Employment update
Title goes here
Blackpool Teaching Hospitals NHS Foundation Trust
10.00am
Subtitleuntil
goes12.00pm
here
Sara
Barrett,
Partner
Name
Surname
One
Name
Surname
Two
Stuart
Craig,
Partner
Jonathan Madeley, Senior Solicitor
Outline of the morning
1
Employment reforms 2013, with a focus on
– Whistleblowing
– Protected conversations
2
Case law update
Coffee Break (Mini)
2
Disciplinary and Grievance decisions
4
TUPE update
5
What’s around the corner?
All interspersed with the Nostalgia Quiz!!
Summary of Employment Reforms
Quiz Question 1!
Summary of employment reforms
April-June
July-September
April : reduction in collective
July : fees and new tribunal
consultation period and
rules of procedure
exclusion of fixed term contracts
April : new ACAS code on
collective redundancies
July : new unfair dismissal cap
June : whistleblowing reforms –
public interest test, vicarious
liability and other changes
July : settlement agreements,
pre-termination discussions and
new ACAS code of practice
June : removal of qualifying
period for political dismissals
September : employeeshareholders
Fees and new Tribunal Rules of
Procedure
o
o
o
o
Issue fee and hearing fees; types A & B
Implementation Controversial – Judicial Review
Mediation – costs payable by Employer
The “sift” system
Focus on Collective Consultation
changes
o TULCRA 1992 amended from 6 April 2013
o When proposing 100 or more redundancies over a 90
day period [at one establishment], the minimum
consultation period has been reduced from 90 to 45
days (still 30 days when proposing 20 -99)
o New ACAS Guide on How to Manage Collective
Redundancies
Focus on unfair dismissal
25 June 2013
o Removal of two-year qualifying period where main
reason for dismissal is the employee’s political opinions
or affiliations
29 July 2013
o Earnings related cap introduced to the compensatory
award. New limit is the lower of the existing cap and
52 weeks’ pay
Focus on Protected Conversations
Quiz Question 2!
Focus on Protected Conversations
29 July 2013
o Compromise agreements to be renamed “settlement
agreements”
o ACAS
– Statutory Code of Practice on Settlements
– Settlement Agreements: A Guide
o Case Study for discussion
Case study
o Jack is employed by Candlewick Trust. His manager,
Jill, asks to speak to him “off the record”. She tells him
that there are problems with his performance. She
suggests that they come to an agreement to terminate
the employment because it’s “only a matter of time
before he is dismissed”.
Q. Is this discussion protected by the legislation?
Q. If performance was in anyway related to Jack
being diabetic, what additional issues might arise?
Pre-termination negotiations
o Normal “without prejudice” rule
– Genuine attempt to settle a dispute
o ERRA 2013 changed ERA 1996
o From 29 July 2013, pre-termination negotiations are
inadmissible in evidence in ordinary unfair dismissal
claims unless “improper behaviour”
What negotiations are covered
o Only negotiations relating to ordinary unfair dismissal covered:
– Discrimination, breach of contract etc are not covered
o But what if employee has multiple claims including ordinary unfair
dismissal?
o Costs offers may be excluded (Calderbank offers)
o Limited due to requirement for Treasury Approval? When may it
be of use?
Pointers from ACAS Code
o Improper behaviour does not mean employer will necessarily
lose unfair dismissal claim
o Face to face meetings and giving reasons for offering the
settlement are helpful
o Good practice to allow employees to be accompanied
o Reasonable time for consideration of offer - generally 10 calendar
days from receipt of written terms unless otherwise agreed
Improper behaviour
o No statutory definition – tribunals have discretion in deciding
o ACAS Guide gives illustrations of what might amount to improper
behaviour
–
–
–
–
–
All forms of harassment, bullying and intimidation
Physical assault or threat of assault, or other criminal behaviour
All forms of victimisation
Discrimination
Undue pressure, including not giving a reasonable time period
Answers
Q1 In line with the ACAS Guidance, this is likely to
amount to improper behaviour. This appears to be
undue pressure as Jill is suggesting that Jack will be
dismissed, even before any procedure has started.
o The Guidance states that undue pressure includes
– An employer saying before any form of disciplinary
process has begun that if a settlement proposal is
rejected then the employee will be dismissed
Answers contd
Q2
Jack’s diabetes is likely to mean he has protection
under the Equality Act. Although Candlewick have
raised the suggestion of termination of his
employment for performance issues, there is a risk
that Jack will make a claim for disability
discrimination. In that event the conversation will
not be protected. This would be the case whether
or not there had been improper behaviour.
Focus on Whistleblowing
Quiz Question 3!
