FEBRUARY BLOG UPDATE ON TUPE UNFAIR APPOINTMENT REVIEW PERIOD

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1 FEBRUARY BLOG Make sure that you are managing your employees well and dealing with issues head on. more... UPDATE ON TUPE We provide an overview of the TUPE regulations and the amendments which came into effect at the end of January.more... UNFAIR APPOINTMENT When considering a claim for unfair dismissal, tribunals can take into account the extent to which the employer followed through procedures when making an Call us today on (01603) or appointment. more... REVIEW PERIOD The appeal tribunal has said that it is not a

2 Kathryn Hirst Partner Norwich / Reepham T (01603) F (01603) View me on LinkedIn Follow HansellsHR On Twitter breach of the duty to make reasonable adjustments for disabled employees if the employer did not build in a review period to an employee's phased return to work. more... IN BRIEF Although the vast majority of absences are likely to be genuine, employers need a clear strategy for how to manage absences due to illness during the winter. more... FEBRUARY BLOG One month in to 2014 and the 'new' healthy eating regime hasn't quite taken off. I've intentionally purchased biscuits and crisps that I don't like for the boys but more work definitely needs to be done; I now need to steer myself away from the sweet shops and fast food establishments! Hockey matches involve sugary drinks and/or a handful of sweets at half time these days (as opposed to the portion of fresh orange we used to enjoy) and it's not uncommon to have postmatch outings to well know fast food restaurants. My justification for the huge burger and fries this Saturday just gone was that it was a really hard game and we lost significantly so I most definitely deserved it. Feeble I know but I think change takes time to get used to; I will get there but it could take a while. They do say old habits die hard! Change is something that we know a lot about in the employment world. For example fees were introduced in the Employment Tribunal in July 2013 and since then claimants have had to pay an issue fee to bring an employment tribunal claim and then a hearing fee prior to a final hearing (depending on financial circumstances, some individuals may be able to claim remission of all or part of these fees). Unison actually challenged this fee introduction by way of Judicial Review, but just a few days ago, the High Court rejected their application. Unison argued that there has been a dramatic fall in claims since the introduction of fees but the Government stated that it was too early to rely on the accuracy of these statistics. The High Court found that whilst fees impose a burden on families with very limited means, who may have to use hard-earned savings to fund tribunal litigation, the fees were still affordable. The High Court did stress that, at this stage, it had insufficient actual evidence to judge the fees regime. The Court suspected that fees will have a disparate impact on, for example, women, ethnic minorities and the disabled, but it was not yet possible to gauge the extent of that impact. All in all this is a very significant decision and means that the Tribunal fees are here to stay (for now) which is good news from an employer's perspective. My message however is to make sure that you are managing your employees well and to deal with issues head on as it is likely that many disgruntled individuals will stay on in their roles rather than leave and run to the Employment Tribunal. Such employees can be incredibly destructive as their attitude and performance will be poor and they will no doubt have a detrimental effect on their colleagues around them. Until next month Kathryn

3 UPDATE ON TUPE The 2006 Transfer of Undertakings (Protection of Employment) Regulations (TUPE) apply to two types of relevant transfer - standard or business when an economic entity transfers from one employer to another and retains its identity; and service provision changes which happen when an organisation engages a contractor to provide a service on its behalf or brings it back in-house. Following a consultation last year, the government issued new regulations amending the TUPE regulations, which came into effect at the end of January this year. Overview of the regulations Broadly speaking, the regulations preserve the continuity of employment and terms and conditions of employees who are transferred to a new employer when a relevant transfer takes place. This means that employees employed by the previous employer automatically become employees of the new employer on the same terms and conditions (except for certain occupational pension rights). They also contain specific provisions to protect employees from dismissal before or after a relevant transfer. The regulations do, however, provide some limited opportunity for the transferee or transferor to vary the terms and conditions of employment contracts in a range of stipulated circumstances even if the sole or principal reason for the variation is the transfer. Representatives of affected employees have a right to be informed about a prospective transfer and must also be consulted about any measures which the transferor or transferee envisage taking concerning the affected employees. The regulations also place a duty on the transferor to provide information about the transferring workforce to the new employer before the transfer occurs. The regulations apply regardless of the size of the transferred business and apply equally to public or private sector undertakings and whether or not the business operates for gain, such as a charity. Amendments to the regulations The 2013 regulations introduced the following amendments: - The test for service provision changes has been expressly clarified so that the activities carried out after the change in provider must be fundamentally the same as those carried out by the person or contractor who carried them out before the change. - The provisions which protect against dismissal and restrict changes to contracts have been amended so that the protections apply when the sole or principal reason for the dismissal or variation of employment contract is the transfer. These protections will not apply, however, when the reason is an economic, technical or organisational reason entailing changes in the workforce. - A change to the place where employees are employed is now covered within the phrase changes in the workforce. This was previously restricted to changes in the numbers employed or changes to the functions performed by employees and is of relevance to the dismissal protection and the protection against variations of contracts.

