further discussion, see Including Commission in Holiday Pay, Hard Labour Blog, 6 December 2013, which was published following the Advocate General's opinion. It will be interesting how the tribunal might approach calculating any payment in respect of commission to which Mr Lock is entitled. The Advocate General stated, by way of example, that a reference period of 12 months would appear to be an appropriate solution. However, the ECJ did not repeat this, simply suggesting that the tribunal should use a reference period considered to be representative under national law. Under the WTR 1998, the usual reference period for workers whose remuneration varies with the amount of work done, and for workers with no normal working hours, is 12 weeks rather than 12 months. Although Mr Lock does not fall into these categories, it might well be that the tribunal will apply the 12-week reference period for the sake of consistency. The ECJ's decision is not only relevant to cases involving commission. The court's continued insistence that workers receive their "normal remuneration" during statutory holiday periods raises the question of whether overtime payments should also be included. There are two cases scheduled to be heard by the EAT at the end of July: In Neal v Freightliner Ltd ET/1315342/12, an employment judge held that, in light of Williams (see Background), a worker's overtime payments had to be taken into account when calculating his holiday pay. The judge decided that words should be added to regulation 16 of the WTR 1998 to exclude sections 223(3) and 234 of the ERA 1996 (the offending overtime provisions) when calculating holiday pay in respect of the minimum four-week entitlement provided for by the Directive. (See Legal update, Overtime must be taken into account when calculating statutory holiday pay.) Similarly, in Fulton and another v Bear Scotland Ltd ETS/4112472/12, an employment judge decided that a worker who worked regular overtime as a matter of course was entitled to have that overtime reflected in his holiday pay. Further, standby and emergency call-out duties had to be taken into account. As in Williams, these were linked intrinsically to the performance of tasks required to be carried out under the contract.
- The holiday pay case that received the most publicity was the Northern Ireland Court of Appeal decision in Patterson –v- Castlereagh Borough Council Facts P (the lead claimant in a multiple claim) worked as an assistant plant engineer for the Council. He brought a claim for unlawful deductions from his wages in the Industrial Tribunal in Northern Ireland, arguing that the Council should have included the pay he received in respect of voluntary overtime when it calculated his holiday pay. When the tribunal rejected this claim, P appealed to the NICA. In that case, the NI Court of Appeal categorically stated that voluntary overtime could be included within holiday pay calculations provided that it has the required degree of regularity and permanence. Patterson is not binding on Tribunals in England, Wales and Scotland but may be persuasive. It is certainly consistent with the direction of travel that is being taken to date in respect of holiday pay claims by the Tribunals. Deduction from Wages (Limitation) Regulations 2014 The introduction of the Deduction from Wages (Limitation) Regulations 2014 last year, imposing a two-year backstop on the majority of unlawful deductions from wages claims (including holiday claims) from 1 July 2015 did not create the influx of holiday claims that some predicted. Many employers alike are still sitting tight awaiting hopeful clarification on this uncertain area of law from the EAT in Lock. Others are taking steps now to address holiday pay going forwards to assist with morale/employee engagement and to break any series of deductions.
- Background The Working Time Directive (2003/88/EC) (the Directive) provides that member states must ensure that every worker is entitled to paid annual leave of at least four weeks (Article 7(1)). This is implemented in Great Britain by regulations 13 to 16 of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). Regulation 13(9) of the WTR 1998 states that holiday to which a worker is entitled must be taken in the leave year in respect of which it is due, and may not be replaced by a payment in lieu except on termination of employment (which is provided for by regulation 14). In other words, subject to any agreement to the contrary, holiday cannot be carried over into the next leave year under the WTR 1998. NHS Leeds v Larner [2012] IRLR 825 the Court of Appeal held that, in order to interpret the WTR 1998 in line with the Directive, regulation 13(9) should be read as including the words in bold below: "Leave to which a worker is entitled under this regulation may be taken in instalments, but - (a) it may only be taken in the leave year in respect of which it is due, save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave". Plumb - Facts P was employed as a printer for DPG Ltd. Having suffered an accident at work, he remained on sick leave between 26 April 2010 and 10 February 2014, when his employment terminated. DPG Ltd’s leave year ran from 1 February to 31 January. P did not take or request any holiday until 2013, when he requested permission to take all of his accrued holiday from 2010. DPG Ltd agreed to pay his salary in respect of accrued holiday for the current leave year (2013/14), but not for the previous three leave years. Following the termination of his employment, P brought a claim for payment in lieu of untaken leave for the 2010/11, 2011/12 and 2012/13 leave years. Comment The decision clarifies the wording added to regulation 13(9) of the WTR 1998 by the Court of Appeal in Larner and, therefore, the circumstances in which sick workers may be entitled to carry over accrued and untaken statutory holiday. Sick workers do not need to provide evidence that they were physically unable to take holiday. If they do not take or request holiday during sick leave, it is to be assumed that they are unable or unwilling to take it and, accordingly, that leave may be carried over to a subsequent holiday year. It was already clear from EU case law (Schulte) that accrued leave cannot be carried over indefinitely. However, the limit on the carry-over period to be read into the WTR 1998 had not been determined. This case confirms, subject to appeal, that leave can only be carried over for 18 months from the end of the leave year. Accrued leave which goes beyond that cut-off period will lapse. It remains important for employers to actively manage any cases of long-term sickness absence to avoid significant annual leave costs adding up.
