Annual employment law updateJanuary 2016, Birmingham

Today’s session 1. TUPE Update2. Collective

redundancies3. Working Time

Regulations 19984. Changing employment

contracts5. Right to be

accompanied 6. Small Business,

Enterprise and Employment Act 2015

7. Parental leave 8. Privacy in the

workplace9. Social media update10. Whistleblowing11. Discrimination 12. Modern Slavery Act

201513. Apprenticeships 14. Tribunal fees update15. Key updates for 2016

1. TUPE Update

Brief Recap – what is TUPE?TUPE applies to a "relevant transfer", which means either or both of the following:

• Business Transfer - A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity. This involves three elements:

– an economic entity;– a transfer of that economic entity; and– the economic entity retaining its identity following the transfer.

• Service provision change - A client engaging a contractor to do work on its behalf, reassigning such a contract or bringing the work "in-house". This can, therefore, encompass an initial (or first generation) outsourcing, a subsequent (or second generation) outsourcing or an in-sourcing. However, the supply of goods and "one-off buying-in of services" are excluded. Activities carried on after a change in service provider must be "fundamentally or essentially the same" as those carried on before it.

What is a service provision change? 3 conditions must be met:

• Organised grouping of resources which must have, as its principal purpose, the provision of services to a particular client

• Not a single specific or task of a short term duration

• Not wholly or mainly the supply of goods

2014 Regs: service provision changeTransfers on or after 31 January 2014:

• Activities: “fundamentally or essentially the same”

• Change reflects existing case law on the meaning of ‘activities’

TUPE – Key 2015 CasesRynda (UK) Ltd v RhijnsburgerWhen attempting to establish whether a service provision change arises:• Identify the services provided• List the activities performed • Identify the employees carrying out those activates• Consider whether these employees form an organised

groupingAn organised grouping can be a single individual

TUPE – Key 2015 CasesOrganised Grouping?Inex Home Improvements Ltd v Hodgkins & others• Inex - painting and decorating services• Nov & Dec 2013 – staff temporarily laid off• January 2014 – contract was awarded to another contractor

• ET: not an “organised group” because the staff were laid-off• EAT disagreed

• Despite temporary cessation of work staff still an organised group

• Purpose, nature and length of cessation is relevant

TUPE – Key 2015 CasesIs the employee assigned to the organised grouping?BT Managed Services Ltd v Edwards

• Mr Edwards permanently unable to return to work• Not assigned to organised grouping• Connection to business was administrative

(entitlement to health insurance)• Distinguished between: long-term sick/maternity leave/ lay-

off• Question of fact- the reason, nature and length of the

cessation is relevant, as is the likelihood that the employee will return to work in the future.

TUPE – Key 2015 CasesOther cases of interest• Ottimo Property Services Ltd v Duncan - a service provision

change can, in principle, involve a group of clients

• Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) – instruction to a service provider to remove a particular employee did not, in itself, mean that employee is no longer assigned

• ICTS UK Ltd v Mahdi and ors - Subsequent events may be relevant to whether a task was intended to be of "short-term duration"

TUPE – Summary• When attempting to establish whether an SPC arises:

– Identify the services provided– List the activities performed - are they “fundamentally or

essentially the same”– Identify the employees carrying out those activates– Consider whether these employees form an organised

grouping• Is the employee assigned?• An organised grouping can be a single individual• Conversely, there can be more than one client in an SPC but the

transferor should not be one of them• Where appropriate ensure agreements have clauses dealing with

removal of employees, setting out the procedure and authority for such removal

• Consider contractual indemnities

2. Collective Redundancies

S.188 Trade Union and Labour Relations (Consolidation) Act 1992• Directive is implemented into UK law by Trade Union and

Labour Relations (Consolidation) Act 1992 (TULRCA)

• Collective redundancies will arise (and the information and consultation requirements will be triggered) where an employer is:

“proposing to dismiss as redundant 20 or moreemployees at one establishment within a periodof 90 days”

• Ongoing issue over what is meant by “establishment”

TULCRA

Where an employer fails to comply with its collective consultation obligations, a complaint may be made to an employment tribunal, which can make a protective award of up to 90 days’ pay for each affected employee

USDAW v WW Realisation 1 Ltd• Thousands of people lost their jobs when

Woolworths and Ethel Austin went into administration.

• Should the consultation provision apply to employees at stores of less than 20 people?

