Category Archives: Pan European Legal Services

Common Employment Myths

Perception v Reality

SUMMARY: Employers have a number of misconceptions about their rights in relation to employees. Read this if you want to know five common reasons employees may bring a claim against their employer when these misconceptions have been held.

Retirement

“I can retire someone when they reach 65”.

This is not the case. Retirement is no longer a fair reason for dismissal and an employer cannot force someone to retire unless it can be objectively justified (employers should seek legal advice if they think that a retirement may be objectively justified). If it cannot be justified, dismissal will be unfair and discriminatory on the grounds of age.

If an employee’s performance is not satisfactory, an employer should go through a performance management process in the normal way. If there are questions to be asked relating to workforce planning, consider incorporating discussions about an employee’s future plans, which would include retirement, into the appraisal system. However, only ask open questions about short, medium and long term goals and not direct questions about retirement. All employees irrespective of their age should be asked these questions.

All employees, irrespective of their age, should be treated consistently, otherwise there is a risk of age discrimination claims in an employment tribunal.

Probationary period

“I don’t need to give anyone an employment contract now, I’ll give it to them when they’ve done a trial”.

Employees should be issued with contracts when (or preferably before) they start employment. Employers should not wait until the “trial” period or any probationary period has expired. If certain key terms and conditions are not provided to them within two months of commencing employment, the employer could be liable to pay additional compensation to them if they bring a claim in an employment tribunal.

Employers should also be aware of the commercial risk. A retained employee could, at some point in the future, argue that they are not bound by the terms and conditions given to them after they have started. This could be an issue particularly if reliance on confidentiality provisions and post terminations restrictions is an important consideration for the employer.

Interviews and record keeping

“When I interview people, I just have a chat with them to see whether I like them or not. I don’t need to do anything more formal than that.”

An employer does not need to have an elaborate assessment regime set up to employ people. It is legitimate to have a short interview, but it is vital to have considered before-hand the skills, experience and personal attributes necessary for the job (which should have been done when creating the job description/person specification). Interview questions should focus on establishing whether the prospective employee meets the criteria for the job; similar questions should be asked of all candidates.

A record should be retained of the questions and candidates’ answers as well as the reason for selecting the successful candidate. Employers should be aware that unsuccessful candidates could make a data subject access request to obtain copies of these documents, particularly if they are unhappy with the decision. Managers when making their notes should be mindful not to incorporate opinions, which could cause embarrassment at a later date or could be used as evidence in an employment tribunal claim for discrimination.

Individuals do not have to be employed in order to bring a claim in an employment tribunal. A prospective employee who believes they have been discriminated against during the selection/recruitment process may bring a claim; any notes an employer has retained of the interview would be essential in the defence of such a claim.

Pregnancy

“She was pregnant at the interview and didn’t tell me. She’s not getting maternity leave – I’ll dismiss her.”

An employee has no obligation to tell a prospective employer that she is pregnant at the interview and the prospective employer should not ask this question because they would risk a sex/pregnancy/maternity discrimination claim. An employer cannot dismiss on these grounds as this would also be discriminatory. Compensation for discrimination in the employment tribunal is unlimited.

Employers should remember that all female employees, no matter how short a time they have been employed, are entitled to take maternity leave of up to 52 weeks and retain the right to return to a suitable job.

Outsourcing

We are going to outsource the cleaning to a cleaning company. We won’t need the cleaners we employ anymore so we will make them redundant.”

If an organisation has an outsourcing situation, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) may apply. This means that in some cases the organisation’s cleaners will automatically transfer on their current terms and conditions to the newly appointed cleaning company if this work is outsourced. If employees are dismissed because there will be an outsourcing, the employer could be in breach of TUPE and the employees could bring a claim for automatic unfair dismissal in the employment tribunal.

If an outsourcing is being considered, employers should seek early advice on whether TUPE may apply. If it does apply, an employer has information and consultation obligations to fulfil before the outsourcing takes place. Non-compliance could lead to an employer being ordered by a tribunal to pay up to 13 weeks’ gross pay per employee.

Contact details

If you would like advice on any of the issues raised in this article, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice. 

Employment Law Update Seminar – June 2014

Employment Law Changes 2014Employment Law Update 2014 – An Employer Focused Update

Date: Thursday 5th June 2014

Time: 8:00-10:00am              Cost: Free

Venue: FG Solicitors Offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

If you have managed to keep on top of the numerous employment law changes this year, you are either a genius or you have too much time on your hands.  For everyone else, you will benefit by attending our employer focused seminar on key employment law changes by showing how they would work in practical case-study examples.  The key changes we will cover include:

  • Flexible working – requests for all
  • Employment Tribunals – penalties, fees and mandatory Early Conciliation
  • TUPE – more flexibility
  • Illegal working  – increased penalties
  • Whistleblowing – public interest test
  • And much more…

To avoid disappointment reserve your place by completing the booking form below:

To book your place at our seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to seeing you at our next seminar.