- Facts The case was brought by a Spanish trade union against Tyco, a multinational fire and security company which closed its network of regional offices in Spain in 2011. Tyco employed technicians who installed and maintained security equipment at customers’ premises. The technicians were provided with a vehicle and travelled from their own homes to appointments. Tyco argued that the technicians’ travelling time was a “rest period” rather than working time. The CJEU disagreed, stating that during such journeys the workers are at work, at their employer’s disposal and carrying out their duties or activities. Held The ECJ considered what amounts to working time for peripatetic (mobile) workers. It determined that where an employee has no usual place of work, time spent travelling from and to the employee’s home in respect of the first and last appointments of the day counted as working time. This decision is of most relevance to those industries with sales persons, care workers, maintenance technicians and engineers etc. who do not have a fixed place of work but who travel around. Employers should identify whether any of their employees are caught by this decision and ensure that employees have the opportunity to take the appropriate breaks required under the Working Time Regulations 1998. Opt-outs from the 48-hour working week may be required, although it may also be possible to reduce working hours by changing the allocation of particular assignments according to home-addresses. This decision does not affect pay legislation such as the National Minimum Wage Regulations but employers should consider whether their current contractual wording requires any additional payments for this travel time. Employees are entitled to the following rest breaks: a. a daily rest period of 11 hours' uninterrupted rest per day; b. a weekly rest period of 24 hours uninterrupted rest per week and c. a rest break of 20 minutes when a day's working time is more than six hours. Are the employees' receiving sufficient holidays? This will only become an issue in circumstances where an employee's holidays are measured and provided in hours rather than days or weeks. For example, if an employee that works three days per week at 7 hours per day (not including travel to their first and from their last jobs) is contractually entitled to 117.6 hours of holiday per year (that is 21 hours per week multiplied by their 5.6 weeks' statutory entitlement), this will no longer be sufficient following the ECJ ruling. Such employees would need to receive an increase in their annual entitlement to reflect the increased working hours. However, again this should not affect how much pay they receive per day's holiday; Employers need to check if the wording of the employees' contracts provide them with an enhanced right to pay during travel time to and from work. The National Minimum Wage Act makes it clear that, in relation to pay, time spent travelling to and from an employee's place of work, or their first/last assignment, does not count as working time. However, employers may need to look at the total remuneration earned over the relevant pay reference period, and dividing the total remuneration by the total numbers of hours worked. Legal Background “Working time” is defined as: any period during which a worker is working, at his employer's disposal and carrying out his activity or duties; any period during which he is receiving relevant training; any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement. “Rest period” – any period that is not working time Neither the Directive nor the WTR state whether travel to and from a place of work or between places of work should be considered working time. Non-statutory guidance on GOV.UK states that "time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers" is included in working time, but that "normal travel to and from work" and "travelling outside of normal working hours" are not.
