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 at....www.danielbarnett.co.uk

[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 website....www.pmhrc.co.uk

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  , see......www.danielbarnett.co.uk.


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.......... http://www.peoplemanagement.co.uk/pm/articles/2012/03/jubilee-break-poses-potential-holiday-headache-for-hr.htm?area=pm              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 Murray...letterfromchiapas.blogspot.co.uk

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............http://www.primebusinessclub.com/help/welcome

Tuesday, 13 March 2012

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

 
News

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 http://www.hrmagazine.co.uk   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   http://www.personneltoday.com/articles/2012/03/07/58403/osborne-hints-at-no-fault-dismissals-for-small-businesses.html         Forgive me for being cynical,  but I suspect this is just more political waffle!  

Monday, 5 March 2012