Ruth Bonino

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A service provision change does not occur under TUPE where there is a change in the client on whose behalf the services are being carried out. This is the conclusion of the Employment Appeal Tribunal (EAT) in the case of Hunter v McCarrick, the first EAT decision to rule on this issue. The decision does not come as a great surprise but it provides welcome clarification on a point which occasionally arises in outsourcing situations.

What happened in this case

The Claimant (Mr McCarrick) brought an unfair dismissal claim against the Respondent (Mr Hunter) when he was dismissed on 8 March 2010 after having allegedly been employed by Mr Hunter for 7 months since August 2009. Since 2005, Mr McCarrick’s job was to manage a property portfolio owned by Waterbridge Group (WG)(of which Mr Hunter was Managing Director). In order to succeed in his claim against Mr Hunter, Mr McCarrick needed to show that he had at least one year’s continuous employment and that his employment had transferred to Mr Hunter under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) from his previous employers.Continue Reading UK TUPE: No service provision change where client changes identity

The Government has today announced what it describes as “the most radical reform to the employment law system for decades”. In a speech to EEF, the UK manufacturers’ organisation, Vince Cable outlined the results of the Government’s recent consultation on Resolving Workplace Disputes and the recent Red Tape Challenge Review of employment law.

The proposals…

This post was also written by Danny Bloom. 

In Enterprise Managed Services Ltd v Dance and Others, a case concerning a TUPE transfer, the Employment Appeal Tribunal (EAT) held that a decision to ‘harmonise’ the incoming employees’ terms with existing employees could have been legitimately made to improve productivity, so that subsequent dismissals based upon the ‘harmonised’ terms may not have been for a reason connected with a transfer, and would therefore not be automatically unfair under TUPE. Although this case should be viewed with caution, it gives transferees some hope that where the reason for post-transfer harmonisation of terms and conditions takes place for a business decision such as to improve productivity, rather than for administrative tidiness, such changes may be lawful.

Regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides that any dismissal of an employee either before or after a relevant transfer will be automatically unfair where the sole or principal reason for the dismissal is either; (i) the transfer itself; or (ii) a reason connected with the transfer, that is not an economic, technical or organisational (‘ETO’) reason. Whether a dismissal is connected with the transfer is a question of fact and will be for the employer to prove that there is no causal link between the two events.Continue Reading UK: TUPE and post-transfer harmonisation of terms to improve productivity not connected to transfer

UK: The Employment Appeal Tribunal (EAT) has provided important clarification on the annual leave entitlement under the Working Time Regulations 1998 (WTR) of workers (including employees) who are off work on long-term sick leave.

In the case of Fraser v Southwest London St George’s Mental Health Trust, the EAT has decided that:

  • a worker on long-term sick leave must request annual leave in line with the requirements of the WTR in order to be entitled to be paid for it;
  • a worker is entitled to be paid in lieu of accrued but untaken holiday when employment terminates, but only in respect of leave accrued during the leave year in which employment terminates. Accrued but untaken annual leave from previous leave years does not carry forward for the purposes of the payment in lieu entitlement where no request to take such leave was made by the worker; and
  • there is no duty on the employer to make a worker aware that the WTR rules operate in this way.

The decision provides welcome clarification to employers facing holiday-pay claims from workers on long-term sick leave on how to calculate annual leave. It is now clear that such workers are not entitled to be paid unless they requested annual leave during the relevant leave year. The EAT commented that it may seem artificial for an employee who is not at work to have to give notice in this way, but in the EAT’s view that “merely reflects the artificiality of a period of long term sickness counting as holiday at all”.Continue Reading UK: Workers required to request holiday whilst on sick leave in order to qualify for holiday pay

In a speech this afternoon to the Conservative Party Conference, George Osborne Chancellor of the Exchequer has confirmed that the qualifying period for standard unfair dismissal claims is to be increased from one year to two from 6 April 2012. This statement does not come as a great surprise since the issue was the subject…

In this alert we outline the main changes in UK employment law this October. The most notable piece of legislation coming into force this October is the Agency Workers Regulations 2010, but there are quite a few possible changes afoot. These include a forthcoming increase to the qualifying period for employees to bring unfair dismissal claims from one year to two years, as well as introducing fees for lodging employment tribunal claims.