• ET said no – staff at establishments of less than 20 received no award

Decision appealed to EAT

EAT held • UK failed to implement original Directive by

including words “at one establishment” in s.188 TULRCA

• Those words should be deleted

• Outcome - those working in shops with fewer than 20 employees should have been collectively consulted with and would get protective award

Further appeal to Court of AppealCourt of Appeal referred a question to European Court of Justice (ECJ):

Does the phrase ‘at least 20’ in the Directive refer to the number of dismissals a) across all or some of an employer’s

establishments in which dismissals are effected within the 90 day period, or

b) in each individual establishment?

ECJ answer• “Establishment” means the unit to which the

workers made redundant are assigned

• Case referred back to Court of Appeal for judgment but not likely to be favorable for employees

• Watch this space…

3. Working Time Regulations 1998 (WTR)

WTR - Topicsa) Holiday pay calculations (commission and

overtime)

b) Relationship between sickness absence and annual leave entitlement

c) Is travel working time for peripatetic (mobile) workers?

WTR - Overview

• Derived from European legislation - Implements European Working Time Directive

• Key rationale behind the Directive is protection of workers’ health through ensuring adequate rest periods are taken

• Case law further developed in 2015

WTR Provisions – Holiday • Workers are entitled to statutory 4 weeks basic annual

leave

• The UK provides an additional 1.6 weeks statutory annual leave

• A worker is entitled to be paid at the rate of a “week’s pay” in respect of each week of annual leave

• ERA 1996 set out methods for calculating a week’s pay according to terms of remuneration package

a) Holiday Pay: CommissionLock v British Gas Trading Ltd (EAT)

• EAT heard the appeal December 2015 - judgment is currently awaited. • The appeal concerned whether Bear Scotland Limited –v- Fulton and

another (EAT) should have any bearing on this case given that Bear Scotland concerned non-guaranteed overtime and Lock relates to commission.

• British Gas is also arguing that Bear Scotland was incorrectly decided when it concluded that domestic legislation could be interpreted purposively to give effect to EU Law

• Some holiday pay cases remain stayed pending the outcome of Lock (particularly claims against private sector employers and/or in respect of commission payments). Others are proceeding.

• A further tribunal decision is expected in the Lock litigation - this will deal with the correct reference period and the level of holiday pay to which Mr Lock was entitled.

a) Holiday Pay: OvertimePatterson v Castlereagh Borough Council

• Northern Ireland Court of Appeal – not binding • But – may be cited in English and Welsh tribunals• Key question – should purely voluntary overtime be

included in calculation of holiday pay?• Answer – will depend on facts

NB. 1 July 2015 - Deduction from Wages (Limitation) Regulations 2014 – 2 year backstop on wages claims

b) Holiday entitlement and sick leavePlumb v Duncan Print Group Ltd

• Sick leave is intended to enable an individual to recover from illness

• Annual leave is intended to enable a worker to enjoy periods of rest and relaxation for reasons of health and safety

• It is inconsistent to compel a worker absent on sick leave to take annual leave at the same time

• 18 month limit on carry over of unused annual leave

c) WTR – Travel and Working Time“Working time” is defined as:

– any period during which a worker is working, at his employer's disposal and carrying out his activity or duties;

– any period during which he is receiving relevant training;

– any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement.

“Rest period” – any period that is not working time

c) WTR – Travel and Working TimeFederacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security

Where there is no fixed office base or location, working time starts when they leave home and not when they attend their first job

• This is relevant to calculation of working hours, rest periods and possibly holiday entitlement (if accrued according to hours worked)

• Pay not affected as not governed by WTR but check employment contracts for enhanced terms

Working TimeEdwards and another v Encirc Ltd

Is time spent attending union/health and safety meetings “working time”?

• Potentially, yes

Practically what do employers do in the meantime?

• You may wish to err on the side of caution and treat all union and health and safety meetings as part of working day

4. Changing employment contractsSparks & others v Department for TransportClause purported to give the employer the right to make unilateral changes to contractual termsAcceptable to use if:• Clear• Unambiguous• Sufficiently broad to cover requirements

5. Right to be AccompaniedRevised Acas guidance• Absolute right to choose either colleague or trade

union representative/official• A worker can change their companion• Good practice to give an employer enough time

to make arrangements to allow a chosen companion to attend

• The employee should provide the name of the representative and specify whether a colleague or union rep/official

Right to be Accompanied 2Stevens v University of Birmingham• Does an employee have a right to be represented by

someone other than colleague or union representative?

