Employment Law Update Seminar Tuesday 17 th June 2014 Chilworth/Southampton pumpcourtchambers.com
TUPE what s new? Gary Morton
Introduction
TULR(C)A 1992 new s.198a: Consultation Transferor and transferee pre-transfer consultation. The need for a written notice. The transferee consults as if already the employer. What is an establishment? Who are affected employees? Does I Lab restrict the scope of reg.13(1)?
TULR(C)A 1992 new s.198b: The transferee can carry out pre-transfer consultation. Elections Transferor and transferee responsibility for protective awards. Written notice from the transferee to the transferor. Amended s.196(1) the transferor and transferees employee representatives.
TUPE New reg.3(2a): Activities To be a relevant transfer activities have to be fundamentally the same before and after. Nottinghamshire Healthcare NHS Trust v. Hamshaw a fundamental change as the activities were not the same. Johnson Controls Ltd v. Cambell & Another a fundamental change when a centralised service ceased to be centralised.
TUPE 2006 new reg4(4)-(5): Varying contracts New reg.4(4)-(5) is substituted for the existing reg.4(4)-(5). New reg.5a - changes in the workforce includes a changing the place of work. Relocation will be an ETO reason. Reg.4(9) substantial change in working conditions to the employee s material detriment remains.
TUPE 2006 new reg.4a: incorporating contracts Terms incorporated in collective agreements do not transfer unless The collective agreement comes into force after the transfer, and The transferee is not a participant to that collective bargain. The CJEU in Alemo-Herron has supported the static and rejected the dynamic approach.
TUPE new reg.7(1)-(3): Dismissal Pre-transfer dismissal are still automatically unfair but If the transferor and the transferee agree to pre-transfer consultation then soon after the transfer the transferee should be able to dismiss employees for its own ETO reason.
TUPE 2006 new reg.9(7)(a): insolvency and variation New substituted reg.9(7) says that a permitted variation is where the reason for the variation is the transfer and not one of the reasons in reg.4(5). Current reg.9(7) says that a permitted variation is where the sole or principal reason for it is the transfer itself or a reason connected with the transfer that is not an ETO reason entailing changes in the workforce.
TUPE amended reg.11(6): ELI The obligation on the transferor to notify the transferee of the liability information is raised from 14-28 days before the relevant transfer. Has an opportunity been missed for LEI to be disclosed at the outset of the negotiation of the contract. Is existing reg.11(2) an inadequate disclosure provision.
TUPE 2006 new reg.13a: Individual consultation A new concept of the micro business employing fewer than 10 employees. If there is no recognised union or the employer has not sought employee representatives then the micro business can consult with each affected employee.
TUPE case law on service provision changes In Seawell Ltd v. Ceva Freight (UK) Ltd the EAT and Court of Session decided that a single employee working 100% for the client was not an organised grouping that transferred. The Court of Session cited with approval the EAT decision in Eddie Stobart Ltd v. Moreman & Others. There has to be a Team A or Team B whose principal purpose is the clients activities.
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Overview Flexible working first introduced with effect from 6 April 2003, restricted to parents of young and disabled children and carers Right to request a contractual variation e.g. to hours and times employee works or working from home Children and Families Act 2014 granted Royal Assent on 13 March 2014 extends right to request flexible working to all employees New provisions effective from 30 June 2014 New ACAS Code of Practice and accompanying Guidance (currently in draft format)
Key Legislation Part 8A of the Employment Rights Act 1996 The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 The Flexible Working (Procedural Requirements) Regulations 2002 ACAS GUIDANCE: ACAS Draft Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly Handling Requests in a Reasonable Manner to Work Flexibly: An ACAS Guide
Key Features If request made before June 2014, applicant must have responsibilities for care of: child under 17; child under 18 if disabled; care responsibilities for an adult Must have working continuously for employer for 26 week period prior to request One statutory request only in any 12 month period Agency workers, office holders and employees < 26 weeks continuous employment do not have statutory right to request; however, employer can still consider requests
Three in one: one chambers with three locations Requirements of Employees
Mandatory Requirements MUST...Make their request to work flexibly in writing, setting out the following details: a) The date of the application b) the change to working conditions they are seeking c) when they would like the change to come into effect d) what effect the requested change would have on the employer and how, in their opinion, any such effect might be dealt with e) that this is a statutory request f) if they have made a previous application for flexible working and the date of that application
Mandatory Requirements MUST...Not request flexible working under the statutory right more than one in any 12 month period (although they may apply without the statutory right)...attend either an initial (or if the meeting is rescheduled) or rescheduled discussion of their request. If the employee does not attend, the employer is entitled to treat their request as withdrawn.