- Facts Claimants were an employee health and safety representative and a union shop steward. On Wednesday 11 September 2013, Mr Edwards attended a meeting for health and safety representatives. He had been scheduled to work three 12-hour night shifts that week, from 7 pm to 7 am on Tuesday, Wednesday and Thursday nights. The meeting started at around 1 pm on Wednesday, and finished at around 4 pm. He had been excused from working his Tuesday night shift, and he was allowed to start his Wednesday night shift three hours late, at 10 pm instead of 7 pm. On Friday 20 September, Mr Morgan attended a trade union meeting in his capacity as a shop steward. The meeting ran from 9 am to 1 pm. He had been scheduled to work four 12-hour night shifts that week, from 7 pm to 7 am on Friday, Saturday, Sunday and Monday nights. He was therefore not scheduled to work on Thursday night, and he was allowed to delay the start of his Friday shift by three hours, starting at 10 pm rather than 7 pm. On 1 October 2013, the Regional Officer for the Unite trade union complained to Encirc that (among other things) it was breaching the union representatives' right to 11 consecutive hours' rest in every 24-hour period under the WTR. At first instance, on the WTR point, The tribunal held that time spent on trade union duties or attending health and safety committee meetings was not "working time" for the purposes of the WTR 1998. Although the claimants could be said to be "working", they were not at their employer's disposal, nor were they carrying out their activities or duties. Held The EAT allowed the appeal on the definition of working time under the WTR 1998, and remitted the case to the employment tribunal. In regards the definition of “working time” the EAT held: there was no argument as to the fact that the employers were working; being at the employer's disposal does not mean being at the direction and control of the employer throughout the period. It was not in dispute that the claimants were required to attend the meetings, and that the employer had decided when and where the meetings were to be held and how they were to be conducted. It was not in dispute that if the meetings had taken place during a shift, the employer could have directed the employees to leave the meeting and undertake other duties. The EAT took the view that where the meeting takes place between shifts, the employer could direct the employees to leave the meeting so as to take a sufficient break in order to start their shift on time. Although the activities and duties discharged by the employees at the meetings had been assigned by the union/employee side rather than by the employer, the EAT took the view that they were carrying out activities or duties that were, in the broader sense, of benefit to the employer's business, and were doing so because of the employment relationship. In the EAT's view this was sufficient. Key points This is the first EAT decision on whether time spent attending union meetings or health and safety meetings counts as working time under the WTR 1998. EAT held that the time could be working time and has remitted case back to ET for determination. Employers may wish to err on side of caution given broad approach taken by EAT. Furthermore, unions may wish to negotiate to widen or clarify the scope of union duties that may constitute working time in a collective agreement in the light of this case
- Background Attempt to introduce a new standard "trigger point" across its various agencies re number of absences required before an official absence management process was initialised. Handbook stated only non-detrimental changes could be made. Held current trigger point incorporated into ' contracts and the suggested change was detrimental. Key points Case specific on facts but gave useful guidance on unilateral change clauses: must be clear, unambiguous and sufficiently broad to give an employer discretion to make the desired changes.
- Revised ACAS guidance to the Code published Employer must agree to worker's request to be accompanied by a fellow worker, trade union representative or official. Request to be accompanied must be "reasonable“: means the making of the request, not to the choice of companion. Ers can allow workers to be accompanied by companions who aren’t trade union representatives or colleagues. Worker can change their companion if they wish, and can do so without waiving their right to change their choice again. Effect of these changes limited: compensation likely to be nominal.
- Prof. Stevens: investigated for misconduct. Invited to an investigation meeting. Told could be represented by TU or EMPLOYEE. S not member of TU and no employee he wanted to bring. Asked to be accompanied by Dr Palmer, a Medical Protection Society representative. Uni refused. S applied to High Court for declaration that he could bring Dr P. Held: no express or implied right to bring anyone other than TU or employee. In circs, breach of implied term of mutual T&C not to allow S to be accomp by Dr P. Court noted S had been allowed to be accompanied by Mr P up to the point of the investigation meeting; that witnesses were allowed to be accompanied by those that were not trade union members or uni members; and that the result would be that S would be unaccompanied at the meeting.
- Act covers a number of areas of legislative reform Stated aim to reduce the barriers that can hamper the ability of small businesses to innovate, grow and compete.
- Financial penalty is 100% of the arrears owed to each worker, subject to a maximum of £20k per worker
- Zero hour contracts Makes exclusivity clauses in zero hours contracts unenforceable. Came into force on Monday 11 January 2016. Employers cant restrict employees from working for only one employer. Gives zero hours employees right not to be unfairly dismissed Gives employees and workers the right not to be subjected to a detriment for failing to comply with an exclusivity clause.
- Statutory pay for Maternity, Paternity, adoption and shared parental pay increased Unpaid parental leave available to those with parental responsibility for a child, employed for more than 1 year. 18 weeks per child. Update: 5 April 2015 Unpaid leave can now be taken up to child’s 18th birthday. Whole weeks, maximum leave per year 4 weeks. Antenatal appointments Fathers/partners: unpaid 2 appointments Adoption leave and pay Primary adopters: paid time off, up to 5 appointments Secondary adopters: unpaid time off, up to two appointments. Surrogacy Primary adopter can take adoption leave and pay provided the prospective parent has applied for a 'parental order'.
