Thursday, 2 August 2012


My daughters blog, makes compelling reading, don't be put off please by the opening paragraph in Spanish,  (she has an international following) read's in English further down.  it seems,  that in Mexico, if you're a/ a journalist    and b/ a woman,   you're in for a hard time if you comment in any way that is not approval of the "party line" !     Can you imagine any of our Express/Daily Mail/Guardian/Independant  journo's  being "disapeared" ?     Good old Douglas Fairy ( remember him, Weekend Magazine, "The Sound and the Fury" ?  1960's)     he would have been hung drawn and quartered 

Thursday, 26 July 2012


If you have a minute,  read the following,  we will all now refer to "Larner"  when asked about LTS employees carrying over unused holidays,  it appears.....yes thay can!     I despair!   when is this government  (actually, ANY government ),   going to actually DO anything about our employment laws,    last month I raged about the TUPE regs,  now this has added to the burden that business must carry,   at a time when it can least afford to do so.  


Landmark Court of Appeal Ruling confirms employee on long-term sickness absence can carry annual leave forward into the next holiday year

David Woods, 26 Jul 2012
The Court of Appeal this week confirmed an employee on long-term sick leave was entitled to carry her holiday forward to the next holiday year, even though she had not asked to do so.
In the case NHS Leeds v Larner Larner had been employed to work at NHS Leeds for 20 hours per week and her terms and conditions stated that she would accrue annual leave during sick leave but that it could only be carried over in exceptional circumstances.
The leave year ran from 1 April to 31 March. Larner went off sick on 5 January 2009 and on 6 April 2010 NHS Leeds dismissed her and informed her that "a payment in lieu of notice and any outstanding leave will be made to you".
Larner brought an employment tribunal claim for unpaid holiday pay under the Working time Regulations 1998 because NHS Leeds hadn't paid for holiday leave that had accrued in the 1 April 2009 to 31 March 2010 holiday year. NHS Leeds argued that as no holiday requests were made, and the employee did not ask to carry the leave forward, the annual leave was lost at the end of the 2009/2010 holiday year. It therefore did not have an obligation to "buy out" that leave at the end of Mrs Larner's employment, as would usually be the case.
However, the Court of Appeal has found that Larner was entitled to be paid for the annual leave, which she had no opportunity to take because of her illness, even though she never actually requested any specific holiday. The holiday carried forward to the next leave year automatically.
The decision resolves a conflict between two decisions of the Employment Appeal Tribunal (EAT) in 2011. The EAT decided in Larner that the entitlement to be paid for accrued but untaken leave from an earlier leave year is not dependent on the employee having to submit a request for the leave before the end of the relevant leave year. However, a later decision in Fraser v South West London St George's Mental Health Trust found that an employee could only carry leave forward if he or she asked to do so. The Court of Appeal has now confirmed the approach taken by the EAT in Larner.
Chris Wellham, Of Counsel in the employment team at Hogan Lovells, said: "Allowing long-term sick employees to carry leave forward automatically and to be paid for all the leave that has accrued on termination of employment could be very costly for employers. This opens the way for employees on long term sickness absence to claim holiday pay for the whole period of their absence when their employment terminates. For an employee who has been absent for two leave years for example, this could represent nearly three months' pay.
"A number of ECJ cases make it clear that legislation can limit the period for which carry-over is permitted. Although the Modern Workplaces consultation that took place last year suggested that the Working Time Regulations could be amended to introduce a limit, we are still waiting for the outcome of that consultation. Clarification of this aspect of the Regulations would be a good fit with the Government's desire to reduce burdensome regulation and costs for businesses."

