decisions, decisions

Redundancy selection can be a tricky business; faced with having to choose between a number of employees how do you make sure you do so fairly? Well, the standard advice is to establish a set of objective criteria and apply those. And very good advice it is too, but Mental Health Care (UK) Ltd v Biluan & Anor shows that it is possible to go too far in the quest for objectivity.
In this case, 19 redundancies were needed when a ward in a residential home was closed. There were 58 staff in the pool for redundancy selection – the entire staff, in fact. Three criteria were used – disciplinary record, absence record and a competency assessment. The latter was based on a recruitment process involving a written test, an interview and an assessed group discussion. Selection was carried out by a team of HR specialists and healthcare professionals who did not work in the home and had no personal knowledge of the staff at all.
When the result of the selection came out it surprised some, because a number of workers who were known to be good performers were amongst those had not done well. But those who scored lowest were selected, all the same, because the process was felt to be fair and transparent.
The Employment Appeal Tribunal held that the Employment Tribunal had been reasonable in its approach to the matter when concluding that the dismissals were unfair, and had not substituted its own view for that of the employer.

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if employment regulation is a problem why are we getting more?

The government has published “Employment Law 2013: progress on reform” which notes both that in the UK, “burdens from employment law are low by international standards”, and that there is a perception that employment regulation is a problem (perhaps fuelled by exercises such as the “Red Tape challenge“?), leading to a situation where “fear of getting it wrong still undermines business confidence”. To help to counter this fear (perhaps greater than it needs to be since many employers appear to be under the impression that the ill-fated compulsory dismissal procedures are still in force) ACAS is to develop an online interactive tool for use to help with disciplinary issues.
The first change came into force from 6 April, when the period for collective redundancy consultation was cut from 90 days to 45 days. This is only relevant when 100 or more employees are subject to te same redundancy exercise. For 20 to 99 employees the consultation period remains unchanged (30 days). For fewer than 20 employees the consultation period must be reasonable but no minimum period is specified.
Looking further ahead this year:

– New settlement agreement arrangements including a new statutory code of practice will come into force at some as yet unspecified point during summer 2013
– Tribunal reforms have put been back to "summer" from spring 2013. These include new powers to strike out weak cases sooner rather than later, simplifying the procedure needed to withdraw claims and combining prehearing reviews and case management discussions. Fees will be introduced in employment tribunals at the same time, along with the reduced cap on unfair dismissal awards;
– In the autumn (note the trend for nothing more specific than a season!) there are plans to reform TUPE, as I outlined last month. The introduction of the new “employee owner” status has been put back to autumn 2013 from spring (about which read more in my introduction to this month’s newsletter). The proposal has also been tweaked in the recent budget, in which it was announced that the first £2000 worth of shares will be exempt from income tax and national insurance. There is also a requirement for independent advice.

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post termination victimisation not covered by Equality Act 2010

Prior to the Equality Act 2010, it had been recognised for quite a while that acts of victimisation taking place after the end of the employment relationship were unlawful under the preceding legislation (See Rhys Harper v Relaxion Group PLC [2003] UKHL 33). This would cover, for example, refusing to give an employee a reference for discriminatory reasons. However, it seems that the Equality Act doesn’t clearly cover this situation – although it is certain that this is not intentional. Notwithstanding an earlier Employment Tribunal decision which interpreted the Act purposively, and Equality and Human Rights Commission guidance suggesting that post employment victimisation is covered, in Rowstock Ltd v Jessemey, the Employment Appeal Tribunal has made it plain that it would not be right to fill the gap in the legislation judicially, because:
The instant situation is one in which express provision has been made for the post-relationship landscape but subject to an equally express exception in the case of victimisation
Moreover, the section of the Equality Act in question applies not just to employment cases, but to other legal relationships (such as the provision of services and landlord and tenant matters).