- Shared parental leave Children born or adopted after 5 April 2015. Share or split parental leave. Take at same time, or one after another. Before child’s first birthday. Mother: 52 weeks mat. Leave, 2 weeks’ compulsory. 39 weeks paid in total. Leaves 50 weeks, 37 of which will be paid, to split. Note: replaces previous regime of additional paternity leave, which was taken up by less than 1% of eligible fathers. ASK if anyone has received an SPL request, or any interest from employees. Extension to grandparents Chancellor announced on 5 October 2015 that he will extend shared parental leave an pay to working grandparents. The aim is to implement the policy by 2018. The government will begin consulting on this policy in the first half of 2016.
- Both parents must: share main responsibility for caring for the child with the named partner. be an employee have worked for the same employer for at least 26 weeks at the end of the 15th week before the child’s expected due date be ‘economically active’. In the 66 weeks leading up to the baby’s expected due date or matching date, the person must have worked for at least 26 weeks and earned on average at least £30 a week in any 13 weeks. Mother must cut short her maternity leave. Remaining leave can then be split. Employer must accept applications for continuous leave in writing within 14 days of the employee giving notice If the employee applies for discontinuous leave, the employer can confirm or agreed a modification of that leave in writing within 14 days of notice. Employers are not under any statutory obligation to respond to notice of SPL, but if they give no response, then an employee can take the leave outlined in their notice. As an employer, you can ask for proof of the birth or adoption, such as: birth certificate/documents re adoption name and address of other partner’s employer It’s a good idea for employers to have a shared parental leave policy.
- Dogherty – 2007 case TA dismissed in June 2005 for misconduct. 3 hearings as part of the disciplinary procedure D recorded the hearings without knowledge of panel members One recording included the panel’s private deliberations EAT allowed recordings of hearings where D present to be included as evidence EAT ruled D could not submit recordings of panel’s deliberations as there was an important public interest that parties should comply with the ‘ground rules’ on which disciplinary and appeal proceedings were based. Established rule that when an employee secretly records an internal meeting or hearing with the employer, the recording of any parts of the meeting where the employee is present may be admissible before an ET if the tribunal believes it is relevant, but any covert recording of private discussions of the employer’s disciplinary panel will not be admissable on the grounds of public policy. So does this mean you don’t have to worry about whether or not an employee might have left a device recording in their bag or under the table? Not necessarily…
- Case of Punjab National Bank and Gosain established an exception to the rule in Dogherty. G employed from May 2011 until resigned in January 2013 Attended grievance hearing and disciplinary hearing. Secretly recorded both public discussions at the hearings and the private conversations of the panel The private panel comments recorded during a break in the grievance hearing included: the bank's managing director giving an instruction to dismiss Ms Gosain AND the manager hearing the grievance saying that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter, namely, that she was not allowed a proper lunch break and issues concerning her pregnancy. Brought claims of sexual harassment, sex discrimination and constructive unfair dismissal. bank objected to the admissibility of the private contents of the recordings. ET and EAT ruled: public and private recordings could be admitted as evidence. Case distinguished from Dogherty because private comments of the panel "were not part of the deliberations in relation to the matters under consideration" at the grievance and disciplinary hearings. tribunal found that the private comments recorded were not the type of comments that fell within the "ground rules" principle set out in Dogherty. What can you do to minimise the risk of covert recordings becoming admissable? It will always be for the tribunal to decide whether or not recordings are admissible, however the following may assist if you are ever faced with a situation where an employee has covertly recorded a hearing or panel discussions: Expressly prohibit recording of hearings in you disciplinary and grievance policies Ask employee to confirm they are not recording the hearing at the start of each hearing Get the panel to move to a separate room to carry out their deliberations, to avoid a situation where a recording device has been left in the room by an employee
- Before 10 March 2015, employers were able to force job applicants and employees to obtain and then provide a copy of their criminal record by means of a subject access request under the DPA, as a condition of employment or continued employment. Doing so is now a criminal offence. It is a criminal offence for any person to require another person to supply him with details of their criminal record by means of a SAR under the DPA. There is an exception where an individual’s criminal record is required by law or is justified in the public interest. This could, for example, cover childcare workers and government workers who have regular access to highly classified information. An employer who breaches this new law will be liable on conviction to a potentially unlimited fine.
