Friday, 29 August 2014

TUPE exemption for micro-businesses now in force

TUPE* protects employees when the business or undertaking they work for transfers to a new
employer.  Where TUPE applies employers must inform and (in certain circumstances) consult with employees via ‘appropriate’ representatives.  This will be trade union representatives if there is a recognised trade union, and otherwise either suitable existing employee representatives or new ones specially elected for the purposes of the transfer.  Failure to comply with these obligations can result in compensation of up to 13 weeks’ uncapped pay for each affected employee.
Following a consultation last year, the government decided to relax the information and consultation obligations for small businesses, with the change taking effect yesterday – 31 July 2014.
For TUPE transfers taking place on or after 31 July 2014, micro-businesses (those with fewer than 10 employees) can inform and consult directly with individual affected employees so long as there are no existing appropriate representatives (i.e. no recognised trade union or suitable existing employee representatives) and the employer has not invited the employees to elect representatives.
Despite requests during the consultation process, the exemption does not extend to larger workforces, even if fewer than 10 employees are affected by the transfer.

our thanks to Kathleen Morrison  at  BRODIES  for this    read more

Thursday, 28 August 2014

Shared parental leave regulations will come into force on 1 December 2014

Shared parental leave regulations will come into force     
on 1 December 2014 and mean that working couples with babies due on or after 5 April 2015 will be able to share leave and pay, provided each parent qualifies for leave and pay in their own right. Similar rights will apply for adoption   

My Comment:  This simply marks the inexorable march of employment rights, industry commentators have said the take up will be slow, as the loss of the major family income would be a burden. (partners would only be able to claim SSP).                

Must an employer adjust redundancy scores for disabled employees?

Yes, according to the Employment Appeal Tribunal in the case of Dominique v Toll Global Forwarding Limited, even though the end result of dismissal would have been the same.
Mr Dominique was disabled and had previously suffered a stroke. As a result, he frequently made mistakes at work and generally struggled with computers.
Mr Dominique was selected for redundancy on the basis of his poor productivity and accuracy; their selection criteria.
Mr Dominique brought claims for unfair dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments to the selection criteria applied to him.
The EAT decided that the productivity and accuracy criteria placed Mr Dominique at a substantial disadvantage, and would therefore warrant a ‘reasonable adjustment’ for discrimination to be avoided. A reasonable adjustment would have been to adjust the scores. The employer had not taken this step, and they were therefore liable for discrimination.
Implications for businesses
This case really does highlight the fact that an employer should give full consideration to all reasonable adjustments to ensure that its redundancy process is not discriminatory. Of course, this does not mean automatically putting disabled employees to the top of the group.
My Comment   As I 've said before,   always take advice, consider your options, before you make any decisions on an employee.