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double jeopardy

In Christou(1) Ward(2) v London Borough of Haringey the Court of Appeal upheld what may seem the surprising decision that an employer could revisit an earlier disciplinary decision to give a written warning for misconduct and decide to dismiss the employee after all. It would not be wise, however, to treat this as any kind of general rule as it arose from highly unusual circumstances. The case related to the dismissals of a social worker and team leader working for Haringey who were responsible for the safeguarding of Baby P, who died as a result of neglect and mistreatment by his mother and two men. The social workers were disciplined after the death of the child and each given a written warning – the most serious sanction available under a simplified disciplinary procedure used by the Borough. This was not the only disciplinary procedure the Borough had available to it – there was also a full procedure, which no doubt would have taken longer, but which could lead to dismissal.

The case became notorious after the conviction of the mother and the two men and an inquiry into Haringey’s child protection arrangements was set up at the behest of the Secretary of State for Education at the time, which concluded that the Borough’s arrangements were inadequate. A new Director of Children’s Services was appointed who was prompted by the minister to look into the role of social workers in the whole sorry business. After a further investigation, it was considered that the original disciplinary procedure was “blatantly unsafe, unsound and inadequate“ and five further disciplinary charges were brought. After a new hearing, both were dismissed for gross misconduct.

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employee shareholder contracts – unwelcome, unworkable and unlikely to see the light of day

For some months I have been writing about the problems likely to be encountered in implementing the government’s proposed employee shareholder contracts, apparently a particular favourite of George Osborne. Just last month I referred to criticism from the Law Society and it now turns out that no sooner had Mr Osborne referred in the Budget to changes to facilitate the implementation of the new contractual arrangements than the whole plan was thrown out by the Lords the very next day and by a majority of 54. The contracts were initially due to be introduced on 1 April 2013 and recently put back to 1 September 2013 but it now remains to be seen whether the government will continue to push on with its plans – in the face of almost universal opposition from the full political and economic spectrum – or admit defeat. I am bound to observe that one might reasonably think that there are rather more important issues which should be occupying the government’s attention at the moment.
In the record of proceedings and along with delegating the planning functions of the Mayor of London, registration of town and village greens and development orders within the curtilage of a dwelling house (see my observations elsewhere concerning jumbled legislation) came the simple words “Clause 27 – Leave out Clause 27”, thereby at a stroke eliminating the proposals in their entirety.

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yet another TUPE round up!

The Advocate General has given his opinion in the case of Alemo-Herron & Ors v Parkwood Leisure Ltd supporting the proposition that employees transferred under TUPE can continue to benefit from “dynamic” collectively agreed terms and conditions post transfer.
Next, the DWP has launched a consultation on the amendment of the Transfer of Employment (Pension Protection) Regulations 2005 on the pension contributions a transferee must make following a business transfer. The current regulations say that ‘relevant contributions’ must be made and that the amount contributed must equal the employee’s contributions subject to a maximum of 6% of basic pay. The reason for the change is that the regulations do not make it clear that the pension scheme member is entitled to choose their own rate of contribution. The proposal is that members will be able to choose their own contribution, which the employer must match, up to the 6% cap. Transferees will also be able to satisfy their obligation to protect pension contributions by keeping up contributions equivalent to those made before the transfer.
I also reported, in brief, last month, the consultation on changes to TUPE 2006 to removed so-called “gold plating”. In a bit more detail, the proposals are

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new employment law popping up in the most unlikely locations

As the Enterprise and Regulatory Reform Bill wends its way through parliament, the government keeps adding miscellaneous bits and bobs to it. Perhaps most noteworthy are the proposals to implement regulation of the Press post-Leveson by inserting amendments which appear entirely out of context, primarily because that is precisely what they are!
New employment law is creeping in by a similar method. Two recent additions that enhance the rights of whistle-blowers and extend protection to employees dismissed on the ground of political opinion have appeared in the last few weeks
One set of amendments to the Bill have been prompted by the fallout from recent high profile issues within the NHS, and are aimed at strengthening protection for whistle-blowers. They will:
– introduce a provision whereby the detrimental acts of one co-worker towards a whistle-blower will be treated as being done by the employer, thus making the employer responsible (vicarious liability);
– add a requirement for protected whistleblowers to be “acting in the public interest”;
– remove the requirement for disclosures to be made in good faith (while at the same time providing power for tribunals to reduce compensation by up to 25% if they are not made in good faith); and
– provide a defence for an employer who is able to show that they took all reasonable steps to prevent the detrimental treatment of a co-workers to towards another who blew the whistle.
These changes have resulted primarily from the case of NHS Manchester v Fecitt. Three nurses who raised concerns about the qualifications of a colleague were subjected to victimisation

