Tuesday, 4 April 2017

APRIL 2017 EDITION EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  COLLEAGUES, READERS AND CHUMS,

Well,   we finally triggered article 50 !     it's done and there's no going back.    My belief is that it will all work out,  just on a personal note,  I grew up with New Zealand Butter, New Zealand Lamb, Canadian Maple syrup and I sent postal orders to the USA for my imported blues records paying only postage, not import duty! We manufactured our trains in Crewe, instead of being compelled to give the contract to Germany, we repaired our own ships in our own shipyards instead of European yards,  AND,  we could catch our own fish with our own fishing fleet.  And just to show how even minded I am,   as a young man,  I worked in Germany for two years,  it was fine, I was made welcome, and appreciated for the job that I did,  I just applied for a work permit !       Phew!      sorry if that sounded a bit like dear old Douglas Fairey having a rant,    it's just that I see it all as an "opportunity"   and not the end of civilisation.
          The issue of self-employed or not,   rumbles on,   and this week the case of BBC presenters reared its head,    but I had decided you had probably had enough for now,   if you really want to,  you can go to People Management  and read their piece.
   


           Read on for details of this months reports and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News: 

Article 50 and the implications on UK Employment Law

The triggering of Article 50 has left many questions on the implications of this decision for workers and employers in the UK.                             
  Currently, EU citizens can live and work in the UK without the need for work permits or visas. Although Brexit might eventually mean an end or restrictions on this free movement of people, any changes are yet to be decided. In the meantime, both employers and employees will be looking for reassurance for what it means for them.

No immediate change
  Among all the uncertainty, one thing is certain; there is no immediate effect on employment law or the right of EU nationals to work in the UK. Article 50 triggers a 2 year process and our legal framework will remain in place until at least the end of those two years.
  How significant is EU employment law in the UK?
  Much of our employment law is based on EU law. The UK is currently required to implement EU law. The Working Time Regulations 1998 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are two significant examples of regulations based on EU law.

Read the rest of this informative article on MY BLOG               

This excellent piece by Mark Rothman gives an overall picture of article 50 implications  see Marks pages at
 

 
Newsflash:      

Long-Term Absence Dismissals

In a dismissal for long-term sickness absence, is the test for discrimination arising from disability different from the test for unfair dismissal?     

Not really, held the Court of Appeal in O'Brien v Bolton St Catherine's Academy.

At the time of her dismissal, the Claimant had been absent from work for more than a year and there was no certainty as to when she would return. As the Court of Appeal acknowledged, the Claimant's case that her dismissal could not be justified at that stage was very weak, and any finding that such a dismissal was unfair would require considerable scrutiny.

But, at her appeal hearing, the Claimant produced evidence that she was fit to return to work imminently and, under these unusual circumstances, the failure to take this new evidence into account rendered the dismissal unfair. This finding was upheld by the Court of Appeal, noting that it was "near the borderline".

see the full article on my blog

Thanks to James Medhurst of Fieldfisher for preparing this case summary

 

 

And this,   just in: 

TUPE: Employee Liability Information 

This is really for Employment Law Students or if you get involved in TUPE situations on a regular basis!       
When giving Employee Liability Information to a transferee pursuant to reg 11 of TUPE, a transferor incorrectly stated that a Christmas bonus was non-contractual, when it turned out it was contractual. Was this a breach of reg 11, giving rise to a compensation claim?

No, held the EAT in Born London Limited v Spire Production Services Limited.

Born took over a contract from Spire to print Sotheby's catalogues. Before the transfer, Spire provided Born with Employee Liability Information. Spire provided details of the employees' Christmas bonus, an stated that it was 'non-contractual'. Born contended that, because the bonus was contractual in nature, Spire had given incorrect Employee Liability Information and Born should be compensated for this misstatement under reg 12 of TUPE.

The employment tribunal concluded that Born's claim had no reasonable prospect of success. For, even assuming the bonus was contractual, all regulation 11 had required Spire to do was to provide particulars of employment as defined by section 1 of the Employment Rights Act 1996. This did not require Spire to state whether or not remuneration was contractual.
Read the full piece on my blog page

This is a bit of a read,  but,  it underlines for anyone who deals in transfers, that you do have an obligation to provide the information on your employees,  or you could be held liable by the incoming company.    On this occasion they got away with it on a technicality, but,  it still would have cost them hefty legal fees.