When being asleep on the job counts as working time

Paramedics ‘shackled’ to their place of work while on call were entitled to compensatory time off
It is not uncommon for employers to have staff ‘on call’ – in other words, available at all times to deal with any emergencies. Over the years case law has developed to give protection to employees who spend regular amounts of time on call, especially with regard to ensuring they receive adequate rest periods in compensation.
Recently, courts have focused on the issue of whether employees who are on call and required to be present at a specific location, but who do not have any tasks to perform and often spend the time asleep, are working within the meaning of the Working Time Regulations 1998.
A recent case, Truslove v Scottish Ambulance Service, concerned two ambulance paramedics. Sometimes they were required to provide nightly relief cover at different ambulance stations, away from their home base. During this time, the paramedics were required to stay at accommodation of their choice within a three-mile radius of the relevant station as they had a target response time to call-outs of three minutes. The location of the stations meant they couldn’t stay at home. The paramedics claimed this on-call time was working time within the meaning of the regulations and that they were entitled to a rest period in compensation.
The employment judge considered the difference between being on call but free to be in any location, and being on call but confined to a specific location. The judge held that because the claimants in this case were not confined to one location, they were at rest when on call and the periods spent on call did not, therefore, constitute working time for the purposes of the regulations. The claimants appealed.
The Employment Appeal Tribunal looked carefully at the case law in this area and held that the tribunal had been wrong to find that the paramedics were at rest while on call.
The EAT noted that case law provides that the focus should be on whether the place where the employee happened to be when on call was where the employer required that employee to be. If employees are required by the employer to be away from home, for example, or even to remain at home or within a very close distance from the workplace, the time spent during this period is not wholly their own - it is under the control of the employer. The relaxation available during genuine rest periods is, therefore, unavailable when employees remain ‘shackled’ to a particular location and under an obligation to provide a response to their employer’s requests.
The EAT held that, in this instance, the fact that the paramedics lacked the freedom to be anywhere other than within a three mile radius of the station was the determining factor in whether their on-call time was working time. It allowed the appeal.
This case is the most recent in a line of cases focusing on the status of on call workers, with the courts and tribunals widening the scope of ‘working time’ further on each occasion. The fact that the EAT referred to the employees as being 'shackled' (even if they were, for example, in the cinema) is an indication of the approach taken in these cases.
Employers need to consider carefully the restrictions they place on employees while they are on call, even if they are not required to remain at one specific location. It is clear that the courts will take any infringement on an employee’s rest period seriously and may require further remuneration and/or compensatory rest periods to be provided in relation to any on-call periods.
My Comment:      Well of course they're at work,  I'm only surprised that this has to be debated, if an employer is paying someone to "be available",   then they're working.  If that employee fails to respond when called,   say,  gone to the pictures, got drunk,  they would be disciplined, which means they're at work!

Health visitor convicted for theft, battery and dangerous driving, wrong to dismiss her?

Was there a failure to make reasonable adjustments in dismissing a health visitor following her conviction for theft, dangerous driving and battery?

No, held the EAT in Howorth v North Lancashire Teaching PCT.             

Mrs Howorth had been suffering from mental illness and pleaded guilty to the offences despite apparently suffering from automatism at the time they were committed. The employment tribunal found that the Trust's failure to consider alternatives to dismissal was a failure to make reasonable adjustments. At the remedies hearing, it then found that no adjustment could have succeeded in keeping Mrs Howorth in work. The EAT found that there was an error of law. Given that no adjustment could have succeeded, there was no failure to make reasonable adjustments.

Mrs Howorth also claimed discrimination arising from disability for the Trust's refusal to re-employ her as a health visitor following her application for another post. This claim failed, on the basis that the Trust was not required to ignore the conviction given that this was a clinical job and enhanced vetting applied. The EAT upheld the employment tribunal's original decision on this point.
My Comment    This case just goes to prove, as an employer you must not assume you are doing the right thing because it's common sense or obvious!      Even though they won their case on appeal,   this will have cost the PCT  thousands in legal fees.

Monday, 4 August 2014

Employment Law Newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser
Hello  <<First Name>> ,
 Where I am, in West Yorkshire,  we are having a long hot summer, most of the country seems to be, I do hope you've been able to take some time to enjoy it. I'm not a sports fan, but I did enjoy Wimbledon,  the Tour de France in Yorkshire, the Commonwealth Games, and the present Mrs Murray enjoyed our trip to the Tatton Flower show!    Meanwhile, of course,  industry plods on, although this month, the only gloom is the news that the Advocate General (a bigwig European Judge) has declared that obesity may well be a disability.         Forgive me, but God help us, do we really need another protected group who will have the right to sue their employer?              I don't think so!    Grrrr.          Read on for details, and, as always, call me if you have any concerns about this edition's content.

Kind regards,     Paul 


Does obesity qualify, without more, as a disability?  If yes, then the duty to make reasonable adjustments might include employers having to provide bigger chairs and desks, car parking spaces near the front door, and duties involving less mobility.       read more  ....

