Understanding TUPE Changes

This month, ACAS has kindly published guidance on how to handle TUPE transfers. This is nice news for those of us who feel ill every time somebody mentions this area of employment law.

Understanding Tupe
Understanding TUPE

TUPE is an acronym used to describe the Transfer of Undertakings (Protection of Employment) Regulations 2006 and related legislation. The law in this area protects employees’ rights when the business they work for transfers to a new employer.  The regulations apply to what are known as ‘relevant transfers’ which may occur in many situations. The two broad categories are business transfers and service provisions changes, with each having their own definitions within the legislation.The past decade has seen a rise in organisational restructuring, particularly the use of outsourcing, therefore employers must be aware of the law in this area. TUPE has impacts for the employer who is making the transfer (the old employer) and the employer who is taking on the transfer (the new employer). The new ACAS guidance can help you to understand the changes and how they affect your business.

On 31 January 2014 new regulations on TUPE, the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, came into effect and updated the 2006 regulations. Among other things, the new regulations change the definition of service provision, and the rules on terms and conditions changes.

A summary of the 2014 changes can be found at this link:

http://www.acas.org.uk/media/pdf/l/1/9908-2901767-TSO-ACAS-TUPE_is_changing-ACCESSIBLE.pdf

The ACAS guidance can be found here:

http://www.acas.org.uk/media/pdf/d/r/Handling-TUPE-Transfers-The-Acas-Guide.pdf

And finally, ACAS have a useful flowchart:

http://www.acas.org.uk/media/pdf/m/t/Table-of-4-key-stages-TUPE-process.pdf

Bear in mind that TUPE remains a complicated area of employment law and you may wish to seek legal advice to ensure that all of its requirements are met.

Cheryl Hogg 
Trainee Solicitor – Employment Law

Flexible Working – Are you ready for 30 June 2014?

What happens on 30 June 2014?

Until recently, anyone with children or caring responsibilities could request the right to flexible working with their employer.  However from 30 June 2014, this right will be extended to all UK employees provided that they have been with their employer for at least 26 weeks.

Flexible working will effectively be opened up to the entire UK workforce.

What do employers need to do when faced with a request for flexible working?

The procedure which requires to be adopted by employers is slightly less prescriptive than it was previously.  From 30 June, employers will require to deal with the flexible working requests within a reasonable manner.  Employers have a three month period within which requests must be determined starting from the date of receipt of the request.

Do employers require to grant these requests?

Employers will require to consider requests and can only reject such requests if they use one of the recognised statutory grounds.  These grounds include “the burden of additional costs”, “a detrimental effect on the employer’s ability to meet customer demand” and “an inability to re-organise work amongst existing staff” along with others.  If faced with a flexible working request, employers would benefit from taking advice from HR professionals or solicitors so as to avoid falling foul of the legislation.

What are the risks for employers? 

An employee can bring a claim to an employment tribunal as a result of an employer’s failure to deal with a request in a reasonable manner, a failure to notify the employee of the decision within the specified period, a failure to rely on one of the statutory grounds for refusal or if the employer bases its decision on incorrect facts or if it incorrectly treats the application as having been withdrawn by the employee.

What action can an employment tribunal take if faced with such a claim?

An employment tribunal can order the employer to re-consider the request or can award compensation which it considers just and equitable up to a maximum of eight weeks’ pay.  However if the employee claim is combined with a constructive dismissal or discrimination claim, the compensation which could be awarded by the tribunal could be substantially more than this.

Top tips for employers

  1. Train managers to recognise and handle flexible working requests – managers may not be aware that the right to request flexible working has been extended.
  2. Treat such requests consistently – it would be unlawful to look more favourably upon requests from working mothers than working fathers.
  3. If faced with a difficult decision, consider whether or not a trial period might be possible.
  4. Provide written reasons for any refusal and keep a paper trail of all requests and decisions.
Simon Allison 
Partner – Employment Law

Online Sellers Beware

Businesses selling their goods and services online will need to update their terms and conditions and operating practices to fall in line with the implementation of new European rules, which came into effect on 13 June 2014.

Under the directive, online buyers are now given an extended 14 calendar day cooling-off period (previously 7 working days) in which to claim a full refund. Shoppers are not required to give a reason when cancelling their order. This includes purchases made through online auctions, although only to items sold by professional sellers.