Focus on Whistleblowing
o 25 June 2013
o Disclosure must be in the public interest
– Closed loophole in Parkins v Sodhexo [2002] where
employee brought claim relating to breach of own
employment contract
o Personal liability of co-workers
o Employers now vicariously liable for detriments caused
by workers
o Definition of Worker
Whistleblowing
o No longer a requirement of good faith
– may reduce compensation by up to 25% if disclosure not
made in good faith
Whistleblowing reforms
o The Whistleblowing Commission
– public consultation and call for evidence during 2013
o Amongst other things, government is considering
whether:
–
–
–
–
The current 6 categories of disclosure are adequate
The defintion of worker should be extended
Current 3rd party disclosure rules deter whistleblowing
Financial incentives should be given to whistleblowers
CASELAW UPDATE
Quiz Question 4!
Case law update
o
o
o
o
Collective redundancies: the Woolworths case
What is a reasonable disciplinary procedure?
Victimisation: a warning
Failure to follow ACAS code
What, no establishment?
o USDAW v Ethel Austin Ltd [2012] EAT
(“Woolworths case”)
o TULRCA wording "at one establishment" - disregarded
when calculating consultation threshold
o All potential “redundancies” aggregated, even those at
different sites
o Appeal pending - as is reference to ECJ
o How to respond?
Some mistake surely?
o Stuart v London City Airport CA 2013
o Dismissal fair despite “limited” investigation of
misconduct
o Employer had reasonably concluded that employee’s
explanation was untruthful
o Entitled to take adverse view of other disputed
evidence without more detailed investigation
o Subsequent acquittal of criminal charges not directly
relevant
Beware of victimisation
o Onu v Akwiwu EAT
– An ex-employer can still be liable
o Woodhouse v North West Homes EAT
– Dismissal following a breakdown in working relationships as a
result of unfounded multiple grievances victimisation
– Grievances were genuinely believed
o Carmelli Bakeries v Benali EAT
– Dismissal for gross misconduct can still be victimisation if
done for ulterior motive:
Failure to follow ACAS Code
o Biggs v University College London Hospital Foundation
Trust [2013]
o Claimant nurses unfairly dismissed
o Awarded total of £100,000 to two claimants
Disciplinary and Grievance
Decisions
Quiz Question 5!
Turning down appeals
o What does internal policy say?
o Acas Code/ Guidance
o Is appeal a re-hearing, an appeal against procedure or
introducing new evidence?
o What is the standard of “proof”
– “Balance of probabilities”
– “More likely than not”?
o Trust and confidence
Appeals contd
o
When approaching disciplinary decisions, helpful to look at the
Burchell test – (whether or not decision was to dismiss)
British Home Stores Ltd v Burchell
(1) Did the employer genuinely believe the employee was guilty of
misconduct?
(2) Did the employer have reasonable grounds for that belief?
(3) Had the employer carried out as much investigation as was
reasonable in the circumstances at the time it formed that belief?
o
Commercial impact v legal risk?
Rejecting a grievance
o Internal policy
o ACAS code guidance
o Basis for rejection :- substantially not upheld/risk to
Trust if accept?
o Managing risk where accept a grievance
o Managing relationships – where reject the grievance
o Mediation/Redeployment
TUPE
Quiz Question 6!
Outsourcing services
o SPC - here to stay
o Case law - forward thinking may pay off
o TUPE:
– Classic transfer = a transfer of an undertaking, business or
part of an undertaking or business where there is a transfer
of an economic entity which retains its identity
– SPC = Organised grouping of employees…whose principal
purpose is carrying out the activities for the client
Organised enough?
o To be an organised grouping, employees must
deliberately be organised by reference to the particular
activities or service for the relevant client and work
together as a team
– Argyll Coastal Services v Stirling
– Eddie Stobart v Moreman
– Seawell v Ceva Freight
o Check due diligence information as TUPE cannot apply
if there is no organised grouping
Activities must be the same
o Post transfer activities must be fundamentally or
essentially the same
– Enterprise Management Services v Connect Up
– Nottinghamshire Healthcare NHS Trust v Hamshaw
o Fragmentation
– Clearsprings Management Ltd v Ankers
But who is assigned?.....
o Employees must be assigned to the organised
grouping
o A question of fact, time spent is not enough
o Same approach taken as in business transfers
Transferring terms - Dynamic or Static?
o Alemo Herron v Parkwood Leisure [2013] ECJ
– Transferee cannot be bound by post-transfer collectively
agreed terms if it is unable to be involved in the
negotiating process
Varying terms and conditions after a
transfer
o Variation void if the reason for it is the transfer
o TUPE allows variation
– unconnected with the transfer; or
– for a reason connected with the transfer which is an economic
technical or organisational reason entailing changes in the workforce
(“ETO reason”)
o ETO – needs to affect headcount or functions – redundancy/reorganisation
o Beneficial changes are fine
TUPE Case Study
o Employee employed in a procurement team at an NHS Trust with
a regular place of work. Her contract says:
“There may be occasions when you are required to perform
your duties either temporarily or permanently at other
locations within the Trust.”
o Following a TUPE transfer, the employee is required to work at a
different site, outside the transferor’s geographical area and a
few miles further from her home
o After the transfer she refuses to move and resigns. Would she
have a successful claim?