Kate Hodgkiss, partner in DLA Piper's employment group added: "Employers have been wrestling with the impact of sick leave on holiday entitlement for some considerable time. The headaches for employers have been caused by a number of ECJ judgments which directly conflict with the provisions of the UK's Working Time Regulations 1998 (WTR). The stand-off between ECJ case law and UK legislation has led, in turn, to conflicting decisions in the UK courts.
"Today's judgment from the Court of Appeal on the NHS vs. Larner case clarifies this issue and confirms that employees do accrue holiday while on sick leave. If employees are prevented from taking that holiday because they are sick they can carry it forward. Importantly they do not have to make any request to do so and employees who are unable to take their carried-forward holiday before their employment terminates are entitled to be paid in lieu of it. The court has made it clear that the WTR must be read in such a way as to give effect to these findings.
"Employers must now start to think about how they can manage these issues in practice. This will include reviewing contracts of employment and policies and procedures to minimise holiday liabilities as much as possible. Employers should consider, for example, tightening up the drafting of their employment documents to make it clear that carry-forward applies only to statutory holiday (possibly restricting this to four weeks) and not any enhanced contractual holiday. Employers should also have clear provisions stipulating that statutory holiday will be deemed to be taken first so that if any holiday has already been taken by an employee they will have less to carry over in the event that they are unable to take all their holiday at a future date because of sickness.
"As part of its "Modern Workplaces" consultation, the Government is considering amending the WTR to make the law clearer and to resolve the current conflicts with the case law. A response to this consultation is awaited but Larner will surely lend support to the case for detailed amendments to the WTR in relation to carry forward of leave."

My Grateful thanks to those nice people at HR Magazine for always producing good copy, visit their site at

Wednesday, 18 July 2012

sunflowers vs bougainvillea.....discuss !

I was sent this interesting blog by my daughter, the anthropologist  ( ),   it's heavy going, for me,  but do press on, it's about presenting argument in a way that's understood by your audience,   not just the cognicenti

Thursday, 5 July 2012


It seems as Rangers is wound up,  the IP  is setting up a "Ranger Newco"   about as cleart a TUPE  as you could wish for,  Chaps, it is without doubt a TUPE transfer, asuming all the players are employees (and of course ground staff) There will be admin IP's who consider assets, creditors etc, like any other business, for that's what it is, if the players are so daft as to refuse to allow the transfer of their contracts, (which they are entitled to do) they will have resigned and kissed goodbye to any financials, Known affectionately as "The Katsikas Principal"  but the players appear to be saying they won't transfer !!      Hmmmmm,    I wonder   who's  advising  them ?

Wednesday, 4 July 2012

This taking down of Twitter / linkedin seems a bit of a bother!


Colleagues, don't forget "organised group of workers" can be just one person (see SUZEN) so two, with a defined task, definately is! As groundsmen their activity is not one of "personal service" (like a carer or nurse) and that would have been the only exception to TUPE. Further, it is of no consequence that the building is a private residence, that's a red herring, these chaps are "employed" for a defined task, which, from the information given, looks likely to continue, and to be done by someone. This walks like a TUPE, makes a noise like a TUPE and looks like a TUPE. Do you really want to drop the new owners in to it ? My considered advice, is get the present owners to terminate with a compromise agreement, following proper consultation etc, just to tick the boxes as it where, and pay out what whatever the "normal" redundancy package would be, in fact, enhance it a bit .

Monday, 14 May 2012



Proposed changes to employment regulations have been announced in the Queen's Speech, confirming widespread speculation that such measures would be included.
Outlining the Government's plans for the year ahead, the Queen said that economic growth was a key focus for reform. As part of this, it was announced that: "Legislation will be introduced to reduce burdens on business by repealing unnecessary legislation."
The Enterprise and Regulatory Reform Bill includes a number of measures that the Government says will facilitate business growth by giving employers more confidence to hire new staff. One of these proposals is an overhaul of the workplace dispute resolution system, which, according to the bill, will facilitate the earlier resolution of disputes via a "more efficient and streamlined tribunal system for all users".
The Bill's text says that this will be achieved by encouraging "early conciliation", where all claimants would lodge details of their claim with Acas, giving parties the opportunity to engage in conciliation and renaming compromise agreements as "Settlements".
The Bill also includes a commitment to "simplifying the regulatory system and giving confidence to business that they will not be held back by outdated and unnecessary legislation".
In addition, the Bill includes proposals on executive pay, such as handing more power to shareholders and remuneration committees to set executive pay and relating it more closely to business performance.
Also announced in the Queen's Speech, the Children and Families Bill includes reforms that will have implications for HR. It will allow parents to swap their parental leave following the birth of a child, and mothers will be allowed to return to work earlier following maternity leave by transferring remaining time off to their partners.

