The headline news to start 2014 is that the TUPE Regulations change with effect from the end of January. This follows on from the consultation I have covered in previous Newsletters. The changes are not as dramatic as originally proposed, but they are still significant to anyone who encounters this area of the law. Please take a moment to get a sense of what is new. Beyond that, I offer a gentle introduction to the New Year.
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The Regulations amending TUPE will come into force on 31 January 2014. Please note though that the changes are being phased in so for transfers occurring over the next few months some of the new rules apply and others do not.
The key alterations are as follows.
- A service provision change will only occur where the post-transfer activities are fundamentally the same as the activities carried out before transfer. This may limit the scope of service provision change situations, although the new approach is in line with the way the courts have been
- There will be some flexibility to agree changes to terms and conditions in connection with a transfer, although only if the employee agrees (or the contract terms already permit the change).
- Similarly, there is a relaxation of the restriction on amending terms and conditions which are incorporated into contracts from a collective agreement.
- A dismissal connected with a transfer which occurs solely as a result of a change of location will fall within a permitted 'ETO' reason. This corrects the current anomaly, that if a new business owner wants to relocate staff as a result of a transfer, but otherwise makes no changes to the work force, the staff may all be technically redundant due to the change of location but the dismissals are still automatically unfair under TUPE.
- For transfers from 1 May 2014, employee liability information (core information about employees) must be provided by the transferor to the transferee at least 28 days before transfer, rather than 14 days.
- For transfers from 31 July, an employer with fewer than 10 employees will be able to consult affected employees directly rather than go through the process of electing representatives.
Importantly, the amendments do not:-
- remove altogether a 'service provision change' from what amounts to a TUPE transfer, or
- remove altogether the transferor's obligation to provide employee liability information,
both of which were measures originally touted (and rubbished by many lawyers).
Staying in Westminster, the proposed consultation on zero-hours contracts has been launched and will remain open until 13 March 2014.
No outright ban on such contracts is proposed, but there is much focus in the consultation on 'exclusivity clauses', which prevent workers working for more than one employer, in contracts that offer no guarantee of work. Prohibiting them is one identified way forward, as is issuing guidance on their fair use. The possibility of their being in restraint of trade under established law is also noted (although it is not clear to me how in practice workers would be expected to use those laws to help them).
Views are also sought on improving the content and accessibility of information, advice and guidance on zero-hour contracts.
Ms Rooney (no, not Coleen) worked at Dundee City Council. She received a final written warning for failing to follow an instruction, which she appealed. The appeal hearing was rearranged on several occasions but never heard.
A separate disciplinary incident then occurred, for inappropriate behaviour, whilst the final written warning was still 'live'. The person hearing the new incident upheld the allegation. In isolation, it would only have justified a final written warning, but as it bore similarities to the circumstances for which the first written warning was imposed, and looking at the two incidents together, the decision was dismissal. This was despite the fact that the final written warning for the previous offence was still
subject to appeal.
Ms Rooney appealed again. As part of the appeal the circumstances of the first written warning were reviewed. It was decided that that warning was justified, so there was no reason to ignore it, and the dismissal was upheld.
The Employment Appeals Tribunal (EAT) supported the tribunal's view that the dismissal was fair. Was dismissal was within the range of reasonable decisions an employer might take? Yes, it was. So an employer need not be obstructed from taking disciplinary action because a previous procedure is incomplete, but clearly it did the right thing here in dealing with the previous unresolved appeal at the second appeal stage. (Rooney v Dundee City Council (UKEATS/0020/13).)
Mba v Mayor and Burgesses of the London Borough of Merton (2013 EWCA Civ 1562) concerned an employee who alleged that, as a committed Christian, she had suffered indirect discrimination on grounds of religious belief by being required to work Sundays. The Court of Appeal rejected the approach of an employment tribunal and the EAT which both considered it relevant to their decision to deny her claim that the belief that Sunday should be a day of rest was not a 'core component' of the Christian faith - not a belief shared by most or all Christians.
However, Ms Mba still lost her appeal. The tribunal had made detailed findings that there was no 'viable and practical' alternative but to require the employee to work on Sundays as required by her employment contract. The employee had knowingly entered into this and any reasonable tribunal would therefore have concluded that the requirement was justified.