Three in one: one chambers with three locations Requirements of Employers
Mandatory Requirements MUST...Complete the consideration process of any application within 3 months (INCLUDING any appeal). An employer can extend the time limit, but this has to be agreed by the employee....must consider the request objectively and they are entitled to reject it only on one of the eight statutory business reasons....must notify the employee of the decision (preferably in writing) to either: a) accept the request and establish a start date, or b) confirm a compromise agreed at the discussion, or c) reject the request, setting out the business reasons which are the basis of the decision and informing the employee of the right of appeal.
Good Employment Practice SHOULD...Introduce a Right to Request Policy, which should be put together in consultation with employees and their representatives and should cover the following: a) How employees should make the application, including who the application should be made to and what should be covered in the application b) A statement to the effect that the employer will consider the request and will only reject it for one of the eight business reasons c) Who can accompany the employee at any meetings regarding the request d) What arrangements there are for appeals e) The time limits on dealing with requests
Good Employment Practice SHOULD...On receiving an application, should arrange to discuss the matter with the employee at a meeting as soon as possible not necessary in all cases and no formal requirements for where and how this discussion should take place...consider applications in the order that they are received and judge each one on its individual merits (not necessary to make value judgments about most deserving cases). Once one is approved, this may change the business needs and impact on the statutory reasons to reject applications....allow the employee to be accompanied at any discussion, including by a work colleague or a trade union representative. This option should be made clear to the employee and sufficiently in advance so that they can make arrangements
Good Employment Practice SHOULD...Arrange the meeting at both parties convenience and reschedule the meeting once if the employee is unable to attend. If the employee does not attend either meeting, the employer is entitled to treat the request as withdrawn. However, they should investigate the reasons for nonattendance before reaching their final decision....allow the employee to appeal the employer s decision. There is no mandatory requirement for an appeal and the employer must bear in mind the fact that they are mandated to complete the flexible working request process within 3 months (unless an extension is agreed by the employee).
Three in one: one chambers with three locations Eight Statutory Business Reasons
Statutory Reasons to Refuse Requests 1. The burden of any additional costs is unacceptable to the organisation. 2. An inability to reorganise work among existing staff. 3. Inability to recruit additional staff. 4. The employer considers the change will have a detrimental impact on quality. 5. The employer considers the change would have a detrimental effect on the business ability to meet customer demand. 6. Detrimental impact on performance. 7. There is insufficient work during the periods the employee proposes to work. 8. Planned structural changes, for example, where the employer intends to reorganise or change the business and considers the flexible working changes may not fit with these plans.
Three in one: one chambers with three locations Recent Caselaw
Solicitors Regulation Authority v Mitchell UKEAT/0497/12/MC Little v Richmond Pharmacology Ltd UKEAT/0490/12/LA
Three in one: one chambers with three locations Discussion of Potential Pitfalls
Failure to make reasonable adjustments under Equality Act 2010 employee should (NB not mandatory) set out whether their request for flexible working is a request for reasonable adjustments Direct or indirect discrimination (e.g. indirect sex discrimination against women who are more likely to combine work with childcare responsibilities) Less favourable treatment of part time workers (unless this can be objectively justified in the circumstances)
Three in one: one chambers with three locations Any Questions?