New Fair Deal for pensions (1)
o New Fair Deal guidance published by HMT on 4 October and
comes into immediate effect
o Provides for staff who transfer from public sector employer to a
private contractor to be member of the public service scheme
they were in before
o New joiners to the provider after the transfer are excluded from
the scope of New Fair Deal
o Creates a more level playing field on pension costs
New Fair Deal for pensions (2)
o Applies also to contracts on a retender, although in
some circumstances a broadly comparable scheme
may be provided by an incumbent contractor
o Contractors may need to provide an indemnity,
guarantee or bond to cover their obligations e.g.
contributions due if the contractor becomes insolvent
o Bulk transfer when staff rejoin a public sector scheme
Reform of TUPE
o Despite proposals for repeal, Government says it will
retain:
– Service Provision Change
– Requirement for employee liability information (but to be
supplied no later than 28 days, rather than 14, before
transfer)
Reform of TUPE
o Amendments
– Transfer related dismissals and changes to contracts
– Relocation to be an ETO reason
– Consultation by transferee to count towards collective
consultation
– Terms from collective agreements renegotiated after 1
year, as long as change is no less favourable
– Confirmation of static nature of collective terms
o Expected January 2014
Key points
o Think ahead – what if you lose the contract but the
employees don’t transfer!
o Future proof the workforce?
o Keep an eye on secondments
o Challenge the staff list of transferring employees
o Upon transfer are you making any changes to the
employee’s working conditions which are substantial
and detrimental?
o Consider indemnities when employees transfer to you
What’s around the corner…?
Quiz Question 7!
ACAS early conciliation scheme
o April 2014
o Claimant required to contact ACAS before issuing
proceedings
o No obligation to participate in early conciliation
o Cannot issue proceedings until early conciliation
certificate issued by ACAS
o Conciliation for a month
Sickness absence
o April 2014
o Proposal to establish a state funded health and work
assessment and advisory service
– Referral by GP to the service after 4 weeks of sickness
absence
– Telephone assessment and face to face assessment
– Report for employer providing “definitive advice”
Flexible working
o 2014 (exact timing unknown)
o Fight to request flexible working to be extended to all
staff with six months’ service
o Procedure to be simplified
o New Code of Practice
o Details in Children and Families Bill
Equality
o October 2013: abolition of separate rules for third-party
harassment (“two strikes and you’re out”)
o April 2014: end of questionnaire procedure
o 2014: compulsory equal pay audits for employers
losing equal pay claim
o 2015: prohibition of caste discrimination implemented
And finally….
o Parental leave – 2015
– Unpaid leave to attend two antenatal appointments for
fathers
– “Flexible parental leave” allowing parents to share 50
weeks of leave between them
– No more additional paternity leave (OPL remains)
– No qualifying period for statutory adoption leave
– Extended to surrogacy arrangements
Quiz Question 8!
Nostalgia Quiz
Answers!!
Nostalgia Quiz
Tribunals
- Employment
o Industrial Tribunals, as ET’s were once known, were
set up the same year that The Beatles’ “I feel fine”
topped the charts. Was that:
A
B
C
1965
1964
1963
Nostalgia Quiz - Unfair dismissal
o The seminal case of Burchell v British Homestores
[1978] involved the alleged price-swapping of:
A
B
C
A pair of polychromatic sunglasses
A pair of flared jeans
A pair of wedged sandals
Nostalgia Quiz - Whistleblowing
o The UK’s first whistleblowing legislation (in the form of
the Public Interest Disclosure Act) came out in the
same year as France hosted the world cup. Was this
A 1990
B 1992
C 1998
Nostalgia Quiz - TUPE
o One of the leading TUPE cases to come out of Europe
in the 1980s involved an employer called:
A
B
C
Daddy’s Dance Hall
Momma’s Boogie Shack
Cinderella Rockerfella’s
Nostalgia Quiz -Redundancy
o Woolworths, previously the UK’s biggest stockist of
pick ‘n’ mix, closed down in 2009. How many
redundancies were made as a result?
A
B
C
10,500
17,000
27,000
Nostalgia Quiz -Contracts
o In October 2004 the “Statutory Dispute Resolution
Procedures” were introduced with the aim of resolving
disputes before issuing Tribunal claims. When were
they repealed?
A
B
C
April 2006
April 2009
April 2011
Nostalgia Quiz – Sick leave
o In what year was statutory sick pay introduced?
A
B
C
1973
1983
1993
Nostalgia Quiz - Equality
o In June 2008 Harriet Harman said that the (then draft)
Equality Act 2010 would be:
A
B
C
Stonkingly good
Absolutely fabulous
Superb beyond measure