• Held: breach of trust and confidence not to allow employee to be accompanied by individual of his choice

• Refusal could be sufficiently severe to constitute a constructive dismissal

Point to note:• Consider why the request has been made and the

effect of refusal

6. Small Business, Enterprise and Employment Act 2015 (SBEEA)• Two areas of note:

Penalty for underpayment of the National Minimum Wage

Zero Hours Contracts

Penalty for underpayment of National Minimum Wage (NMW)• National Minimum Wage Act 1998 amended –

penalty for non-payment of NMW now maximum of £20,000 per worker

• Previously was £20,000 per notice (regardless of the number of affected workers)

• Government currently names and shames offending employers

Zero hours contracts – exclusivity clauses• Exclusivity clauses that seek to restrict a

worker’s ability to work under another contract or require authorisation from the employer to do so are unenforceable

• Employees protected from unfair dismissal • Workers and employees protected from

detriment• Came into force 11 January 2016

7. Changes to parental leave• Statutory pay increase: £138.18 to £139.58 per week• From 5 April 2015:

– Parental leave now available up to child’s 18th birthday

– Antenatal appointments – fathers and partners can take unpaid leave for up to two appointments

– Adoption leave and pay – primary adopters can take paid time off for up to 5 adoption appointments and secondary adopters for up to 2 appointments

– Surrogacy – primary adopter can take adoption leave

Shared Parental Leave• From 5 April 2015

• Allows mother to share or split maternity leave

• Must be taken before child’s first birthday

• To be extended to working grandparents by 2018

New Shared Parental Leave Continuity of employment

Grant or refuse SPL

Entitled to statutory SPL

(52 weeks) –(maternity

leave taken)

26 weeks service

Economically active

Parental responsibility

Main responsibility with named

partner

8. Privacy in the Workplace

Privacy in the Workplace• Increasing complexity of technology• Greater use of iPads, laptops, smartphones• What issues arise now that employees can

record images/conversations in the workplace so easily?

Covert recording by employeeChairman & Governors of Amwell View School v Dogherty Covert recordings by the employee:• Usually only admissible in evidence if the

recording relates to time when the employee was present

“No ground rule could be more essential to ensuring a full and frank exchange of views…than the understanding that their deliberations would be conducted in private and remain private”

Covert recording by employee 2 Punjab National Bank (International) Ltd v Gosain• Employee recorded panel discussions when she

was not present• Recording included allegedly discriminatory

comments not relevant to grievance or disciplinary hearings

• Could be distinguished from Dogherty• Interests of justice supported its admissibility due

to nature of comments

Enforced Subject Access Requests • It is now a criminal office for employers to force

applicants and employees to obtain and disclose a copy of their criminal record through a subject access request under the Data Protection Act 1998

• Risk potentially unlimited fine

• Employers can still use DBS checks where relevant

Monitoring employees’ private messages at work• Recent ECtHR ruling – binding on UK courts• Employers have right to monitor online private

messages (including emails, online messenger and even Whatsapp) sent during working hours from an account used for work related communications

• Monitoring must be reasonable and proportional“not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”

Monitoring employees’ private messages at work• Ensure workplace communications

policies:– take account of reasonableness and

proportionality – are clear

– are brought to the attention of and understood by employees

9. Social Media Update

Social Media Dismissal

“on standby tonight so only going to get half p****d, lol”

British Waterways Board v Smith

Social Media Dismissals

• Failure to take timely action once aware of misconduct; and

• Searching for evidence against an employee…

…does not necessarily make a dismissal unfair!

British Waterways Board v Smith

Why was the dismissal fair?

• The derogatory remarks about the employer; combined with

• The reasonable perception of a H&S risk…

…resulted in a reasonable conclusion that trust and confidence had been broken

British Waterways Board v Smith

Misuse of email dismissal

• Employer actively sought evidence of gross misconduct as way of avoiding paying notice pay

• Discovered employee sent pornographic email from his work account in 2008

• Dismissal held to be fair

Williams v Leeds United Football Club

What made the dismissal fair?

Court looked at all the circumstances of the case including:• Position held by the employee • Nature of the contract and the employer’s

business• Consequences of the breach

Williams v Leeds United Football Club

Summary• Cases highlight the view the tribunals are taking

with dismissals• Treat with caution• Prudent employers should:

– maintain effective policies on use of social media and electronic communications; and

– ensure that those policies are properly implemented and that staff are aware of them

10. Whistleblowing

Protected Disclosures• Employees have right not to be dismissed or

subjected to a detriment for making a protected disclosure

• After a number of disasters eg Zeebrugge it was recognised that employees should be protected to encourage them to raise concerns – health & safety, criminal offices, etc.