- Facts S worked for British Waterways Board as manual worker from 1 April 2005 to 4 June 2013, when he was summarily dismissed for gross misconduct. Mr S responsible for maintenance and general upkeep of canals and reservoirs. Standby one week in every five, not permitted to consume alcohol. During employment, Smith raised number of grievances. In May 2013, when a mediation was arranged to deal with those grievances, one of Mr Smith's managers supplied incriminating comments Mr Smith had made on his Facebook page to BW's HR team in order to demonstrate that the issues were not “one-sided”. Comments referred to supervisors in derogatory terms and to Mr Smith drinking alcohol whilst on standby. Comments included: COMMENT ABOVE “Why are gaffers such pillocks, is there some kind of book teaching them to be total wankers” When asked if he was going to let everyone drown, he responded “just the ‘cunt’ from Braid Square lol” The comment relating to drinking alcohol whilst on standby had been posted in 2011. Manager had known about this since 2012 and had discussed it with HR team but they had not raised them with S or investigated further. When Mr S arrived at the mediation meeting, he was suspended from work pending an investigation into the comments. Summarily dismissed for gross misconduct. BW found that he had made derogatory comments about BW as an er and that he had claimed to be drinking alcohol on standby, bringing his capabilities into questione and leaving BW open to condemnation in a public forum. Mr S brought a claim for unfair dismissal. ET found that he had been unfairly dismissed. A fair procedure was followed, but the decision to dismiss was outside the band of reasonable responses. This was because BW hadnt taken mitigation into accout: Mr S had an unblemished service record and BW had been aware of the comments for some time. The ET found there had been no emergency on the night in question. BW appealed. EAT substituted a finding that the dismissal was fair. EAT held the ET had substituted its own views when it held BW didn’t give weight to the mitigating factors. BW’s decision was within the range of reasonable responses. Also, the ET had made its own findings of fact in relation to Mr S drinking alcohol whilst on call, by inferring that the incident had no impact.
- READ THESE POINTS: Case shows that an employer who failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. Employer deliberately searched for evidence against the employee who had raised grievances. Misconduct in this case predated the dismissal by 2 years and the employer had known about it for a considerable length of time before it decided to take action. The EAT did not criticise the employer for relying on it to dismiss the employee.
- READ SLIDE AND THEN THE POINTS BELOW: The EAT agreed that it was a reasonable decision for the employer to lose trust and confidence with the employee when he had made public remarks about being under the influence of alcohol whilst on standby (which was a risk to public health) and that he had breached his position of trust. Although this case will provide support when looking at dismissal for posts made on facebook, this is an area which still needs to be exercised with caution.
- W: technical director from August 2006 Summarily dismissed for gross misconduct on 30 July 2013. Entitled to 12 months' notice. Club decided to restructure 22 July 2013: decision made not to pay W his 12 months’ notice. A firm of forensic investigators were instructed to investigate W computer. 23 July 2013: notice of redundancy given to W 24 July 2013: club learned of the email. March 2008: W received email containing pornographic images and forwarded to a friend from work email account. 24 July 2013: Club wrote to W setting out the disciplinary allegations 29 July 2013: hearing held in W’s absence 30 July 2013: W dismissed for gross misconduct without notice. Club found that Mr W was in breach of internet and email code of practice and considered the images were capable of giving great offence. Club considered that the email could have given rise to a claim of sexual harassment if other employees had seen it, for which the club could be liable. In addition, the fact Mr W sent the email from a work account could bring the club into disrepute. W appealed. Was conducted as a rehearing. Dismissal upheld. Club considered that Mr W should have known that his actions were unacceptable. Held that forwarding the email amounted to blatant misuse of club’s computer equipment and his duties to the club, and had the effect of destroying the relationship of trust and confidence. W issued claim for damages in High Court in respect of his 12 months' notice pay, loss of pension, other contractual benefits and a statutory redundancy payment. After proceedings issued defence filed, the club discovered that W had also forwarded the email to two other people: a junior female employee at the club and to another male friend at another club. The club amended its defence. Held: club entitled to rely on its discovery of further gross misconduct after the dismissal to justify its decision to dismiss. W’s actions amounted to breach of the implied term of mutual trust and confidence.
- held very senior management position images went beyond being harmless and were capable of causing offence Sending images to a junior, female, employee by senior manager who had significant influence over her career may have caused offence and left the club vulnerable to a harrassment claim. club’s reputation was important when securing and retaining supporters and sponsors. Images sent from a club email address. media likely to be interested in a story involving the distribution of such material within the professional football world. Also note: fact that W hadn’t been provided with a copy of the internet and email policy was not important. Should have been obvious to him that the club’s emails system shouldn’t be used to send obscene and pornographic images. Wasn’t relevant that Mr W continued to work for the club for 5.5 years after he forwarded the emails. The court looked at whether or not his conduct was sufficiently serious to amount to a repudiatory breach when it was discovered by the club. Club was not prevented from relying on Mr W’s breach by its own actions in actively seeking to find evidence to avoid paying his notice.
- Read slide and then… - Also ensure your policies are regularly reviewed.
