ABG Employment Newsletter – September 2015

TUPE:  Continuity of employment: identifying the time of a transfer

A teacher was employed to work in a Council service on a succession of fixed-term contracts each of which lasted for the academic year (1 September to 31 July). Between contracts, continuity of employment was preserved on account of a temporary cessation of work by section 212(3)(b) of the Employment Rights Act 1996. The Council transferred the service to a new provider. The teacher’s last fixed-term contract with the Council ended on 31 July 2013. The transfer took place on 1 September 2013 and the teacher worked for the new provider thereafter. An employment judge held that the teacher had sufficient continuous service to bring an unfair dismissal claim against the new provider.

The EAT held that the employment judge had been entitled to find that, for the purposes of calculating continuous service under section 218(2) of ERA 1996, the teacher had been employed by the Council at the time of the transfer on the basis that under TUPE the time of transfer is a nebulous concept which potentially stretches back some months before the transfer actually takes place.

TUPE:  Employee on long-term sick leave not ‘assigned’ for TUPE purposes

In BT Managed Services Ltd v Edwards and anor, the EAT has held that an employee on long-term sick leave who was not expected to ever return to work was not ‘assigned’ to an organised grouping of employees that transferred under the TUPE Regulations 2006. Given that such a grouping is defined, for TUPE purposes, by reference to performance of a particular economic activity, persons who are permanently unable to contribute to that activity are almost by definition excluded from ‘assignment’ to the grouping.

In the EAT HHJ Serota QC’s view was that the case law makes clear that while a link between the employee and the work carried out is sufficient in itself to constitute an assignment to a relevant organised grouping, something more than a mere administrative or historical connection is required. There must be some level of participation or, in the case of temporary absence, an expectation of future participation in carrying out the relevant activities of the group. Given that the identity of an organised grouping is partly defined by the work it carries out, a person who plays no part in the performance of that work cannot be a member of the group and thus is not ‘assigned’ to the grouping. HHJ Serota QC rejected the suggestion that the universal criterion in such cases is to determine whether the employee could have been required to work in the grouping if able to do so. This criterion is useful in cases where an employee is able to return to work at the time of the service provision change or is likely to be able to do so in the foreseeable future, but has no relevance where the employee is permanently unable to contribute to the economic activity carried out by the grouping.

Detriment spanning series of discrete fixed-term contracts could be a “series of similar acts”

The EAT has held that a tribunal erred in ruling that a number of alleged acts of detriment did not form part of “a series of similar acts” under the regulations protecting fixed-term employees and part-time workers from less favourable treatment, as they had occurred over a series of discrete contracts, and so were largely out of time. The claims related to a nine-year period, during which the claimant, a university teacher, had been engaged on a new fixed-term contract in each semester, with gaps between semesters when he was not engaged at all. The EAT held that the lack of contractual continuity did not preclude a finding that the application of the same working arrangements across the separate contracts amounted to a series of similar acts. The tribunal’s decision had been based on a misinterpretation of the relevant case law.

Dismissal:  Fair dismissal for derogatory comments against employer on Facebook

The EAT has held that it was fair to dismiss an employee who made derogatory comments about his employer on Facebook. It did not matter that the misconduct had taken place two years before dismissal or that the employer had been aware of the misconduct throughout that period.  Each case is fact specific and proper process must be followed.

Disciplinary:  Refusal to allow employee’s choice of companion in disciplinary investigation was breach of implied term of trust and confidence

The High Court has held that a university’s refusal to allow a representative of a professional defence organisation to accompany an employee at an investigation meeting concerning serious allegations of misconduct, was unfair and a breach of the implied term of trust and confidence.

Although the express terms of the relevant contractual disciplinary procedure allowed a trade union representative or a staff member to attend as a companion (as set out in section 10 of the Employment Relations Act 1999), the court held that these terms were modified by the overriding obligation of trust and confidence. The claimant was subject to two contracts of employment, in an academic role with the university and in a clinical role with the NHS Foundation Trust. The alleged misconduct related to the conduct of clinical trials which was governed by both contracts. An important consideration for the court was the fact that the claimant would have been allowed his choice of companion under the Trust’s disciplinary procedure, had it initiated disciplinary proceedings rather than the university. However, the claimant had no control over which organisation chose to take the lead in the proceedings and strict adherence to the university’s disciplinary procedure would have denied the claimant the opportunity to be accompanied at all.

Data Protection:  High Court refuses to order subject access compliance where searches not reasonable or proportionate

The High Court has refused an application to make an order for compliance with subject access requests which was sought under section 7(9) of the Data Protection Act 1998 (DPA). On the facts and under the disproportionate effort exemption in section 8(2) of the DPA, it was not reasonable or proportionate for the solicitors’ firm, to whom the requests were made, to carry out lengthy and costly searches of files dating back at least 30 years to determine whether or not information requested was protected by legal professional privilege, in order to comply.

Acas publishes new guides on equality and diversity in the workplace

Acas has published three new guides which aim to help employers identify, tackle and prevent discrimination in the workplace. Each of the three guides has a different focus:

  • Prevent discrimination: Support equality is a practical guide on how to prevent discrimination and promote equality in the workplace. It addresses matters such as recruitment and promotion policies and gives advice on day to day workplace issues, such as dress codes and religious practices.

Acas has indicated that in the last 12 months, it has dealt with over 50,000 calls to its helpline on discrimination and diversity issues in the workplace, which amounts to 5.5% of all calls.

Agency workers:  EAT considers the scope of the right to be informed of vacancies

The EAT has upheld a tribunal’s decision that the scope of regulation 13, Agency Workers Regulations 2010 is limited to providing agency workers with a right to be informed of vacancies within the end user company. It rejected arguments that agency workers were entitled to be afforded equal status with comparable permanent employees in being considered for a vacancy.

In dismissing the appeal, the EAT declined to make a reference to the European Court of Justice regarding the interpretation of the Temporary Workers Directive. The EAT held that there was no basis for anything other than a straightforward reading of the legislation.

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