TUPE, or not TUPE: that is the question. This case examines whether subcontractors whose work is halted by their employers can TUPE over to a new company whilst not working?
Mr Mustafa, the Claimant, worked in traffic management for Amey, the 2nd Respondent. The 2nd Respondent was then awarded a large highway maintenance contract in London. The 2nd Respondent sub-contracted its traffic management work to Trek, the 1st Respondent. The Claimant transferred from the 2nd Respondent to the 1st Respondent and continued to work in traffic management.
The 2nd Respondent’s maintenance contract was put out for tender and won by Ringway Jacobs, the 3rd Respondent. The 3rd Respondent believed that any traffic management employees would transfer under TUPE once the contract was active.
However, before the transfer took place, a dispute arose between the 1st and 2nd Respondents. The 1st Respondent told all its staff, including the Claimant, to not report for work and stay at home until notified. The 1st and 2nd Respondent then mutually agreed to terminate the subcontract and the Claimant transferred back to the 2nd Respondent.
On the supposed date of transfer the 3rd Respondent stated only traffic management from the 1st Respondent would transfer and not the 2nd Respondent, where the Claimant had now been placed. The Claimant then reported to work at the 2nd Respondent but was told he had transferred to the 3rd Respondent.
The Claimant went to tribunal but the ET ruled that the Claimant had not been employed immediately before the transfer date and that the 2nd Respondent had not been operating as an economic entity before the transfer. It added that the 2nd Respondent had dismissed the Claimant when its subcontract with the 1st Respondent was terminated.
The Claimant appealed and the EAT allowed the appeal. It completely set aside the ET’s decision and ruled that the cessation of work prior to the transfer did not mean the 2nd Respondent was not an economic entity as it still had all the equipment and personnel needed to operate, they just were not on site. It also found that the Claimant was not dismissed upon termination of the subcontract between the 1st and 2nd Respondent and that therefore he may be entitled to TUPE over to the 3RD Respondent.
The lesson for employers? Just because an employer stops operating that does not mean the employees who are no longer reporting to work cannot TUPE transfer. If such a situation arises both the transferee and transferor should tread carefully. For more on TUPE can be found here.
Posted: Feb 5, 2016 by admin in Employment Tribunal, TUPE, Unfair Dismissal
This tax case asks whether the £30,000 tax free exemption on settlement agreement sums is applicable if the employee has already received redundancy pay?
Mr Moorthy, the Claimant, was made redundant by Jacobs Engineering Ltd. He received £10,000 in statutory redundancy pay but then bought unfair and age discrimination claims against Jacobs. The claims were settled via mediation and the Claimant signed a settlement agreement and received £200,000.00 as part of the deal.
Jacobs treated the first £30,000.00 of the settlement money as tax free, however, when the Claimant completed his tax return he had already received £10,000 in redundancy pay. Therefore HMRC, the Respondent, alleged the tax free amount of the settlement figure should only be £20,000.
The Claimant bought the case to Tax Tribunal and the Tax Tribunal rejected his claim as the injury to feeling in this settlement was not just related to a discrimination claim. The Claimant appealed but this was rejected as the Tax Tribunal held that injury to feelings did not fall in the exemption bracket.
This differs to the decision in a previous tax case, however, in this example the claim was solely in relation to a discrimination claim, not unfair dismissal. This issue is an example of how employers should be diligent when taxing exit packages and factor in whether they have already paid the employee any compensation, however this problem may have disappeared by April.
Posted: Feb 5, 2016 by admin in Redundancy, Settlement Agreements
If you cast your mind back to January 2015 you may remember that winter was actually very cold. As such we did a piece about snow polices. This year, due to a winter that is milder than mint yoghurt, there seems to be very little chance of snow. However, if you substitute the word snow for severe weather then the policy may still be relevant.
The amount of heavy rain, gale force wind and heavy fog has meant this winter has still caused disruption to many businesses, particularly in the north of England. You never know what will happen with the weather so in any event it is worth having a policy for severe weather.
Posted: Jan 29, 2016 by admin in E Learning
Last month’s newsletter had reflected on some of the bigger changes and cases in employment law. January is often a time of looking forward, what do I want to do this year, what should I change/give up, when am I going to give up my resolution, etc. etc. Therefore it made sense to do a piece about what employment law changes we can expect this year.