- "Whistleblowing“: act of reporting or exposing wrongdoing. Following a series of disasters and financial scandals in the 1980s and early 1990s, there was a widespread recognition that many organisations had a culture that discouraged the reporting of wrongdoing and viewed whistleblowing as an act of disloyalty to colleagues or to the organisation as a whole. Those who did speak up were either ignored or, worse, suffered damage to their careers in one way or another. This culture and its damaging effects were confirmed in official reports into (to name one) the sinking of the Zeebrugge ferry. Zeebrugge: investigation revealed that staff reported concerns about ferries leaving ports with doors open five times, but the issue never got beyond middle management. Rights engaged if employee has made a “protected disclosure” that in his or her reasonable belief was made in the public interest.
- B, told by a colleague that a manager had sent 100s of documents containing personal information about the colleague to their personal computer. B telephoned ICO for advice and told ICO of the claims. He then made management aware of the call to the ICO. Manager informed B that he would be investigating the issue fully and in the meantime B was not to contact the ICO again without consulting a manager. B telephoned the ICO to ask if he needed authorisation from management to make the disclosure – ICO said no. The investigation revealed that only 11 documents had been sent by a colleague to her home computer, none of which were inappropriate. Mr B was subjected to a disciplinary investigation in relation to his failure to comply with the instruction not to contact the ICO. It was a failure to follow a reasonable instruction, and Greenwich also considered his escalation of the matter outside the organisation with unreasonable haste could cause reputational damage. He received a final written warning. Following a further unrelated act of misconduct, he was summarily dismissed. Brought a claim for unfair dismissal and argued he had made protected disclosures. Held On issue of disclosures: 1st contact with ICO was qualifying disclosure as B had reasonable belief that there was failure to comply with DP law. Not a protected disclosure as B had not attempted to verify the truth of the claims, which was relatively easy to do. He had jumped the gun. 2nd contact not a disclosure but a request for advice. On issue of management instructions, EAT gave view that not unlawful as instruction was specific (in that it was only during course of investigation) and was not a blanket ban (i.e was a direction not to contact without discussing with manager first – which was reasonable). Decision given on very narrow facts of case and if disclosure was found to be protected management instruction would have been void.
- In 2013 – requirement that disclosure be made in the public interest. Facts – Chesterton Employee complained about misstatement of £2 million worth of costs and liabilities in his employer’s accounts, which could have a negative impact on his own bonus and that of 99 of his colleagues. Court held “public” could be constituted by a subset of the public, “even if that subset comprised persons employed by the same employer on the same terms”. Facts – Underwood Underwood: HGV driver November 2013: Uand 3 colleagues submitted a written complaint regarding their terms and conditions of employment, including, in particular, the way in which overtime was allocated among drivers. U dismissed in June 2014. U issued claim: submitted the November 2013 complaint amounted to a protected disclosure and that his dismissal was automatically unfair. Held that 4 employees could constitute the public and disputes relating to Ts and Cs could constitute matters in the public interest Key points Cases involving individual contractual disputes can be held as being within the public interest. There will need to be some form of public interest element but the definition of “public interest” has been widened so as to include: a potentially small section of the public; and/or it is enough that the person making the disclsoure has a reasonable belief that there is a public interest element (here, the issue that some drivers had alleged vehicles were unfit for the road could potentially be enough to amount to a public interest ground) Chesterton is being appealed to the Court of Appeal but is not due to be heard until November 2016. In the meantime, it is likely that further cases involving individual contractual disputes will be held as being within the public interest following this decision.
- Coleman: employee who cared for her disabled son (and was not herself disabled) could bring a claim for associative discrimination Thompson: third party carried out a protected act, Mr T complained that he had been victimised because of that protected act. Question is whether, in the mid of the employer, the protected act of a 3rd party was the reason for the treatment of the employee. Claim for associative victimisation is possible. Chez Razpredelenie: european case which involved discrimination in the provision of services, however it is still relevant to the employment context. Advocate General stated that the claimant may have suffered indirect discrimination by association. ECJ is still to rule. In the EqA the concept of discrimination by association is specifically limited to direct discrimination. If the ECJ agrees with the AG then this would represent a major departure from existing UK law.
- S was employed by Metroline as a bus driver before he was dismissed for gross misconduct. Type 2 diabetes (and as such abstained from sugary drinks), Claims for unfair dismissal, discrimination arising from disability, and a failure to make reasonable adjustments. PH: ET decided that S was disabled within the meaning of the EqA At the full hearing, S’s complaints all dismissed. Metroline appealed against the decision at the preliminary hearing. Although Mr Stoute's claims had already been dismissed, Metroline claimed that it had a workforce with a number of people who suffered from Type 2 diabetes, and therefore the appeal was more than just academic. If the original judgment stood, then it could be used by other employees to support an argument that they were disabled. Metroline also argued that the decision was of public importance. Mr Stoute was debarred from participating in the appeal. In the EAT's view, abstaining from sugary drinks is not sufficient to amount to a particular diet which therefore does not amount to treatment or correction."