Protected DisclosuresBarton v London Borough of Greenwich• Concerned an employee’s disclosure to Information

Commissioner’s Office (ICO) in breach of employer’s instruction

• Although employee had made a qualifying disclosure it was not a protected disclosure

• Management instruction not to contact ICO was reasonable as specific to the particular investigation

• This case does not mean management can stop employees contacting prescribed persons

Protected Disclosures & Self InterestChesterton Global Ltd v NurmohamedUnderwood v Wincanton Plc• Two cases involving individual contractual disputes • Held these can be protected disclosures and within the

public interest• “Public” can be a small section of society• Cases suggest a low hurdle of what may be a

protected disclosure made in matters of self interest• Chesterton is being appealed to the Court of Appeal

but is not due to be heard until November 2016

11. Discrimination

Indirect discrimination by association• 2008 – a claim of direct discrimination on grounds of

disability can be brought by someone who is not disabled but had been discriminated against because of some else’s disability (Coleman v Attridge Law)

• 2010: Equality Act prohibits direct discrimination by association

• 2015 - a number of cases seem to show an extension of this trend: – victimisation by association (Thompson v London

Central Bus Company Ltd)– indirect discrimination by association (Chez

Razpredelenie Bulgaria AB (CRB) v Komisia za Zashtita ot Diskriminatsia)

Is type 2 diabetes a disability?Metroline Travel Ltd v Stoute• Tribunal held yes, but EAT held no• Employee followed diabetic diet avoiding

sugary foods• Held: abstaining from sugary drinks was not a

“diet” and therefore could not constitute a “treatment”

Other areas to note…

Other areas to note…• Modern Slavery Act 2015

• Apprenticeships

• Tribunal fees update

12. Modern Slavery Act 2015

Slavery and Human Trafficking StatementFrom 29 October 2015, businesses who:• supply goods or services, and• have a total annual turnover of more than £36

millionmust prepare a slavery & human trafficking statement for each financial year

Note transitional provision:• Organisations with a financial year ending before 31 March 2016

are under no requirement to make statement in respect of that financial year

13. Apprenticeships • From 26 May 2015 new scheme of “approved

English apprenticeships” introduced

• Transitional provisions:– Existing apprenticeships– New apprenticeships where there is no

approved apprenticeship standard

Note: Approved apprenticeship standards can be found on gov.uk

14. Tribunal fees statistics (total claims)

2012/13 2013/14 2014/150

50,000

100,000

150,000

200,000

250,000

191,541

105,803

61,306

Tribunal fees update• Introduced to encourage settlement outside of

tribunal system and reduce operational costs of the system

• Unpopular with unions and employee groups• Court of Appeal dismissed UNISON’s challenge to

fees• UNISON have applied for permission to appeal• In June, Government began review of fees• Scottish Government intends to abolish fees

15. Key Updates for 2016

Trade Union Bill 2015/2016• Ballot thresholds• Ballot results• Notice of industrial action• Expiry date of industrial action• Supervision of picketing• Facility time

Apprenticeship levy• Expected to come into force in April 2017• All employers will pay 0.5% of their paybill

However…• All employers will receive £15,000 annual

allowance against the levy• In effect only employers whose paybill exceeds

£3m per year will contribute (fewer than 2% of employers)

NLW and NICs6 April 2016• National Living Wage• £7.20 per hour- working people 25 and over • Greater impact on the regions versus the South

East

National Insurance Contributions • Employer NICs abolished for apprentices under

the age of 25

Gender pay gap regulations• Government due to publish regulations by 25

March 2016• All employers with more than 250 employees

will be required to publish information about their gender pay gap

• Government intends to include bonus information

• Government has pledged to work with business to eliminate all-male boards in top 350 companies

Gender Pay Gap Regulations

Immigration Bill 2015-16 • Contains proposals to curb illegal working and protect the

exploitation of migrant workers by:• Extending the existing criminal offence of knowingly

employing an illegal migrant from two years to 5 years;• Creating a new offence of illegal working which will

enable the earnings of illegal workers to be seized;• Giving the secretary of state the power to introduce an

‘immigration skills charge’ on certain employers who sponsor skilled workers from outside the EEA; and

• Requiring public authorities to ensure that public sector workers in customer-facing roles speak fluent English.

• Bill is currently making its way through the House of Lords

Speak to us…

Tom Toulson| 0121 237 3956 Tom.toulson@brownejacobson.com

Helen Badger| 0121 237 4554 Helen.badger@brownejacobson.com

James Tait| 0121 237 3956James.tait@brownejacobson.com