4 - Exceptions to the general restriction on varying contracts of employment have been amended so that terms incorporated from collective agreements can be varied when more than a year has passed since the transfer, as long as the contract is no less favourable to the employee overall. In addition the exceptions have been amended so that employers can make changes permitted by the terms of the contract. - New employers must take over any collective agreements made by or on behalf of the transferor employer in respect of any transferring employees which were in force immediately before the transfer. - Transferred employees cannot, however, benefit from subsequent collective agreements negotiated between the transferor and their trade union following the transfer if the transferee was not a party to the negotiations. - Micro businesses can inform and consult employees directly when there are no existing appropriate representatives. - The usual deadline by which the old employer must supply the employee liability information to the new employer has been increased from not less than 14 days before the transfer to not less than 28 days before the transfer. - The Trade Union and Labour Relations (Consolidation) Act 1992 has been amended so that a transferee may elect to consult (or start to consult) representatives of transferring staff about proposed collective redundancies prior to the transfer (to meet the consultation requirements under the Act), as long as the transferor agrees. UNFAIR APPOINTMENT When considering a claim for unfair dismissal, tribunals have to consider whether the employer acted reasonably, among other things. In Somerset County Council v Chaloner, the Employment Appeal Tribunal (EAT) confirmed that tribunals can take into account the extent to which the employer established and followed through procedures when making an appointment and whether they were fair. What happened? In 2010, due to public sector cuts, the centre where Ms Chaloner worked suffered a serious downturn in income. Mr Griffiths, the Council s critical commercial change manager drew up a restructuring plan in November 2010, reducing the number of senior management posts from four to two. Ms Chaloner decided to apply for the post of Business Development Manager (BDM) as the job description was very similar to her old job, although it was at a lower grade. Mr Griffiths then produced a second restructuring document over the Christmas period which involved more redundancies, including the post of Ms Boyland, the financial officer. He also changed the job description for the post of BDM, adding an entirely new section on financial control and administration without telling Ms Chaloner. It was not until Ms Chaloner appealed the decision to give Ms Boyland the job that she realised the job description had been changed. She argued before the appeal panel that it was so close to her existing job description that she should have been appointed without the need for a competitive interview. She also argued that the process was flawed as she had not expected to be asked

5 financially technical questions which affected her overall performance. She lost her appeal and brought a claim for unfair dismissal. The tribunal held that adding the finance and accounting responsibilities to the job description was a material change, which was made worse by the inclusion of the finance officer into the redundancy pool. Accepting her evidence that she was wrong footed by the interview which was undertaken in breach of the Council's own policy and procedure, the tribunal held that the Council s failure to tell Ms Chaloner about the changes to the job description was a material omission and that her dismissal was therefore unfair. The EAT found that having applied section 98(4) of the Employment Rights Act 1996 correctly (whether the employer had acted reasonably or not), the tribunal had also considered how far the employer established and followed through procedures when making an appointment and whether they were fair. In this case, the tribunal took into account the context that Ms Chaloner did not know about the differences between the two job descriptions. Nor did she know, when preparing for the interview, that the finance officer had become a competitive candidate for a role which on the basis of the first job description was a close fit to her own. The appeal panel had failed to address any of these points and, like the original interview panel, had not followed the Council s stated policy of fully analysing qualifications, skills, performance, contribution, expertise and potential savings. It therefore upheld the tribunal s decision and found the dismissal unfair. REVIEW PERIOD The law says that employers have to make reasonable adjustments if a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with someone who is not disabled. In Secretary of State for Work & Pensions (Jobcentre Plus) v Higgins, the Employment Appeal Tribunal held the employer was not in breach of the duty by failing to build in a review period to an employee s phased return to work. What happened? Mr Higgins, a part time administrative officer in a benefits delivery centre in Liverpool since 1979, went off on long term sick leave in June His GP deemed him fit for work at the beginning of August 2010, but recommended a phased return over three months. Following a meeting with Jobcentre Plus the same month, Mr Higgins was told that he could gradually return to work over 13 weeks. He said that was too short and asked for a phased return of up to 26 weeks. His employer refused to extend the period, saying that if he had not managed to return to his original working pattern by the end of the 13 weeks, he would have to discuss the possibility of changing his contract. Mr Higgins refused to return to work unless his employer agreed to an extension of the 13 week period. HIs employer dismissed him. After his appeal against dismissal failed, he claimed unfair dismissal and discrimination on the ground that his employer had failed to make a reasonable adjustment. The tribunal held that although it was reasonable forjobcentre Plus to specify a 13 week period (subject to reviews), the fact that it expressly rejected the possibility of a further period to allow Mr Higgins to return to work on his normal hours was not reasonable. As Jobcentre Plus did not amend its offer before Mr Higgins was dismissed it was in breach of the duty to make reasonable