- Commercial organisations operating in the UK (that is, organisations that supply goods and services from or to the UK and have a global turnover above £36 million) are required to publish a slavery and human trafficking statement each financial year, which sets out the steps they have taken to ensure there is no slavery or human trafficking in their business or supply chains. Transisitonal provisions: the obligation will only apply in each financial year ending on or after 31 March 2016. An organisation can comply by stating that it has taken no steps during the financial year to ensure that their business and supply chains are free of slavery and human trafficking. This could lead businesses to be subject to closer scrutiny and public pressure to comply. There is no prescribed form for such a statement. Suggested inclusions are: The organisation’s structure, it’s business and its supply chains It’s policies relating to modern slavery and human trafficking Its due diligence processes in relation to modern slavery and human trafficking. The parts of its business and supply chains where there is a risk of slavery and human trafficking taking place, and the steps taken to manage that risk. Its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate. The training about slavery and human trafficking available to its staff. If the organisation has a website, the statement must be published don their If there is no website, it must provide a copy of the statement to anyone who makes a written request for one within 30 days of receipt of a request
- From 26 May 2015, English apprenticeships have replaced apprenticeships under the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA) in England. Transitional provisions: Existing apprenticeships made under ASCLA (prior to 26 May 2015) are unaffected and the old statutory regime under ASCLA will continue to apply. Apprenticeships entered into on or after 26 May 2015, in sectors where there is no approved apprenticeship standard and the apprenticeship takes place under an apprenticeship framework, are also covered by the old statutory regime. Apprenticeships entered into on or after 26 May 2015, in sectors where there is an approved apprenticeship standard, are covered by the new regime A list of the apprenticeship standards are available on the government’s website. An approved English apprenticeship will take place under an "approved English apprenticeship agreement" or will be an "alternative English apprenticeship" and, in each case, must satisfy conditions to be specified in regulations to be published by the Secretary of State. Such schemes will still be classed as contracts of service. Conditions: Must be in a sector for which the Secretary of State has published an approved apprenticeship standard. Must provide training in order to assist the apprentice to achieve the approved apprenticeship standard in the work done under the agreement. Must satisfy any other conditions specified by the Secretary of State in regulations
- In September, G/mnt published tribunal statistics for March 2014 - April2015. Drop in claims continues since introduction of fees.
- CA dismissal Held, mere fact that level of cases had dropped since introduction of fees not enough, concrete evidence needed showing people had been prevented from bringing cases due to fees. Lord Justice Underhill did state there was a “strong suspicion that so large a decline is unlikely to be accounted for entirely by cases of “wont pay” and that it must also reflect at least some cases of “cant pay”” Fees review In June, G/mnt began post introduction review of fees by announcing terms for reference, but not report has been issued. In November, the House of Commons Justice Committee heard evidence on the impact of the introduction of employment tribunal fees. The vast majority of the published responses expressed concerns about tribunal fees, including that their introduction has restricted access to justice for claimants and reduced the number of meritorious as well as vexatious claims.