Finally,   as ever I'm indebted to That Nice Daniel Barnett site for their excellent source material. 
    see them at


 

 


Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:

Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     
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Health& Safety

Issue

A child was not allowed to play in a soft play area with no socks on as not having socks on was against health and safety.

Panel opinion

There are no workplace Health and Safety regulations requiring socks to be worn in a soft play area.  NHS online advice is to cover up warts or veruccas if taking part in communal activities, to minimise the risk of infections spreading.  This company’s wider requirement that all children wear socks might well reflect this public health concern.  In this case it would be better to explain the policy and refer to the public health concern rather than to give the impression that there are Health and Safety regulations requiring it. Perhaps the soft play provider could provide socks at a small additional charge for those children who turn up without them to avoid disappointment.

Issue

A GP surgery advised patients that it would no longer take repeat prescription requests over the telephone due to health and safety reasons.

Panel opinion

Health and safety regulation does not prevent telephone prescription. GP surgeries have discretion as to whether they offer this service. This surgery has said it does not do so because of a risk that incorrect medication and/or dosages may be prescribed. Their recorded message says this is ‘due to health and safety reasons’ but it would have been more accurate and helpful to have explained this policy in terms of patient safety

 


 

Issue

An employee was advised that using antibacterial wipes to clean inside vehicles could lead to the development of a ‘superbug’.

Panel opinion

Superbugs are a real cause for concern for everyone, but the use of chemical disinfectants in antibacterial wipes is not going to make the situation worse when used correctly. The advice on the use of antibacterial wipes is to use one wipe per surface and then discard to avoid potentially spreading any bacteria to other surfaces. They are effective for the purpose being proposed, and seem like a sensible choice.

 

 

  
 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2017 paul murray HR consultant, All rights reserved.
I send this to all my valued clients, colleagues and people I've actually spoken to, if you find this an intrusion, my apologies, please just unsubscribe.

Monday, 3 April 2017

Long-Term Absence Dismissals





Long-Term Absence Dismissals

Thanks to James Medhurst of Fieldfisher for preparing this case summary.
In a dismissal for long-term sickness absence, is the test for discrimination arising from disability different from the test for unfair dismissal?

Not really, held the Court of Appeal in O'Brien v Bolton St Catherine's Academy.

At the time of her dismissal, the Claimant had been absent from work for more than a year and there was no certainty as to when she would return. As the Court of Appeal acknowledged, the Claimant's case that her dismissal could not be justified at that stage was very weak, and any finding that such a dismissal was unfair would require considerable scrutiny.

But, at her appeal hearing, the Claimant produced evidence that she was fit to return to work imminently and, under these unusual circumstances, the failure to take this new evidence into account rendered the dismissal unfair. This finding was upheld by the Court of Appeal, noting that it was "near the borderline".

The Court of Appeal rejected a submission that the employment tribunal had conflated the tests for unfair dismissal and discrimination arising from disability. Despite differences in the statutory wording and the burden of proof, they should rarely lead to different results in the context of long-term sickness. A failure to consider them separately will not be an error of law.
 
My Comment:  My thanks to the Daniel Barnett site for their always informative items.   This does underline the need for carful scrutiny of all LTS terminations,    even when done properly,   it can fall at the fence on a technicality.  

TUPE: Employee Liability Information

This is really for Employment Law Students or if you get involved in TUPE situations on a regular basis!       


When giving Employee Liability Information to a transferee pursuant to reg 11 of TUPE, a transferor incorrectly stated that a Christmas bonus was non-contractual, when it turned out it was contractual. Was this a breach of reg 11, giving rise to a compensation claim?

No, held the EAT in Born London Limited v Spire Production Services Limited.

Born took over a contract from Spire to print Sotheby's catalogues. Before the transfer, Spire provided Born with Employee Liability Information. Spire provided details of the employees' Christmas bonus, an stated that it was 'non-contractual'. Born contended that, because the bonus was contractual in nature, Spire had given incorrect Employee Liability Information and Born should be compensated for this misstatement under reg 12 of TUPE.