The cooling-off period also now applies to the supply of digital content including music, eBooks and videos. Within the cooling-off period, a buyer cannot be supplied their digital content unless they have given express permission to receive it. If a buyer does gives their consent, they must also acknowledge the fact that they will lose their right to claim a refund once the digital content has begun to download.

The directive also involves rules regarding additional credit card charges, which must be clearly set out from the start of the transaction, and the rate of charge of phone calls from customers. As a seller, you will not be able to charge any more than the going local rate for customer phone calls relating to complaints or post-purchase inquires. However, calls made by customers purchasing goods or services over the phone can still be charged at a higher rate.

Sellers will have to make it clear to the purchaser who is to bear the cost of delivery when returning goods. Purchasers have to be clearly informed if they are to bear such costs; otherwise the seller will pay for delivery by default.

When offering additional goods or services during an online purchase, sellers are now prohibited from using pre-ticked boxes which force the purchaser to manually untick boxes in order to remove the extra goods or services.

Businesses should ensure that they are being pro-active; if you have not already done so, make sure to follow the guidance above. If you are still unsure on how, or if, these changes will affect your business, we will be happy to advise you.

Ellis Walls
Trainee Solicitor – Corporate & Commercial 

Victory for Disabled Couple

A recent case brought under the Equality Act 2010 should stand as a warning for employers that staff should be trained on discrimination law.

discrimination

A disabled couple have won a discrimination case against G1 Group, a leisure company, after they were denied access to a nightclub in Glasgow.

The club’s management explained to the couple that they had no disabled facilities and could not accommodate the wheelchair users. The couple insisted they did not need such facilities. Robert Gale, who has cerebral palsy, crawled up the stairs to prove to management that he did not require assistance, however management called  the police, apparently due to the couple’s “disorderly and anti-social conduct”.

It was held at Glasgow Sheriff Court that G1 had unlawfully discriminated against the pair and they were awarded £2000 in compensation.

G1 Group blame this incident on a misunderstanding by staff in relation to wheelchair access at the club and have stated that the staff concerned have been provided with further training since the incident.

This case goes to show that there is a very real risk to employers when the staff members are not trained on equality legislation.

Cheryl Hogg 
Trainee Solicitor – Employment Law

Disability Discrimination – Reasonable Adjustments by Association?

Following the landmark case of Coleman v Attridge Law, UK law recognises that disability discrimination can include direct discrimination by association.  This is a concept which means that an employee does not have to be disabled in order to bring a claim.  The concept of associative discrimination provides protection from less favourable treatment for those who associate with disabled persons.  For example, in Coleman, Ms Coleman had a disabled child. She requested flexible working so that she could care for the disabled child.  Ms Coleman’s request was declined by the employer whereas mothers of non-disabled children had previously been granted flexible working.  The employer argued that this could not amount to disability discrimination because the employee was not herself disabled.  The EAT disagreed.

The law places an obligation on employers to make reasonable adjustments for disabled employees.  How does this duty to make reasonable adjustments sit with the concept of associative discrimination?  According to the Court of Appeal, the duty to make reasonable adjustments does not extend to require an employer to make reasonable adjustments for an employee who associates with a disabled person.

In Hainsworth v Ministry of Defence, the employee was stationed with the army in Germany.  She requested a transfer to the UK so that her daughter, who suffered from a disability, could access specialist facilities.  The request was denied and the employee claimed that this amounted to a failure to make reasonable adjustments.

The Court of Appeal noted that both the Equality Act and the Equal Treatment Directive applied only to reasonable adjustments for the assistance of disabled employees or prospective employees.  Ms Hainsworth’s claim accordingly failed in that the law could not be stretched to require reasonable adjustments for those who associate with disabled persons.

Jack Boyle
Senior Solicitor – Employment Law

Queen Announces Crack Down

The Queen gave a speech this week which kicked off the latest session of Parliament.  During the speech, her Majesty set out the Government’s proposed legislative plans for the year ahead.

A variety of the proposals are employment related, including a ‘crack down’ on abuse of national minimum wage (NMW) and zero hours contracts, as well as costly tribunal delays.

Briefing notes prepared by the Cabinet Office provide more detail on the proposals.  The Small Business, Enterprise and Employment Bill will include measures targeting:

  • abuse of NMW and zero hours contracts;
  • costly tribunal delays (the Governments precise intentions are yet to be detailed);
  • enhancing flexibility of childcare arrangements to meet the needs of working families; and
  • preventing highly paid public sector employees keeping redundancy payments when they return to the same public sector within a short space of time.