My Comment :      No, No, and thrice No.    This week I was talking to a client who had been advised that his short serving employee, still within his probation period, who had already been put on a PIP, was unsafe to terminate, because at his appraisal meeting he'd said (when asked about his lack of progress) "I think I might have a bad back"  This, from an insurance backed so-called advisor, terrified of a claim!    Just imagine if this guy had been overweight as well!  

Newsflash:   Tribunal rules dismissal of shop worker who called colleague a “whore” on Twitter fair The Courier reports a tribunal case in which a shop assistant who called a colleague a “whore” on Twitter was found to have been fairly dismissed.
My Comment:  This is a case where the quality of procedures  paid dividends,  other cases like this have fallen and been ruled unfair because of poor drafting of policies and application of procedures.

Counter offer City trader’s redundancy “procedurally unfair”, finds tribunal A Morgan Stanley trader, who was made redundant following negotiations for a counter offer after receiving another job offer, has failed in his employment tribunal attempt to recover £1m from his former employer, reports the Recruiter
My Comment:  this is a little out of our usual sphere, but again underlines the importance of proper/robust procedures,  you might glean a crumb of comfort in learning that he actually got only £70k (the maximum at tribunal) and then of course he would have had to pay his legal team from this,  average 40% ?      Makes your heart bleed doesn't it?

ConvaTec Limited: Factory worker subjected to campaign of racial abuse and discrimination

AN Indian factory worker who was subjected to a lengthy campaign of racial abuse and discrimination has been awarded more than £52,000.
An employment tribunal found that management at the ConvaTec Limited plant on Deeside Industrial Park not only failed to carry out proper investigations into 45-year-old Chand Singh’s complaints but penalized him for going off sick when redundancies were later being sought.


And finally tonight !   Auto enrolment is upon us............ 

    Well,   it's no longer a distant  "something for the future" to think about.    Even some of my smaller clients are now having to make their arrangements to firm up.  If you have yet to do anything about this, or are on the cusp, but still figuring out how to manage,    read on  !   A professional associate runs CAMS  (Computer Aided Management Services) they are SAGE partners and are rolling out a SAGE pensions module.
 CAMS  are hosting a free seminar at their HQ in LEEDS on Wednesday 3rd. SEPTEMBER 2014,    1:30 - 4:30. 

These free  spaces are limited, so you must pre book your place,  go to this link for your  e-invitation

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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 296,     Engineer not allowed to climb stepladder for health & safety reasons:    
The enquirer was left dumfounded when an electricity engineer refused to replace his meter because he was not allowed to climb a stepladder!
CASE No. 297   Barefoot customer banned from supermarket: 
Enquirer had a swollen foot making it painful to wear footwear and was struggling to walk. The doctor recommended buying some frozen peas to help with the swelling. However, on their way home from Accident & Emergency and entering a supermarket store without shoes on they were told by the security guard that they could not enter the store because 'one, there's food and two, it's health and safety'. Enquirer questioned what exactly he meant but was told it was 'just his job'..