Contact details Pump Court Chambers 3 Pump Court Temple London EC4Y 7AJ clerks@pumpcourtchambers.com d.fielder@pumpcourtchambers.com www.pumpcourtchambers.com www.costsreports.com 020 7353 0711
Recession busters umbrella contracts, zero hours workers Heather Platt pumpcourtchambers.com
Zero Hours Contracts A zero hours contract is one where a person is not contracted to work a set number of hours, and is only paid for the number of hours actually worked. While the employer does not guarantee any work, a common feature of these arrangements is that staff are expected be on standby, and so are unable to look for employment elsewhere. 36
Zero obligations? In most situations there is no mutuality of obligation, meaning that workers do not acquire the necessary employment status required to gain a number of employment protections, the chief one being protection from unfair dismissal. Contracts need to be drafted carefully and must reflect what actually goes on in practice. In this regard, while an employee may be required to be on call at home waiting for work, the employer must ensure that the individual in question is not required to undertake work if offered. 37
Zero obligations? Pulse Healthcare Ltd v Carewatch Care Services Ltd and ors EAT 0123/12 the claimants were held to be employed under contracts of employment despite the employer s assertion that there was no mutuality of obligation. The documentation included a Zero Hours Contract Agreement. However, the EAT upheld the tribunal s finding that the zero hours contracts did not reflect the true agreement between the parties. 38
Zero obligations? Even though most people on zero hours contracts will not have employee status, they will be workers and therefore have a number of employment rights, including holiday pay under the Working Time Regulations 1998. 39
Government consultation The Business Secretary Vince Cable has announced that the Government will launch a consultation on tackling abuse of zero-hour contracts, and will ask the Low Pay Commission (LPC) to consider how the national minimum wage (NMW) may be raised faster over the medium term. 40
Areas of concern BIS states that its review highlighted four key areas of concern: 'exclusivity clauses lack of transparency uncertainty of earnings, and the balance of power in the employment relationship 41
Recent cases Podlasiak v Edinburgh Woollen Mill Limited (ET decision) P was employed on a zero- hours contract which provided that, on termination, she would be paid 1 in lieu of any untaken holiday. When P left her employment she had three days' untaken leave, for which she would have been paid 176 net if the leave had been taken during her employment. ET: requires Reg 14 of the Working Time Regulations 1998 SI 1998/1833 to be interpreted so as not to permit an employer to pay a token sum on termination in lieu of untaken leave 42
Dismissal resulting from employer's ignorance of the law may be fair Docherty and anor v SW Global Resourcing Ltd (Inner House of Court of Session) The Court remitted the instant case to the tribunal to consider whether the employer had acted fairly by requiring the claimants to move to zero- hours contracts where it had failed to appreciate that this would change their employment status and cause them to lose their accrued statutory rights, such as the right to a redundancy payment 43
The Future June 2013 A bill to prevent the use of zero hours contracts Perhaps a code of practice or guidance; statutory detriment protection; higher minimum wage/pay equivalence; the prohibition of zeroing down ahead of redundancy; restrictions on reductions for non-business reasons; and the expansion of constructive dismissal laws. Queen s Speech June 2014 44
Partnerships 45
Partners not usually employees partnership or firm is not a 'person' or legal entity partner may contribute either property, skill or labour. A person who contributes property without labour, and has the rights of a partner, is usually termed a 'sleeping' or 'dormant partner' question whether or not there is a partnership is one of mixed law and fact. 46
Salaried partners Confusing label M Young Legal Associates v Zahid and ors [2006] EWCA Civ 613, applied simply to enhance the status of an individual who is truly an employee Stekel v Ellice Megarry J: 'The term salaried partner is not a term of art, and to some extent may be said to be a contradiction in terms'. 47
Limited liability partnerships Limited Liability Partnerships Act 2000 and a new legal entity was created: the LLP Section 4(4) LLP Act 2000 provides for employment status of LLP members (i.e. not employees unless ) 48
Reported cases Tiffin v Lester Aldridge LLP [2012] EWCA Civ 35 not employee Kovats v TFO Management LLP and another - [2009] All ER (D) 116 (May) not employee Bates van Winkelhof v Clyde & Co LLP and another - [2013] 1 All ER 844 not employee but could have been worker so no PIDA but could pursue sex discrim. 49
true status? What should lawyers look out for? consider whether or not their client may in fact be an employee and therefore qualify for certain employment law protections unavailable to 'genuine partners'. Bates van Winkelhof SC decision 50
Three in one: one chambers with three locations PROTECTED CONVERSATIONS AND EARLY CONCILIATION ARRANGEMENTS TIM DRACASS
Protected Conversations Basic provisions s. 111A ERA 1996 mechanism by which pretermination negotiations are rendered inadmissible in any subsequent unfair dismissal proceedings. Covers any pre-termination offer or discussion with a view to employment being terminated on terms agreed, whether instigated by employer or employee. Useful tool for both parties to consider at an early stage.
Protected Conversations Basic provisions (continued) Differs from traditional without prejudice rule because there is no need for an existing dispute to have arisen Statutory provisions supplemented by Acas Code and accompanying Acas Guide.
Protected Conversations Limitations Only applies to ordinary unfair dismissal case automatically unfair dismissals (e.g. whistleblowing, trade union membership, health and safety activities cases etc) are excluded (s. 111A(3)) N.B. provides easy route for unscrupulous claimants to circumvent statute. All other types of claims (e.g. discrimination, breach of contract) fall outside scope.
Protected Conversations Limitations (continued) Where ET forms opinion that something said or done during the pre-termination negotiations was improper or connected with improper behaviour, inadmissibility rule applies only to extent that ET considers it just. N.B. improper conduct not defined further matter of fact for ET to determine in each case, but certainly broader than unambiguous impropriety test that applies in traditional without prejudice rule.