- On 15 July 2015, the government published a new Trade Union Bill 2015-2016 (the Bill) proposing amendments to the Trade Union and Labour Relations (Consolidation) Act 1992. As of 12 January 2016: Bill has passed through the house of commons and went through a second reading in the house of lords on 11 January 2016. The committee stage (a line by line examination of the bill) is yet to be scheduled. The Bill aims to reform various aspects of the law on industrial action and trade union obligations and activities. The proposed reforms include increasing ballot thresholds, extending the notice of industrial action required to be given to employers and a new expiry date for action to be taken following a ballot. The Bill would also introduce more stringent requirements for unions to supervise picketing. Ballot thresholds Currently, a strike or other industrial action will be unlawful unless at least 50% of trade union members who responded to the relevant ballot voted in favour of the action. The Bill proposes an amendment to introduce the additional requirement that at least 50% of all eligible members must have voted. The number of people voting includes those who return spoiled or otherwise invalid ballot papers. For those in important public services, industrial action will only be allowed where 40% of eligible members have voted in favour. Ballot results Currently, members are informed of how many votes in a ballot there were in total, how many people voted in favour and how many against the industrial action, and how many were spoiled. The new amendments would mean that members would also be told of the number of individuals entitled to vote and whether or not the number of votes cast was 50% of the entitled members. Notice requirements for industrial action Notice given to employers of industrial action would be increased from seven days to 14. Expiry date of industrial action Currently, provided that industrial action is started within a four-week period, there is nothing to prevent a union from suspending and restarting action in reliance on the original ballot, provided that is the same industrial action. The Bill introduces a new four-month time limit after a ballot in which strike action must take place. Supervision of picketing The Bill proposes new fairly detailed requirements for picketing. A failure to comply will make the picketing unlawful and therefore actionable in tort. The union must: Appoint a person, who is "familiar" with any codes of practice dealing with picketing, to supervise the picketing. Take "reasonable" steps to inform police of the supervisor's name, where the picketing will take place and how to contact the picket supervisor. Provide the supervisor with a letter stating that they are authorised to act as such. The supervisor must: show their authorisation letter from the union to anyone who reasonably asks to see it, including the police. Be present at the picketing or readily contactable and able to attend at short notice. If present at the picketing, wear a badge, armband or anything else which could identify them. Facility time The Bill proposes a new definition of "facility time" to cover the different types of time off which a union official can take. Some public sector employers may be required to publish information about facility time. The information would include things like the number of union officials the employer has and the amount of time spent by union officials on facility time.
- The apprenticeship levy will come into effect in April 2017. · It will be payable by employers across all sectors in the UK at 0.5% of paybill. · All employers will receive an annual allowance of £15,000 against the levy, in effect making the levy payable only to the extent that the employer's paybill exceeds £3 million per year. · This means that fewer than 2% of employers will pay any levy at all. · Connected employers, such as a group of companies, will only receive one allowance. · Paybill will be calculated based on total employee earnings but not including benefits in kind. · Funding for training will be accessible to all employers in England via the Digital Apprenticeships Service. Employers who pay the levy will be able to access more funding than they have put in, through government top-ups. · However, levy funding which is not used within two years will expire, making it available for other employers. · Apprenticeships are a devolved matter in Scotland, Wales and Northern Ireland. Employers in the whole of the UK will have to pay the levy but the government is liaising with the devolved administrations over their arrangements for giving employers access to the funding. · Legislation to allow the imposition and collection of the apprenticeship levy will be introduced in the Finance Bill 2016.
- National Living Wage A premium added to minimum wage for all workers aged 25 and over. Set at £7.20 which is the over 21 national minimum wage rate of £6.70 applicable plus a premium of 50p. The government expects the National Living Wage rate to rise to over £9 by 2020. Increase equates to a £1,200 increase per year for a full-time worker who is currently on the NMW. The National Living Wage is being introduced because there are more people in the UK on low pay compared to other advanced economies. Around one in five UK workers is low paid, compared to an average of only one in six among the other 33 Organisation for Economic Co-operation and Development (OECD) countries The Office for Budget Responsibility has predicted that 60,000 will lose their jobs as a result of the changes. George Osborne has stated that xix million people will benefit. Low Pay Commission will then be tasked with deciding how the National Living Wage will reach the target of £9 by 2020. Measures to ‘balance’ the increased wage costs: reductions in corporation tax (20% to 19% in 2017, and 18% in 2020) and reductions in the national insurance contributions paid by employers. Smaller businesses could expect to see an increase of between 1 – 1.5% in their wage bill, with those operating a straightforward employment model being impacted the most. National Insurance Contributions From April 2016 employers of apprentices under the age of 25 will no longer be required to pay employer NICs on earnings up to the Upper Earnings Limit (£825 per week, £42,380 per year) for those employees.
- Government are required to make regulations by 25 March 2016 which will require all employers with at least 250 employees to publish information about their gender pay gap. Regulations not published yet.
- Immigration Bill 2015-16 Received second readings in the House of Lords on 22 December 2015 Next stage: committee stage scheduled in the House of Lords for 18 January 2016 The Bill contains proposals to curb illegal working and protect the exploitation of migrant workers. Proposes to: Extend the existing criminal offence of knowingly employing an illegal migrant to apply where an employer has ‘reasonable cause to believe’ that a person is an illegal worker. Conviction would increase from two years to 5 years. Create a new offence of illegal working which will enable the earnings of illegal workers to be seized. Give the secretary of state the power to introduce an ‘immigration skills charge’ on certain employers who sponsor skilled workers from outside the EEA, to address the current gap in the UK workforce Require public authorities to ensure that public sector workers in customer-facing roles speak fluent English. Guidance is to be provided in a code of practice which the government has consulted on. Draft appears on gov.uk. Consultation closed on 8 December 2016 and feedback is currently being analysed.