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Draft TUPE Regulations Published

6568330_mSUMMARY: We consider the implications of the government’s response to the consultation on the proposed changes to TUPE and draft regulations.

Introduction

We look in this update in some detail at the service provision change (“SPC”) proposal and also consider the other intended changes set out in the government’s response on 5 September 2013 and the draft regulations which were published on 31 October 2013.  It is anticipated that the draft regulations will come into effect in January 2014.

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The TUPE Regulations

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) safeguard employees’ rights when the business (or part of the business) for which they work transfers to a new employer.

A transfer can take place where either there is a business transfer or where there is a SPC.

A SPC is where a client engages a contractor to do work on its behalf (outsourcing), engages a different contractor to do that work in place of the first contractor (retendering), or brings the work “in-house” (insourcing).  This can for example occur when businesses contract out services such as cleaning or IT support to specialist providers.

There were concerns expressed that the SPC provision went further than was necessary under European law, imposing on businesses unnecessary legal obligations.  One of the initial key proposals was therefore to remove the SPC section from the legislation.

In response to the government’s proposal to remove the SPC proposal, some were concerned that businesses would have entered into contracts on the understanding that TUPE would apply when the contract came to an end; if it did not (because of the removal of the SPC provision), there would be associated unexpected redundancy costs.

The Government’s Response

SPC

The government has now decided that in the main it will not adopt its proposal and will leave a SPC as a type of transfer where employees’ rights must be protected.

The government has taken into account the certainty that the TUPE provision relating to SPCs brings; if this provision did not exist then some cases of insourcing, outsourcing or retendering would fall within the business transfer definition anyway, but other cases would not.  Those responding to the consultation felt this would lead to a greater number of disputes due to the uncertainty of whether TUPE applies or not.

However, the government has stated its intention to amend the legislation to clarify that the activities carried on after the change (or transfer) must be “fundamentally or essentially the same” as those carried on before it for TUPE to apply.  It is questionable whether this will actually change the law at all, given that this seems to reflect current case law in any event.

Other intended changes

Other changes that the government intends to make in relation to TUPE include the following:

  • The requirement to provide employee liability information will be retained, but the information will have to be given 28 days before the transfer, rather than the current 14 days.
  • There will be a static approach to the transfer of terms derived from collective agreements and transferees will be able to change terms derived from collective agreements one year after the transfer, provided that the overall change is no less favourable to the employee.
  • Changes in the location of the workforce following a transfer will be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason), thereby preventing genuine place of work redundancies from being automatically unfair.  At the moment permitted changes are limited to a reduction in head count or change in job function.
  • Regulation 4 (restriction on changes to terms) and regulation 7 (protection against dismissal) will more closely reflect the wording of European legislation and case law.  This is intended to weaken employees’ rights in relation to TUPE.
  • The Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) will be amended to clarify that consultation which begins before the transfer can count for the purposes of complying with the collective redundancy rules, provided that the transferor and transferee can agree and the transferee has carried out meaningful consultation.  By way of a reminder, there are different collective consultation regimes for business transfers and SPCs under TUPE and collective redundancies.
  • Micro-businesses (i.e. businesses with fewer than 10 staff) will be allowed to inform and consult affected employees directly when there is no recognised independent union, nor any existing appropriate representatives.
  • The existing government guidance on TUPE will be improved.

Hazel Robbins, Solicitor

Contact Details

For more details about TUPE please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Claimants can continue claims against other respondents even after signing COT3 with one respondent – holds the EAT.

SUMMARY: The Employment Appeal Tribunal has held that a claimant can continue claims against other respondents even when it has signed a COT3 with one respondent.

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TUPE-related Harmonisation of Conditions Unfair Dismissal and Re-engagement Order

The Employment Appeal Tribunal (“EAT”) recently made findings in relation to TUPE-related dismissals and the remedy of re-engagement in Manchester College v Hazel and another.  We consider each of these aspects separately, both of which are of importance to employers.

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FGazette July 2012

Welcome to the latest edition of FGazette! The quarterly newsletter of Floyd Graham & Co – Lawyers for today’s employers.

Our Summer edition focuses on social media in the workplace, changing terms and conditions and the future of TUPE. Click the FGazette image to read more.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@floydgraham.co.uk