As I've often said before,    call me an old sceptic,   but I won't be holding my breath for any substantial impact on employment just yet,      Sorry Ma'am !

My thanks to those nice folk at Personnel Today ...............for their always excellent information and opinion   see them  at ......

Tuesday, 24 April 2012

Wednesday, 18 April 2012

I don't normally do good causes, but,  on this occasion I think this one deserves support.  have a look at this,  group of youngsters a chance to represent UK.

Tuesday, 3 April 2012

TUPE: Substantial Change in Working Conditions


If the government were serious about making employment legislation more user friendly, they really should start with the TUPE regs.  but then TUPE is not very sexy or newsworthy is it?  Does'nt really make for a good sound-bite I suppose.  Here, a bus company bought out a bus route, operationally needed to run the vehicles from it's own depot (fair enough!)  ,we can accept that the staff didn't like having to travel further to work, but that doesn't make an automatic "unfair" dismissal !  How was the bus operator supposed to run vehicles from somewhere they didn't own?     Madness! 

My continuing thanks to Daniel Barnett for his excellent

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can a change of location on a TUPE transfer give rise to a claim for constructive, automatically unfair, dismissal?

Yes, says the EAT (Langstaff P) in Abellio London v CentreWest London Buses.

The 5 claimants in this case worked as bus drivers for CentreWest, which ran the 414 bus route operated from its Westbourne Park depot. This location suited the employees' family circumstances, and where they lived. The route was transferred to Abellio. It intended to operate the route from its own depot in Battersea. It was accepted by the parties that this was a service provision change, and therefore a relevant transfer, under Reg 3(1)(b) of TUPE.

The claimants all had objections to the new location. It affected their travel and domestic arrangements. The new location would mean between 1 and 2 hours extra travelling per day. They resigned. It was held by the employment tribunal that there had been a substantial change to the employees' working conditions to their material detriment under Reg 4(9) of TUPE. The move was additionally a repudiatory breach of contract (in that a mobility clause in the employment contract did not extend to the Battersea location). Therefore the employees were also constructively dismissed for the purposes of Reg 4(11) of TUPE. It followed that the dismissals were automatically unfair, being by reason of the transfer.

The EAT agreed, citing with approval the EAT decision on the same point in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972.

I can help you understand your TUPE risks and exposure,  visit me on

Wednesday, 28 March 2012


TUPE  or Not  TUPE,    that is the question !  

Tupe, or   Not Tupe  that is the question  (again!)
is it or isn't it, once again troubles their Lordships.  This time a "taxi administrater's" dedicated  position was lost when management decided any secretary could book any taxi from anywhere when asked.  It seems obvious to me, and, I suspect "the reasonable man atop the Clapham omnibus",   that the position was lost,  how much did all this legal stuff cost?   Talk about making a mountain out of a molehill !  The employee, methinks, was something of a pawn in someone elses game, I'm willing to bet that he(she) gone nothing out of it all.     My thanks again to the excellent Daniel Barnett's site for this,  see more

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Is there a service provision change under Reg 3(1)(b) of TUPE when the service is conducted in a fundamentally or essentially different manner following the changeover?

No, says the EAT (Langstaff P) in Johnson Controls v UK Atomic Energy Authority, but this is a question of fact in each case and requires an holistic assessment by the employment tribunal.

The claimant was a taxi administrator employed by Johnson Controls, which provided a taxi administration service for its client, United Kingdom Atomic Energy Authority. UKAEA then terminated this arrangement and took the activity of booking taxis in-house. Instead of using a taxi service administrator, it decided its secretaries could book taxis directly with taxi firms. Booking taxis no longer existed as a centralised service.