Agency Workers Regulations

On 1 October 2011, the Agency Workers Regulations 2010 will come into effect. These controversial new regulations (the Regulations) will have a dramatic impact on the relationship between agency workers, agencies and hirers. They will provide increased protection to agency workers, giving them from day one equal access to facilities and amenities at work and the right to receive information about new positions within the hirer. Most importantly, after working for a qualifying period of twelve weeks, agency workers also have the same right to basic working and employment conditions as those enjoyed by workers recruited directly by the hirer. Both the hirer and the recruitment agency may be liable for breach, depending on the type of claim.

What you should be doing:

  • make an assessment of the skills required for roles carried out by your agency workers and your employees to assess whether the agency workers have an appropriate comparator for the purposes of the Regulations;
  • carry out an audit of your agency workers, paying particular attention to their basic terms of employment, and comparing them to the terms of “comparable” employees;
  • provide to agencies appropriate information of comparable workers (including standard terms of employment, pay scales and holiday entitlements);
  • put in place HR systems to accurately calculate the qualifying period for each agency worker;
  • consider mechanisms to mitigate the impact of the Regulations and take advice as necessary.

For more information concerning the basic rights of hirers and agency workers, please see our client alert.Continue Reading What’s coming up in UK employment law this October?

This post was written by William Sutton and Marc Bergen.

The new pensions auto-enrolment duties will begin to apply to employers from October 2012 through to September 2016 (depending on the number of people employed). Although some of the detail around the new regime is yet to be finalised, many employers are beginning to…

In the recent case of Compass Group plc v Ayodele, the UK Employment Appeal Tribunal (“EAT”) has ruled that an employer must give genuine consideration, in good faith, to an employee’s request to work beyond retirement under the Employment Equality (Age) Regulations 2006 (the “Age Regulations”). A blanket refusal to grant any such request without giving any consideration to the employee’s representations in circumstances where the decision is pre-determined (e.g. by a company policy), will result in the dismissal for retirement being unfair.

This case will be of interest to those employers who have already served notice of retirement on employees on or before 5 April 2011 which, because of the forthcoming abolition of the default retirement age of 65 on 1 October 2011, is the last date on which employers could serve valid retirement notices under the Age Regulations.Continue Reading Employer’s duty to consider request to work beyond retirement

In the recent case of Bailey v R & R Plant (Peterborough) Limited, the UK Employment Appeal Tribunal (EAT) considered the procedural requirements for a valid retirement notice under the Employment Equality (Age) Regulations 2006 (“Age Regulations”). The case is important since the last date on which such notices could be served was 5…

This post was written by Lee Howard.

A recent Employment Appeal Tribunal decision, Cherfi v G4S Security Services Ltd [2011], deals with indirect religious discrimination and offers employers further guidance on how they might deal the issue of time off work for reasons concerning religion. It may also aid those seeking to justify ostensibly discriminatory practices on the grounds of cost.

What happened in this case?

The employer, G4S, was bound under the terms of one of its client contracts to provide a prescribed number of security guards on site at all times during operational hours. The employee, Mr Cherfi, was a Muslim who frequently left the client’s site on Friday lunchtimes to attend prayers at a Mosque. G4S informed Mr Cherfi in 2008 that he would no longer be able to leave the site at lunchtimes, as G4S would be in breach of its contract if the requisite number of guards were not present at the client’s site.

G4S made a number of efforts to accommodate Mr Cherfi, offering him an amended work pattern of Monday to Thursday, with the option of working Saturday or Sunday so that he would not suffer financially. However, Mr Cherfi did not wish to work at weekends, and discussions did not result in agreement.

Thereafter, Mr Cherfi ensured that he was not present at work on Fridays, by either taking sick leave, annual leave or authorised unpaid leave. When G4S expressed discontent with this situation, he brought a claim for indirect discrimination, arguing that Muslims were put at a particular disadvantage by the employer’s requirement for all security guards to remain on site on Friday lunchtimes.Continue Reading UK EAT comments on cost-plus approach in religious discrimination decision