11th January – The first stop of our forecast into the year actually requires hindsight going back two weeks. Employees on zero hours contracts are now entitled to bring employment tribunal claims against employers who impose exclusivity clauses. Although exclusivity clauses have been illegal since May 2015, only now do employees have the power oppose them.
26th March (could be sooner) – For any business with 250 or more employees it will be compulsory to report any gender pay gaps, including bonuses, and publish them. However further details about how and where the report will be published. Be sure to look out for these announcements in the not too distant future.
March – A further judgment in Lock v British Gas is expected. The judgement will answer whether Holiday Pay should include commission.
6th April – Put it in your diaries, the National Living Wage is coming. We’ve waxed lyrical about it in previous posts and without wanting to further gild the lily a new minimum wage for employees aged 25 and over will be £7.20. Make sure any eligible employees are paid this amount as non-compliance will result in similar repercussions to minimum wage.
April – Nothing has been announced yet but it is widely speculated that the tax free allowance could be abolished for tribunal awards and settlement agreements. (Google will not be subjected to this change)
October – This will most likely be when the Immigration Bill is implemented. The main points will include
- Being informed when employees’ visas expire
- Having to advertise positions in the UK before recruiting from abroad
- Penalties for employing illegal workers
- Being able to recover money paid to illegal workers under the Proceeds of Crime Act 2002
Posted: Jan 29, 2016 by admin in E Learning
The case of Ramphal v Department for Transport, a Court of Appeal case which was set to examine the role of HR in disciplinary procedures, has settled. The case concerned an employee who was under investigation for suspicious travel expense claims, the manager handling the investigation was inexperienced with disciplinary procedures and received substantial support from HR.
The employee was dismissed and initially lost his Tribunal claim however he successfully appealed and the EAT highlighted several discrepancies between the manager’s first and final reports which suggested he could have been improperly influenced by HR.
The first draft stated there was a belief that the credit card misuse was not deliberate and the employee had given plausible reasons for the volume of fuel purchased (a “partly critical” view that would have resulted in a final written warning). Whereas the final draft held a belief that the employee had misused the employer’s credit card (a view that resulted in his dismissal for gross misconduct).
The EAT concluded that HR had done more than advise the manager on issues of procedure and law, and the level of appropriate sanctions with a view to achieving consistency. Had the employee won the Court of Appeal case it may have resulted in the role of HR in disciplinary procedures being changed and requiring a greater emphasis on managers being more able to conduct disciplinary hearings without much assistance from HR. Be advised, the Courts may look to examine this issue in the future.
Posted: Jan 29, 2016 by admin in E Learning, Employment Tribunal, Unfair Dismissal
Now and again employment cases make tabloid news. These sensationalist stories can range from being sacked for liking a facebook photo to deaf police snipers winning discrimination claims and everything else in between.
This month’s outlandish story is a very good example of Schaudenfreude and concerns a city banker who was sacked after his elaborate rail fraud scheme was uncovered.
For two years the banker had simply been scrubbing off the expiry date on his rail card and replacing it with the new year and then claiming an annual £4,000 rail expense from his employer.
He has since lost his job and faced criminal charges for fraud. The lesson for employers is that employees who fraudulently claim expenses can be disciplined for gross misconduct and face criminal convictions as well.
Posted: Jan 29, 2016 by admin in E Learning
January is usually a month where snow disrupts business, the snow over Christmas may not be the only snow this winter and icy roads can often cause commuting difficulties, school and business closures and even disrupt phone and broadband signal.
If you are an employer that could be affected by heavy snow or have employees who may struggle to commute by train/car due to snow then it may be wise implementing a policy on what to do if attendance is difficult due to snow. Simple provisions like home working/diversion to mobile can allow the business to operate without employee’s risking injury.
You never know hell might freeze over so having this policy will hopefully mean snow will cause as little disruption as possible. If you need or would like a snow policy please email us.
Posted: Jan 25, 2016 by admin in E Learning
Thank crunchy its Friday! Not only is the weekend a few hours away but it also means you get another dose of case law to see you through to the end of the week. Today’s case concerns harassment and, like an episode of Celebrity Big Brother, comes with a warning for unpleasant language that some readers may find offensive.
Can an employee claim harassment if they do not share the same protected characteristics that the harassing conduct is aimed at?
The Claimant, Mr Noble, worked for Sidhil Ltd, the Respondent. The Claimant worked in the paint workshop with his line manager, often they were the only two in the workshop. The Claimant was subject to many adverse appraisals by his manager which stated he lacked confidence, the Claimant blamed this on his manager calling him up on the smallest issues.