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unreasonable prior warnings can make a dismissal unfair

Where an employee is dismissed for misconduct and there was a live final warning on their disciplinary record which appears, on the evidence, to have been “manifestly inappropriate”, then a tribunal should not just look at whether the employer has taken a reasonable approach to the event triggering dismissal, it must also look back and consider whether the final warning was fairly given as well: so says the Employment Appeal Tribunal in Simmonds v Milford Club.
A steward at a private club (how many employment cases have featured stewards in private clubs!) was dismissed for disobeying an instruction to give all staff a bottle or bottles as a Christmas bonus; he gave them a cash gift instead. The sanction was settled on because he already had a current final warning, for letting his wife deposit takings at the bank instead of doing it himself.
The Employment Tribunal to which he took his case felt that the bonus issue alone would not justify dismissal, but that taking into account the earlier warning, it was fair to dismiss. With regard to that warning, they found as a fact that the steward had never been told not to allow anyone else to bank the takings, but thought he ought to have worked that out from his previous experience as a pub landlord.
The Employment Appeal Tribunal rejected this assumption. If an Employment Tribunal has reason to consider that a material previous disciplinary sanction may have been manifestly inappropriate, it should hear evidence and decide on the relevant facts whether the sanction applied was manifestly inappropriate.
The Honourable Mrs Justice Slade explained the correct approach in such circumstances as follows:

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better redundancy deals for older workers?

In Lockwood -v- Department of Work and Pensions and The Cabinet Office, the Employment Appeal Tribunal (EAT) has endorsed the legitimacy of a voluntary redundancy scheme which provided enhanced benefits for older employees.
The claimant applied for redundancy at the age of 26, having worked at the DWP since she was 18. She was entitled to a redundancy payment under the Civil Service Compensation Scheme of nearly £11,000. However, if she had been over 35, she would have been entitled to over £17,000 more. She made a claim of direct age discrimination, but failed in the Employment Tribunal.
The EAT upheld the decision. There were material differences between the two groups – older workers would find it more difficult to find new employment and would have heavier family financial commitments than younger workers. The EAT also agreed that the different payments were justified, in that the different levels of payment were a proportionate means of achieving the legitimate aim of providing workers with a financial cushion to tide them over until they find another job – which would be harder for older workers.
The decision provides important clarification concerning this difficult issue which has troubled many employers since age discrimination legislation was implemented in 2006. It is in line with calculations for redundancy payments and basic awards for unfair dismissal which take into account both an employee’s length of service and age. When the Regulations first came into force many employers took steps to remove all of their own procedures that might result in an employee suffering an advantage or disadvantage merely because of his or her age. However, now that we have a few years’ worth of decisions concerning how protection from age discrimination works in practice, it has become clear that Tribunals will readily find that making different provisions according to the ages of employees is permissible, as long as there is a credible rationale for the approach taken.

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flexible work requests and flexible parental leave

I’ve mentioned pending changes to flexible work requests and flexible parental leave over the last few months and it seems that the details are now finalised. Already implemented are the following:
– The right to request flexible work is extended to employed agency workers returning from maternity/paternity leave;
– Unpaid parental leave is increased to 18 weeks for each child.
The Children and Families Bill 2013, which recently has its second reading in the Commons, implements further changes to:
– Allow parents to share maternity leave (after the first 2 weeks’ compulsory leave) as parental leave, which will be paid, subject to the same qualification rules as for maternity and paternity pay. The Department for Business Innovation and Skills has launched a consultation on how the new right will be administered, looking at issues like whether the one year period will run from the beginning of maternity leave or the birth of the child, and how employees should give notice to end maternity leave and pay where they propose to share leave.

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