Friday, 1 August 2014

Holiday pay back in court

Holiday pay back in court

29 Jul 2014
alone on a beachBy Emma Perera  see the article at Lewis Silkin’s site

Starting tomorrow, the Employment Appeal Tribunal (EAT) will consider a significant issue – whether UK rules on calculation of statutory holiday pay should be amended in light of EU case law to include overtime. The EAT’s decision, together with the outcome of another case currently before the employment tribunal concerning commission, could have huge financial implications for many businesses. What is the legal position and what should employers be doing now?
The EU and UK provisions
The EU Working Time Directive (2003/88/EC – “the Directive”) provides that member states must ensure that workers have the right to paid annual leave of at least four weeks per year. In the UK, this right was implemented via the Working Time Regulations 1998 (WTR) which granted workers four weeks’ holiday per year – we’ll refer to this as “EU statutory holiday”. In 2009, UK workers were granted an additional 1.6 weeks’ statutory holiday per year under the WTR. Many employers also offer contractual holiday over and above these statutory entitlements.
The Directive does not specify how pay for EU statutory holiday leave should be determined. The WTR state that workers should be paid a “week’s pay” for each week of leave calculated in accordance with the Employment Rights Act 1996 (ERA). The ERA provisions have, to date, enabled employers to calculate EU statutory holiday pay based on basic pay only, excluding other payments such as commission and overtime.
Recent cases
Recent case law suggests, however, that there may be a conflict between the Directive and the WTR in relation to the calculation of EU statutory holiday pay. In the 2011 case of Williams v British Airways plc [2011] IRLR 948, the European Court of Justice (ECJ) determined that the Directive requires workers to receive their “normal remuneration” for EU statutory holiday pay. The ECJ said this includes payments “intrinsically linked” to the performance of tasks which workers are required to carry out under their contract of employment.
In Lock v British Gas Trading Ltd [2014] IRLR 648, the ECJ (applying the principles set out inWilliams) stated that EU statutory holiday should include commission as it was intrinsically linked to the work done and formed part of “normal remuneration”. The case has now been referred back to the Leicester employment tribunal to assess whether the WTR can be interpreted in line with the ECJ’s decision.
Separately, there have been several employment tribunal cases relating to whether EU statutory holiday pay should include certain other additional payments, including overtime. Two cases -Fulton v Bear Scotland Ltd and Wood v Hertel (UK) Ltd - are due to be heard in the EAT on 30 and 31 July and 1 August 2014 with judgment expected in a few weeks’ time. A number of other cases have been withdrawn, presumably because they have settled, including the well-publicised case ofNeal v Freightliner Ltd.
Potential implications for businesses
A change to the way EU statutory holiday pay is calculated would have huge financial implications for many businesses. Not only would ongoing annual staffing costs increase, but employers could face claims in relation to previously underpaid holiday pay.
It is possible that employees may be able to claim there has been a chain of unlawful deductions in relation to EU statutory holiday pay.  That could mean they can claim back-pay going as far back as 1998, potentially including interest as well. Further, employees and ex-employees may attempt to recover back-pay by bringing a breach of contract claim. The issue of back-pay has even led to speculation that some employers may be forced out of business.
There may also be future and retrospective implications for pensions (if holiday pay is included in pensionable earnings) and/or bonuses (e.g. if bonuses are based on a percentage of pay including holiday pay).  In addition, entitlement to EU statutory holiday pay applies to workers, not just employees, so employment agencies may seek to negotiate contracts passing any additional holiday pay costs they are incurring to their clients. This could have a significant impact on businesses that regularly use agency workers.
Financial costs could be particularly acute for businesses where TUPE transfers are commonplace. It may be harder to establish the extent or validity of retrospective claims in relation to recently inherited employees. Businesses may have no choice but to commence and defend legal claims under indemnities to limit the extent of their liability (if possible).
Next steps
It is not clear when employers will have definitive answers to the questions surrounding calculation of holiday pay.  The Fulton and Wood cases may settle following the EAT’s judgment, which would then be binding law until challenged. Alternatively, any final decision may take some time if there are further appeals or a referral to the ECJ.
In any event, it is likely that publicity in relation to this issue will increase over the coming months with the result that employers may, at the very least, have to respond to questions from employees and unions. A number of “no win no fee” law firms are already showing an interest in this area of law.
Some employers are choosing to respond immediately.  It has been reported that the John Lewis Partnership settled a holiday pay dispute by making payments going back six years only.  The fact that certain tribunal cases have been withdrawn suggests settlements have been reached in those cases too. However, settling potential claims now would not be appropriate for many employers – not least because it is unclear as yet how (if at all) holiday pay calculations will need to change.
Another option employers could explore is to limit any past liability by breaking the chain of any alleged unlawful deductions, but commercially this may not be an appealing option for many employers. In any event, the legal issues are complex and specific professional advice should be sought before taking action of this kind.
Such is the concern about this issue, that businesses and employers’ organisations are actively lobbying the Government to take steps to restrict the impact on business, particularly regarding back-pay.  The Government intervened in the Lock case at the ECJ and we understand it is doing so again in the Fulton and Wood cases. However, it has yet to state how it would respond if the courts were to determine a change in the law is necessary. If you would like to communicate your views to the Government on how this would impact your business, please let us know as we are actively engaging with them on this issue.
While many employers are taking a “wait and see” approach in terms of the law, it would be prudent for businesses to undertake an audit of their current arrangements at this stage, in particular to establish any potential financial exposure. For some businesses, a broad assessment may be suitable at this time. For others, particularly those who pay overtime and/or commission to a large part of their workforce, a more detailed analysis may be appropriate.