The Claimant went off work due to sickness then lodged a grievance with the Respondent citing harassment by his manager as the reason for his illness. The Respondent carried out an investigation into the grievance but dismissed it after no evidence of harassment was found, largely due to the Claimant’s manager being the only witness to the events. The Claimant appealed but this was also dismissed.
The Claimant then made claims against his line manager and the Respondent under the Equality Act 2010 for harassment on the grounds of age, race, sexual orientation and religion or belief. Despite not directly harassing the Claimant, the Respondent is vicariously liable as the employer. The next part of narrative is perhaps not as succinct as it could be but it is necessarily long to paint an accurate reflection of the manager’s conduct.
The claims related to race centred around the conduct of the manager who reportedly made many disparaging comments about Asian shopkeepers, used the word Yid in a derogatory manner, referred to a black security guard as Sooty, claimed Nelson Mandela was evil, claimed Jews monopolised Holocaust sympathy, frequently chanted the phrase “Agadoo do do do kill a P*** gas a J**” and finally regularly used the N word.
The claims related to age centred on the Claimant being 15 years older than his manager and was thus frequently told that he was having a midlife crisis, in the male menopause, having a hot flush or being a boring old man.
Further claims concerning sexual orientation included referring to the Claimant as gay Trev or queer Trev, writing gay Trev on dusty windows, saying gay people are immoral, insinuating to other colleagues that the Claimant was gay, calling the Claimant’s gay stepson “the gay one” and lastly referring to the Claimant’s hobby, karate, as “gay men, in gay clothes having a midlife crisis“.
Finally the claims in relation to religious beliefs included the manager saying the Claimant’s Christian beliefs were a load of hocus pocus, saying the Claimant’s plans to renew his wedding vows were a silly joke, giggling whenever the Claimant said he prayed and describing attending church as having a sing song.
The ET considered the 56 harassment claims made by the Claimant and also heard conflicting accounts from his manager. As the claims mostly related to the conduct of his manager and they worked together with no supervision it came down to which version of events the Tribunal believed more.
The majority of the time it appears they preferred the manager’s version of events as only 8 of the Claimant’s claims were accepted, in many cases there was little or no reasoning for accepting the manager’s account. This was partly due to many of the harassment claims for race and sexual orientation being rejected as the Claimant was not of the race/sexual orientations the conduct was related to.
Harassment is defined in the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. In the ET’s mind this meant that only a person of the relevant protected characteristic could be affected by the conduct.
The Claimant appealed and the EAT accepted the appeal. It found that the Tribunal had erred in law by finding that the Claimant could not make a claim of harassment if he did not share the protected characteristic that the conduct was aimed it.
The take away point from today is that an employee does not have to share a protected characteristic in order to claim harassment. This is the correct stance to take as the original ET judgment suggests that a person could behave however they wanted and so long as a colleague who shared the same protected characteristic did not hear the conduct the conduct was not offensive.
The fact that the two colleagues often worked together unsupervised meant the employer could find it difficult to make the correct decision if a grievance is brought. However in this instance the sheer amount of offensive behaviour suggests the Claimant was not making it up. Furthermore a previous case on harassment taught us that these issue can even TUPE over in certain circumstances.
Posted: Jan 20, 2016 by admin in Employment Tribunal
Hello again. Following the death of David Bowie it would have been amazing to bring you a case about the music or space industries. However, cases related to these topics are few and far between so here is a one about buses.
Can an employee suffer victimisation as a result of the protected acts of a third party?
The Claimant, Mr Thompson, was employed by the Respondent, London Central Bus Company, as a bus driver. At the time of his dismissal the Claimant was subject to a final written warning due to a prior disciplinary offence.
The Claimant was then dismissed for giving a company high-vis vest to another employee. He appealed the decision and was later given an unpaid suspension and further warning. During the appeal he apologised for his behaviour but afterwards the Claimant alleged that his treatment was victimisation by association.
The basis for this claim was that other employees in the same trade union as the Claimant were overheard by the Claimant discussing an apparent agenda by a manager to get rid of employees speaking out against racism within the Respondent. The Claimant believed that the incident with the vest was only brought up when he mentioned this conversation to the Respondent.
The Respondent believed the Claimant could not be victimised by association as the definition of victimisation is found in s.27 of the Equality Act, is described as:
(1) A person (A) victimises another person (B) if A subjects B to a detriment because –
(i) B does a protected act, or
(ii) A believes B has done, or may do, a protected act.