The message is that employers should not treat requests to adjust working conditions in order to accommodate an employee's belief any less seriously simply because the belief is not widely shared. If a request is to be rejected there has to be proper justification.
In Gallop v Newport City Council (2013 EWCA Civ 1583) Mr Gallop, after seven years of service with the Council, complained of stress and was referred to the Council's external occupational health (OH) advisers for assessment for stress counselling.
OH reported to the Council that Mr Gallop had some stress-related symptoms but that there were no signs of clinical depression. The Council made efforts to adjust his workload but within a year he had become too ill to work and was signed off sick. He had intermittent absences of months at a time, interspersed with failed attempts to return to work in a different role. In this period the Council received several reports from two different OH advisers concluding that Mr Gallop was not disabled for the purpose of the Disability Discrimination Act 1995.
Following a final return to work and complaints of bullying made against him by his colleagues, he was dismissed. He claimed, among other things, direct disability discrimination and failure to make reasonable adjustments.
The tribunal rejected his disability discrimination claims on the basis that the Council did not know, and could not reasonably have been expected to know, that he was disabled (even though it was determined by the tribunal that he was). The Council was entitled thereafter to rely on the advice that was given by OH, unless it had good reason to consider otherwise.
The EAT agreed but the Court of Appeal did not. The Council could not 'unquestioningly' accept the opinion of its OH adviser that the employee was not disabled. It is for the reasonable employer to make its own judgment on whether the employee is disabled - it cannot simply rubber stamp the adviser's opinion.
There are lessons here for all employers. An employer will quite rightly want assistance and guidance from OH or other medical advisers, but it must make the factual judgment as to whether the employee is disabled. Do not simply ask in general terms whether the employee is disabled, but pose specific practical questions directed to the particular circumstances of the putative disability. That allows the employer to establish the nature of the employee's health and the extent of any disability, in turn enabling it to judge whether the employee is disabled.
Similar principles emerge from the decision in Z v A (UKEAT/0203/13; A v Z (UKEAT/0380/13).) Once again the message to employers is: make your own considered decision rather than give a knee-jerk response.
The employer in this case was a school which had been informed of the allegations of sexual abuse against one its employees, a caretaker, by the police, who were investigating them. The governors decided to dismiss the caretaker on the basis that trust and confidence had broken down to the point where it was irreparable. The matter could seriously damage the confidence that parents and public had in the school. This was despite the fact that no criminal charges had been brought.
The Employment Appeals Tribunal (EAT) said an employer must not take an uncritical view of the information disclosed to them. Even if the employer is entitled to treat the disclosed information as reliable, was that a sufficient reason for dismissal? While an employer's decision to dismiss purely on the basis of an unproven allegation of abuse may be fair, this is not inevitable. In addition, in this case, the procedure followed by the school in dismissing the caretaker had been inadequate.
The EAT has held that the Agency Workers Regulations 2010 did not apply to a group of agency workers who were assigned to one hirer for periods ranging between six and 25 years. Each worker was employed by the agency and had a written statement of particulars which contained many of the features of a permanent contract of employment.
The Regulations define 'agency worker' as 'an individual who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer. 'Temporary' in this context means not permanent.
For employment purposes, a permanent contract is generally regarded as one which is open-ended in duration, so terminates on notice being given rather than on a specified date agreed at the outset. The arrangements under which the claimants worked were indefinite and they were not protected. (Moran and others v Ideal Cleaning Services Ltd and another UKEAT0274/13.)
Mr Hasan, a British national, was dismissed while working for a Singaporean employer on a Singapore-flagged ship. He claimed discrimination, unfair dismissal and breach of contract claims in an English employment tribunal.
His unfair dismissal and contract claims could not be pursued because the tribunal did not have jurisdiction - the employer and the act complained of were both outside UK. It is the discrimination claim, though, which is of more interest because of the decision in the Bleuse case that domestic law should be construed widely enough to give effect to an EU-derived right such as anti-discrimination.
The EAT decided that there was no authority that the principle should apply where the act complained of took place outside the EU. So there seems to be a two-tier test, with an overseas workers working within the EU more likely to be protected under EU law than one working outside it. (Hasan v Shell International Shipping Services (PTE) Ltd and others UKEAT/0242/13.)