ABG Employment Law Newsletter – December 2015

Holiday entitlement of part-time worker had to be recalculated when hours increased

The European Court of Justice has ruled that when a worker increases their hours, any statutory annual leave that has already accrued does not need to be recalculated retrospectively to take account of the increased working hours. However, going forward, leave entitlement should be recalculated to reflect the new working pattern. Any leave taken in excess of the entitlement that applied under the previous working pattern should be deducted from the leave going forward.

The calculation of leave entitlement is the same, regardless of whether employment has terminated or is continuing.

New early conciliation not required before amending ET claim

The Employment Appeal Tribunal (EAT) has held that it is not necessary for a claimant to go through the early conciliation process (EC) again in respect of a new claim arising after EC has concluded and an ET1 presented to the tribunal. Parliament intentionally drafted the legislation to refer to “prospective claimants”, rather than existing claimants, having an obligation to commence EC in respect of “a matter”, not each “cause of action” or “claim”. Further, the only requirement is for a prospective claimant to provide details of the parties’ names and addresses to Acas; not details of the potential claims.

In the EAT’s view, it is appropriate for a claimant in this situation to apply to amend their ET1 to include the further claim. Whether to allow the application to amend will be a matter of judicial discretion in the usual way.

No TUPE transfer where transferor remains as employer

The Employment Appeal Tribunal (EAT) has overturned a tribunal decision that there had been a transfer under TUPE, in circumstances where the claimant’s employment had supposedly transferred from one employer to a group of companies on a joint and several basis, where one of that group of companies was the original employer. The claimant had objected to the new joint employment contract offered to him upon a restructure of the group, but continued to work in substantially the same way as he had before the purported transfer. The business unit he worked in was still operated by his original employer, albeit now as part of a group of companies. When he was later dismissed, and re-engaged on the joint employment contract, he brought a claim for unfair dismissal.

As a preliminary issue the tribunal had to decide whether or not there had been a relevant transfer under TUPE from the original employer to the group of companies, and held that there had been. The group appealed to the EAT on the basis that there cannot be a transfer under TUPE where there are multiple transferees, and in the alternative that a transfer was not possible where one of the transferees was also the transferor. The EAT held that TUPE did not preclude a transfer to multiple transferees, provided the economic unit retained its identity. However, there was no relevant transfer as there was no change to the identity of the employer. The claimant’s original employer retained liability for his employment, and so the legal position remained unchanged.

Disparate treatment of employees who were not in “truly parallel circumstances”

The Employment Appeal Tribunal (EAT) has revisited the guidance on when it is appropriate to consider disparity of treatment between employees in similar circumstances. In this case, two employees had been found guilty of gross misconduct for their involvement in the same incident, although one was dismissed and the other was not. The tribunal found that the difference in sanction was unreasonable and that the employer had applied a “defence of provocation” differently between the two employees. These differences rendered the dismissal unfair.

The EAT clarified that in such cases, the relevant question is still whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to the other. Disparity of treatment will occasionally be relevant to reasonableness, but the circumstances need to be “truly parallel”. With respect to provocation, the EAT said that there is no such “defence” and that provocation would only be a mitigating factor, to be weighed by the employer.

BIS prosecution of ex-City Link Directors for failing to notify redundancies fails

A case brought against three ex-directors of City Link, under section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992, who were alleged to have failed to give sufficient notice for redundancy plans, has failed.

Employers planning to dismiss 100 or more staff at one location must notify the Secretary of State 90 days in advance. Failing to do so carried a fine of up to £5,000 at the relevant time (it is now unlimited).

City Link was placed into administration on 24 December 2014, resulting in the loss of over 2000 jobs. BIS prosecutors alleged that the firm’s former managing director, finance director and a non-executive director became aware that redundancies were inevitable on 22 December 2014, but the Secretary of State was not notified until 26 December 2014 by the company administrator.

The judge ruled that no proposal was made on 22 December 2014 to make redundancies, and that the three defendants had every hope of saving City Link and its workforce by placing the company into administration. The three directors were consequently acquitted of the charge.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems or issues.

Christopher Gigg [email protected]  +44 (0)115 934 3310

Kathryn Meir [email protected] +44 (0)115 934 3308