Does Illegality Defeat Discrimination?

Should the defence of illegality defeat a discrimination claim?
No, said the Supreme Court in a judgment handed down in the case of Hounga v Allen and another.
Miss Hounga, a Nigerian national, participated in a plan hatched by members of the Allen family to secure her illegal entry to the UK. Once in the UK, Miss Hounga, who was 14 at the time, commenced working illegally for Mrs Allen as a housekeeper/au pair. She had been promised a wage of £50 per month and the opportunity to go to school. However, over a period of two years, the promised wage and education never materialised and instead Miss Hounga was met with “physical and verbal abuse”, eventually being thrown out of the house. She was rescued by Social Services and commenced tribunal proceedings for breach of contract, unpaid wages and race discrimination. Her claim for race discrimination was on the basis that her dismissal was an act of race discrimination on grounds of her nationality.
The Employment Tribunal (‘the tribunal’) found that the defence of illegality precluded Ms Hounga’s claim of unpaid wages, amongst other claims, which were based on her contract of employment. However, the tribunal upheld her claim of unlawful discrimination in relation to her dismissal and awarded her compensation for injury to feelings.
The Employment Appeal Tribunal (‘EAT’) upheld the tribunal’s decision but the Court of Appeal did not. The Court of Appeal held that the illegality of the contract of employment formed a material part of Miss Hounga’s complaint and that to uphold it would be to condone the illegality. Miss Hounga, supported by the Anti-Trafficking and Labour Exploitation Unit, appealed against the decision.
The Supreme Court said that where “the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct” . The idea of the test is rooted in public policy in that it would not be in the public interest to allow someone to bring a claim arising out of their own illegality.
However, the Supreme Court felt that a balancing act was necessary in considering public policy and that whilst it would not be in the public interest to allow a claimant to bring a claim based on his own illegality, on the other hand, it could also encourage those in the positon of Mrs Allen to enter into illegal contracts. In fact, according to Lord Wilson, it might “engender a belief that they could even discriminate against such employees with impunity.”
Therefore, as a matter of public policy, to allow a claim such as Miss Hounga’s would not compromise the integrity of the legal system or amount to the court condoning the illegality. Lord Wilson also had regard to the UK’s international obligations regarding human trafficking and the strain of current public policy in favour of the protection of its victims.
The Supreme Court went on to hold that on the facts of this case there was no ‘inextricable link’ and as such the defence of illegality failed. Whilst Miss Hounga was aware and indeed participated in the illegal employment contract that was no more than “the context” in which Mrs Allen went on to perpetrate the acts of physical, verbal and emotional abuse, by which, among other things she dismissed Miss Hounga.
In considering whether an individual’s participation in an illegal contract merely forms part of the ‘context’ within which the discrimination takes place or is ‘inexplicably linked’ to the discrimination, the  Supreme Court has curtailed the extent of the defence of illegality in discrimination cases and it will now be more difficult to establish the defence.
This is very likely to fit with the current public sentiment and policy given the recent increase in cases coming before the courts involving human trafficking and ‘modern slavery’. At the very least, it will mean that traffickers who mistreat their victims on the grounds of race, sex or disability, for example, will not be able simply to walk away from liability if faced with a tribunal claim.
Our thanks to the excellent Crossland Solicotors  site for this piece.