6 adjustments. The EAT considered the PCPs identified by the tribunal - the requirement to undertake work and the 13 week rehabilitation period - and held that although PCPs can be widely drawn, they should be linked to the disadvantage. In this case, the correct PCP was the requirement for Mr Higgins to work his contractual 23 hours per week. By failing to identify the correct PCP, the tribunal had not properly considered the substantial disadvantage that Mr Higgins was put to nor how the adjustment would avoid the disadvantage. Nor had the tribunal set out what disadvantage Mr Higgins had been subjected to because the employer had not made clear at the beginning that they would carry out a review and if necessary extend the period. If an employer grants reduced hours, the EAT was not clear why they should also give an explicit guarantee of future reviews. If, at the end of the period, the employee continued to be under a substantial disadvantage, the duty to make an adjustment would still apply and could be judged at that time. As the tribunal had failed to address how far the step or steps which were in issue would have been effective in preventing any substantial disadvantage caused by the PCP, the EAT allowed the appeal and remitted the case to the same tribunal to reconsider these points. IN BRIEF Employees are much more likely to take time off due to illness in the winter months. Although the vast majority of absences are likely to be genuine, employers need a clear strategy for how to manage them. A system for ensuring accurate monitoring and recording is therefore crucial, as is a sickness management policy which sets out the procedure for dealing with repeated absences. This should stipulate the steps that employees must follow for reporting an illness and for completing a selfcertificate if the absence is less than seven days or for obtaining a fit note for longer absences. In addition it should set out the organisation s sick pay policy and the steps that the employer will take under the disciplinary procedure, if the employee s attendance record shows repeated absences. However, employers must not dismiss the person without giving them the chance to give their side of the story or the chance to improve. Although warnings may seem inappropriate in cases of absence due to illness, they may well be justified, particularly if the employee s absences are for no more than a day or two at a time and so do not require fit notes. However, the warnings should be sympathetically worded if it is clear that the employee is suffering from an underlying medical problem, although the employer also needs to make clear what will happen if the absences continue. In general, employers don t have to obtain medical evidence in cases of intermittent illness. But if in the course of an investigation, an underlying medical condition becomes evident then they should seek a proper medical opinion. If it turns out that there is unlikely to be an improvement in the person s condition, then the employer should treat it as a long-term illness. If the condition is not long-term but is genuine,

7 then it should be treated sympathetically. If the illnesses turn out not to be genuine, the employer can deal with it using their disciplinary procedure and the relevant Acas code. Disclaimer: This newsletter is a summary of legal issues not intended to provide specific legal advice nor intended to be comprehensive. If advice is required please contact your solicitor. This transmission is intended solely for the addressee (s) and is confidential.if you are not the named addressee, or if the message has been addressed to you in error, you must not read, disclose, reproduce, distribute or use this transmission Delivery of this message to any person other than the named addressee is not intended in any way to waive confidentiality. If you received this transmission in error please contact the sender or delete the message. List Maintenance To unsubscribe from this service of for further information call

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