Limitations (continued) Protected Conversations According to the ACAS guide improper behaviour might include: All forms of harassment, bullying and intimidation All form of victimisation and discrimination Putting undue pressure on a party (e.g. by not allowing reasonable time for considering the offer, or a tactic whereby the amount of the offer diminishes progressively whilst the employee is given time to consider it) An employer saying before any form of disciplinary process has begun that if a settlement is rejected, the employee will be dismissed
Protected Conversations Procedure Certain procedural expectations now set out in the Code: Generally a minimum of 10 calender days should be allowed to consider any proposed written terms Good practice to allow employees to be accompanied by a colleague or union representative in any face to face meeting to discuss settlement.
A few observations Protected Conversations Laudable aim, but severely undermined by limitations in scope. Where a dispute has already arisen, safer course will be to proceed under without prejudice label as well (on a belt and braces approach). May provide useful tactical opportunities for employees (see example in handout).
Acas Early Conciliation Basic provisions Provisions contained in s. 18A ETA 1996 became mandatory for all relevant proceedings from 6 May 2014. Full list of relevant proceedings contained in s. 18 ETA 1996 all the usual suspects present. Purpose is to encourage early settlement and reduce number of claims.
Acas Early Conciliation The detail Step 1 Potential claimant must make contact with Acas by telephone or internet and submit an early conciliation form. Form must be submitted online or by post/ hand-delivering to address stated. NB beyond the submission of the form, there is no obligation on either party to take any further part in the process.
Acas Early Conciliation The detail (continued) Step 2 Acas will contact the potential claimant and potential respondent Aim is for initial contact within 2 working days of receipt of early conciliation form. Provided potential claimant gives express consent, contact will then be made with potential respondent. If no contact can be made, settlement will be deemed not possible. The conciliation period will last 1 month. Where a party is legally represented, conciliator will liaise with legal representative rather than party directly.
Acas Early Conciliation The detail (continued) Step 3 The issue of a certificate of compliance (early conciliation certificate ECC ) Certificate required before claim can be presented to Tribunal. Failure to provide details of ECC will lead to claim form being rejected.
Acas Early Conciliation Exemptions Multiple claimant cases (provided one claimant has complied). Cases where the respondent has contacted Acas under s. 18B in relation to the dispute. Interim relief claims
Acas Early Conciliation Impact on time limits 2 key principles: Time spent involved in early conciliation should not count when calculating time limits (i.e. time limit will be paused ) A claimant should have at least one month after early conciliation process has ended to issue proceedings. Principles brought into play by complex primary and secondary legislation.
Acas Early Conciliation Impact on time limits (continued) Normal time limit clock will stop running day after day A (defined as the day on which the claimant supplied required information to Acas i.e. submits the early conciliation form) Normal limitation period starts running again on day B (defined as the day the claimant received the ECC)
Acas Early Conciliation Impact on time limits (continued) Normal time limit is automatically extended by the period beginning with day A and ending with day B. If limitation period would have expired on a day between day A and day B the time limit is automatically extended to one month after day B
Acas Early Conciliation Impact on time limits (continued) Illustrative example no 1 (see handout) Illustrative example no 2 (see handout) N.B. as yet unclear whether additional 1 month period calculated on a one month minus one day basis or on a corresponding date analysis (i.e. one calendar month later). Conflicting guidance! Obviously prudent, at this stage, to adopt the more cautious interpretation!
Acas Early Conciliation Impact on time limits (continued) Worth noting: Where time limit already expired, submitting early conciliation form will not extend time. Limitation clock will not stop or be extended where it is the potential respondent who initiates early conciliation (under s. 18B) The extension of time provisions operate without prejudice to the existing powers of the ET to extend time for bringing claims in certain circumstances.
Acas Early Conciliation A few observations In reality, you may think, just another hoop for would be claimants to jump through. Similarities to the statutory dispute resolution procedures and we remember how well they worked! Considerable scope for satellite litigation, most likely surrounding time limits. How effective can the scheme be when no requirement or incentive for the parties to actively engage in the process?
Three in one: one chambers with three locations Any Questions?
A View from the Bench Musings of a Part-time Employment Judge Gary Self pumpcourtchambers.com
Brave New World? Fees and Consequences ACAS conciliation and Consequences Employer Penalties and Consequences Moving Forward
A Head Start The Pleadings Preliminary hearings Deposit Orders and Strike outs Pragmatic Realism
The Keys to the Door Identification of the Issues Focussed statements / cross examination Pre-trial advantage Disability Discrimination Example
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