The Employment Judge held that, as a consequence, the services carried out after the change were essentially different from those carried out before and there was no TUPE transfer. The EAT upheld this decision, applying the guidelines set out by Judge Peter Clark in Enterprise Management Services Ltd .v Connect-Up Ltd (EAT/0462/10). The process of defining the activities involved, and whether they remained the same, involved a question of fact for the employment tribunal, which was to be trusted to make that assessment.

We tend to forget that in 2005 the Government's public consultation document on what became the TUPE Regulations 2006 considered that there should be a relevant TUPE transfer by way of service provision change even where the service is to be provided in the future in a new or innovative manner (see para 27). But, contrary to this aspiration, recent EAT decisions, of which Johnson Controls is the latest, suggest there will be no service provision change under Reg 3 (1) (b) when the service is significantly re-modelled.

Once again, if you need a down to earth opinion on TUPE,   contact me through my

Monday, 26 March 2012

Disputes over TUPE will continue to rage,  will we ever sought it out?   Maybe not, see below, a comment from one of our industry's most eminent commentators.  Taken from that excellent site Daniel Barnett's  ,

TUPE - Organised Grouping of Employees

 Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary] In deliberating whether there has been a service provision change under Reg 3 (1) (b) of TUPE 2006, is it sufficient to say that employees will transfer if, simply, they "go with the work"?
Not so says the EAT in Eddie Stobart Ltd v Morman (Underhill P presiding).
There needs to be analytical distinction between an organised grouping of employees (TUPE, Reg 3 ((3) (a)), on the one hand and, on the other, whether employees are assigned (Reg (4 (1))to it.
ES was a warehousing and logistics service provider. It had 35 employees at one site in Nottinghamshire servicing at least 5 clients. The contracts reduced to two, the principal one relating to Vion. ES closed the site. FJG Logistics Ltd picked up the Vion work. ES took the view that all employees engaged wholly or 50% plus of their time on Vion work should transfer to FJG.
The EAT held that it is necessary to identify an organised grouping of employees in advance of the question of which employees were assigned to it. Here, the employees were "organised" as to their shifts, not as to a particular customer. A paradigm example of an organised grouping of employees would be where there was a particular client "team" dedicated to the client. Such was not the case here.


If you need help understanding TUPE, call me. I've provided opinion and training on this topic for many years.          Paul Murray

Wednesday, 21 March 2012

ADDITIONAL BANK HOLIDAY THIS YEAR ?  do you know how to deal with it?     do you know what your staff's rights are in this ?      call me to find out,    

Jubilee break poses potential holiday headache for HR

Acas warns employers to ‘start planning now’
Acas has urged employers to plan ahead for the extra bank holiday on Tuesday 5 June, which was created to mark the Queen’s Diamond Jubilee celebrations this year.

The organisation, which provides mediation services to employers, said that while the summer date “seems a long way off”, staff will already be making plans for it.

Early workforce planning is particularly important as the last bank holiday in May has also been moved to Monday 4 June to create an extended weekend for festivities.

Employers may find themselves juggling additional leave requests, Acas said, but forward planning would help to avoid last minute request clashes or short-term absences.

Staff do not have a statutory right to take bank holidays, so the announcement of an extra bank holiday does not increase any entitlement to holiday.

But some employee contracts, for example those which entitle a worker to 20 days’ annual leave in addition to all statutory, bank and public holidays, would potentially give the person an extra day's paid holiday. However, this does not apply if public holidays are listed by name in a contract.

There is also no legal obligation to pay employees more for working on a bank holiday and extra pay will depend on terms and conditions in an employee’s contract.

Acas’ national helpline manager, Stewart Gee, said: “For many, the Queen’s Diamond Jubilee is an opportunity to celebrate and with two bank holidays at the beginning of June, employers may receive more requests for time off.

"We’re already getting calls to our helpline from employers seeking advice. It’s important to be as fair and consistent as possible by having a policy on how to manage time off and leave requests, so employees can join in the celebrations and employers can maintain morale at work.”