The employment tribunal concluded that Born's claim had no reasonable prospect of success. For, even assuming the bonus was contractual, all regulation 11 had required Spire to do was to provide particulars of employment as defined by section 1 of the Employment Rights Act 1996. This did not require Spire to state whether or not remuneration was contractual.

The EAT agreed. Section 1 of the ERA 1996 sets out the requirements on employers in respect of a statement of employment particulars. Those particulars were not to be read as limited to contractual terms and conditions. But there was no obligation to state whether the particulars were contractual or not. Saying that the bonus was non-contractual went further than the particulars required to be provided for reg 11 purposes. There was therefore no breach of reg 11.

In cases like this it is up to the transferee to undertake more due diligence on whether employee remuneration is contractual or not. And had this been a case where the transferee enjoyed well drafted warranties and indemnities from the transferor, a claim against the transferor might have arisen accordingly. But in service provision change cases these are usually non-existent.


MY Thanks to the ever excellent Daniel Barnett site and to  Dr John McMullen for this item.   

Article 50 and the implications on UK Employment Law

This excellent piece by Mark Rothman gives an overall picture of article 50 implications  see Marks pages at :  


The triggering of Article 50 has left many questions on the implications of this decision for workers and employers in the UK.
  Currently, EU citizens can live and work in the UK without the need for work permits or visas. Although Brexit might eventually mean an end or restrictions on this free movement of people, any changes are yet to be decided. In the meantime, both employers and employees will be looking for reassurance for what it means for them.
 
No immediate change
  Among all the uncertainty, one thing is certain; there is no immediate effect on employment law or the right of EU nationals to work in the UK. Article 50 triggers a 2 year process and our legal framework will remain in place until at least the end of those two years.
  How significant is EU employment law in the UK?
  Much of our employment law is based on EU law. The UK is currently required to implement EU law. The Working Time Regulations 1998 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are two significant examples of regulations based on EU law.
  However, this is by no means the full picture. There are some significant areas of UK employment law that have nothing to do with EU law. The law on unfair dismissal is probably the most important. The right to request flexible working and the national minimum wage are further examples. What is more, the UK created employment protection in areas such as race discrimination, long before the relevant EU directive came into effect. Finally, the UK sometimes builds on the minimum standards in EU directives to give more generous rights. This is known as gold-plating. For example, EU law only requires employers to give workers 20 days’ paid holiday but UK regulations increased that entitlement to 28 days.
  Possible changes to UK employment law
  No one can say with any certainty what the future impact of Brexit will be on UK employment law. It all depends on the terms of the trade agreements that the UK negotiates with the EU or its individual member states. One possible outcome is that the UK would still have to apply most EU employment laws as a condition of accessing the single market. This is the case for non-EU countries such as Norway.
  At the other end of the spectrum, the UK may be released from applying EU law. In this scenario, the consensus is that a wholesale repeal of all UK employment law based on EU law is very unlikely. Commentators broadly agree that likely targets for changes include the regulations on agency workers and elements of the working time regulations and TUPE. However, this will depend very much on the politics of future governments.
  Employing EU nationals
  In the short term, EU nationals from outside the UK can still continue to work in the UK. This right of free movement of people remains until the end of the formal withdrawal process.
  In the longer term the situation is unclear. EU nationals who have exercised the right to work in the UK before the UK’s withdrawal may point to a precedent in international law. This is the principle of acquired rights; having exercised rights under an EU treaty, an individual may continue to benefit from those rights even after the treaty has ended. This potential protection for the existing workforce could encourage an increase in immigration from the EU before the UK leaves the EU.
  After the UK’s withdrawal, the terms of any future trade agreements will determine whether the right of free movement will exist at all or if it will be restricted. Non-EU countries, such as Norway and Switzerland, have to allow free movement of EU nationals in order to access the single market. However, countries such as Chile are not required to honour free movement under their trade agreements with the EU.

My Comment : this is interesting stuff,   the message is, I guess,  "stay calm, and carry on!"   nothing is going to happen for two years anyway,   and my personal belief is,  it will work out.    It just will.
       My thanks to Mark Rothman for this article check out his link for more pieces.