The Government also plans to reform apprenticeships by making them more responsive to the needs of employers.  The intention is to replace existing apprenticeship frameworks which are ‘long and complex’ with ‘short, simple standards describing the skills and knowledge that an individual needs to be fully competent in an occupation’.

The Government also plans to further support working families by offering the equivalent of basic tax relief on money spent on childcare, up to a maximum of £2,000 per child.  The Childcare Payments Bill is pencilled in for autumn 2015 and will be available to all families with children under the age of 12.

Jack Boyle
Senior Solicitor – Employment Law  

Between you and me: protected conversations

Employment Law
Employers may find themselves in a position where they wish to  propose a settlement agreement to offer certain things to an employee, such as a lump sum payment, in exchange for the employee agreeing to the termination of their employment. The worry with commencing negotiations is that an employee could then perhaps use details of such negotiations in a future employment tribunal to demonstrate that he or she was constructively dismissed. It is important for an employer to know that they can engage in such negotiations without having to worry that whatever they say could be used against them in the future.

There are two ways that can prevent such negotiations from being used in a tribunal. The first is to rely on the ‘without prejudice’ principle and the second is to rely on section 111A of the Employment Rights Act 1996.

Without Prejudice

What?

The effect of the ‘without prejudice’ principle is that, where there is a dispute between the parties, any written or oral communication between them which is comprised of genuine efforts to resolve their dispute will not generally be admitted in evidence at a subsequent hearing of the employee’s claim. This enables parties to negotiate fully and frankly without the risk that anything they say or write in the course of negotiations will be used against them in future tribunal proceedings if the negotiations fail.

How?

In order for settlement discussions and agreements to be protected under the ‘without prejudice’ principle, there must be an existing dispute between the parties and a genuine attempt to settle that dispute.  Both parties will also have to agree to enter into these “without prejudice” discussions and there must not be any unambiguous impropriety from either party.  Parties should take advice about this before engaging in such discussions.

Section 111A Employment Rights Act

What?

Section 111A of the Employment Rights Act 1996 provides for a particular type of negotiation to take place which can apply to more situations than the “without prejudice” scenario described above. This is because this type of negotiation does not require there to be an existing dispute between the parties. These provisions provide a similar protection to the ‘without prejudice’ principle but apply only to settlement offers and discussions that relate to unfair dismissal (including unfair constructive dismissal) claims brought to an employment tribunal.

How?

You should state before conducting any protected conversation that the discussions about to take place are confidential by virtue of the legislation and that they cannot be relied upon in any subsequent unfair dismissal case. You should discuss the proposals face to face at an agreed time and place. You should give reasons for the proposed settlement agreement at the outset, give the employee a reasonable period of time to consider the terms of the written settlement agreement proposal and allow the employee to receive independent legal advice. The ACAS Code of Practice suggests a minimum of 10 calendar days.

Any correspondence in relation to settlement discussions should be regarded as separate from correspondence relating to disciplinary or performance management procedures such as invitations to disciplinary meetings. Moreover, any discussions that may have taken place about the employee’s conduct or performance as part of the settlement agreement negotiations should not form part of these procedures.

Exceptions

The provisions of section 111A do not apply to automatically unfair dismissals, such as a dismissals for whistleblowing. The provisions of section 111A may also not apply in any type of unfair dismissal claim if there has been some improper behaviour in anything said or done in relation to the settlement negotiations. The test for “unambiguous impropriety” under the ‘without prejudice’ principle is narrower than the improper behaviour test under section 111A. Also, the protection does not operate where there is a claim for anything other than unfair dismissal.

In my view, the exceptions to the protected conversation rules are so wide that the employer should, where possible, use the tried and tested method of a ‘without prejudice’ conversation by seeking to get the employee to acknowledge a dispute before discussing departure terms.  This procedure could be used in conjunction with the section 111A procedure for added certainty.  In certain limited circumstances however the section 111A procedure can be adopted.  If using such a procedure, employers should take specialist advice before doing so.

Ultimately, it is crucial that employers follow a fair process before an employee is dismissed. Failure to do so will leave them vulnerable to potentially losing any subsequent unfair dismissal claim.

 
Cheryl Hogg
Trainee Solicitor – Employment Law