A number of employers faced heavy criticism last year after some refused to allow staff to take 29 April off to celebrate the royal wedding.

the above from..........              to see full article

Sunday, 18 March 2012

Mothers Day

M0THERS DAY   ,    just a thought for all of us,   My grandaughter was born in Chiapas, Southern Mexico, in a charity run birth centre for local women with no money.  My daughter was there as part of her research for her PhD.    My daughter (Jenna Murray de Lopez)  now writes and blogs on the general topic of motherhood.   Today is especially poignant of course being Mothers Day.   Have a look at her blog.                  regards,   paul

Wednesday, 14 March 2012

Being "veteran" does have value afterall !

FINALLY !   some recognition that "mature" workers,  or in my case "veteran" do have something to contibute in terms of valuable experience!    HRH the prince of Wales is behind the PRIME  business initiative,     God Bless you Sir !

HRH The Prince of Wales, founder of self-employment charity PRIME, photograph by Alan Shawcross
HRH The Prince of Wales, Founder and President of PRIME
The start-up pack contains our Working for Yourself guide, ideas on finding the right business idea and other fact sheets on getting back to work by becoming self-employed. You can find PRIME partners who offer free or low-cost support, business advice or training here or by clicking on the UK map in the right-hand column.
PRIME (the Prince’s Initiative for Mature Enterprise) is a charity founded by Prince Charles. “The experience and skills which people build up over a lifetime are an invaluable resource”, he says. “It is madness for society not to make use of this.”
People of any age can set up in business and work for themselves – but it’s particularly useful for the over 50s as there are not a lot of other options when unemployment strikes. Despite legislation supposedly outlawing age discrimination, older people still face difficulty finding an employer willing even to give them an interview, let alone a job. So getting back into work once you are become unemployed or redundant over a certain age can be a struggle.

read more at............

Tuesday, 13 March 2012

It seems us "seniors" might not be the problem after all !!     phew!


Employers struggle to manage absence among older staff, finds GRiD

Employers remain “broadly positive” to last year’s removal of the Default Retirement Age (DRA) according to research from Group Risk Development (GRiD), the trade body for the group risk industry.
Almost a quarter (23%) of employers questioned believed that removing the DRA would enable them to retain the best talent within the business, with 12% saying it would increase diversity in the workplace.
A further 19% said they had already encouraged staff to work beyond retirement age before the DRA was removed.
Managing absence levels among older workers emerges as the only significant issue marring employers' enthusiasm for reform. The research shows that 17% of companies are worried about their older workers being fit and able to do the job, whilst 11% believe it will drive up sickness absence costs with knock on impact for the whole team. A further 8% said they were worried about managing the capability process (performance management/appraisals) fairly.
Katharine Moxham, spokeswoman for GRiD, said: "Older employees can bring so much in the way of experience, confidence and mentoring skills to a business so it's great to see employers recognise the benefits of an 'ageless' workforce. But as our survey demonstrates, one potential bone of contention is absence management.
"Put simply, businesses fear that older workers are more likely to be sick than their younger colleagues and will have less incentive to return to work. It's for this reason that the group risk industry worked with Government to ensure that businesses can take the same practical approach as the State does with working age benefits (which cease at State Pension Age)."

My thanks to HR Magazine see full article on   by David Woods.

Friday, 9 March 2012

Draft regulations for increasing the unfair dismissal qualifying period published
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 has been published in draft form. As previously predicted, the order increases from one year to two years the qualifying period of continuous employment needed to acquire the right not to be unfairly dismissed and for entitlement, on request, to a written statement of reasons for dismissal .
      It won't actually make a great deal of difference, it merely puts us back where we were a few years ago,  I suspect some employers will leave it to last minute before deciding someone isn't suitable!!

Thursday, 8 March 2012

More Red tape waffle ?

"Chancellor George Osborne has suggested that compensated no-fault dismissals could be introduced for what he called "the smallest businesses" in an attempt to protect employers' rights"..........see full  article from Personnel Today         Forgive me for being cynical,  but I suspect this is just more political waffle!  

Monday, 5 March 2012