At a preliminary hearing the judge held that victimisation by association could stand as means to support a claim, as by being associated with the act meant the Claimant could have suffered a detriment. However, a second preliminary hearing was held and a different judge ruled that, despite being able to suffer victimisation by association, merely being in the same trade union and repeating a conversation was not a sufficient link between the Claimant and the protected act.
The case was struck out as it had no reasonable chance of success. The Claimant appealed. The EAT accepted the appeal stating that the ET was wrong to deem the link too tenuous to have a connection to the act. The EAT held that it was possible that being a member of an organisation which complained about discrimination could have led to the Claimant receiving detrimental treatment and therefore the claim should not have been struck out.
To answer today’s question, yes, an employee can be victimised due to the actions of a third party. However there must be a credible link between the employee and the third party. To read more cases about trade unions click here.
Posted: Jan 15, 2016 by admin in Unfair Dismissal
Hello and Happy New Year to you all! We trust, like us, you have enjoyed and indulged over the Christmas holidays, hopefully the roast dinners, mince pies and steady supply of booze have not had any adverse effects.
Some of you may have given something up for the New Year; chocolate, alcohol, meat, carbs and slobbing out. These are all vices that, when given up, may make you feel that you have less freedom than you did a few weeks ago. If you do feel that way then today’s case about employee imprisonment may resonate with you. And with that I have failed my resolution to quit making tenuous links.
To compensate for a lack of carbs there are three questions today:
What does an employer do if an employee is imprisoned due to a criminal conviction?
Can a tribunal find a dismissal to be unfair but reduce the compensation by 100%?
Can an employee who has contributed to their own dismissal be reinstated?
Mr Carter, the Claimant, was employed by Aulds Bakeries Ltd, the Respondent, from 2005 until October 2014. However, his last working day was in September 2013 when he was convicted of dangerous driving and sentenced to 6 months in prison. The Claimant’s wife informed the Respondent of this and requested if holiday could be taken, however neither she, nor the Claimant, made any request for authorised or unpaid leave to cover the full length of the conviction.
Upon the Claimant’s release in November 2013 he was told he could not come back to work. The Claimant appealed this decision and the Respondent initially rejected this because the Claimant’s absence had caused his employment contract to become frustrated. It then allowed the appeal after the Claimant submitted his unfair dismissal claim.
The appeal took some time due to the unprecedented nature of the scenario, there were also many flaws in the procedure. However the decision to dismiss was upheld as the Claimant had not disclosed the length of time he would be absent or agreed an authorised absence.
The claim went to hearing and the ET stated that the initial dismissal in November 13 was not fair. No procedure had been followed. The Respondent argued that the subsequent appeal hearing rectified this issue but the ET disagreed and held that the dismissal was unfair.
The ET then considered what remedy would be appropriate. The Claimant had appealed for reinstatement, however, despite no objection from the Respondent, the ET rejected this proposal. The ET felt that reinstatement would be impractical as the Claimant had contributed to his dismissal by being imprisoned and not effectively communicating this absence with the Respondent. The ET also reduced both the basic and compensatory award by 100% for the same reason.
The Claimant appealed and the EAT accepted the appeal. It held that as the Respondent had not objected to reinstatement then the ET’s decision is not relevant. It went on to say that the ET had not justified its decision to deduct 100% of the awards and despite there being evidence to support the decision the ET needed to fully explain this.
Today’s takeaway points
If an employee is sentenced to prison the best thing for the employer to do is treat it as an absence issue. In this case the Respondent should have sent numerous warnings to the Claimant about unauthorised absences then proceeded to dismiss when he continued to be absent. See our piece about footballer Ched Evans as a high profile case study of this issue.
A dismissal can be unfair but not be awarded any compensation. If the dismissal is unfair but the Claimant’s conduct is the sole reason for the dismissal then the tribunal could deduct all compensation if it is just and equitable to do so. In many cases the award is often partially reduced due to either contributory fault or polkey.
Finally if a Claimant proposes reinstatement then the ET will have to consider whether:
- the employee wants to be reinstated
- it is practicable for the employer to comply.
- it would be just to make either type of order where the employee’s conduct caused or contributed to some extent to his dismissal
However if the first two criteria are met and the Respondent has no objections then a reinstatement could be upheld.
Posted: Jan 7, 2016 by admin in Employment Tribunal, Unfair Dismissal