yet another TUPE update

To add to the panoply of TUPE cases, we have four useful decisions this month which illustrate the impact of the Regulations. Three out of the four, Enterprise, Pannu and Hunter, all deal with the scope of the rules applying TUPE to service provision changes (SPCs), which, as all our regular readers know, are not a matter of European law, but our very own wonderful invention. The cases consider situations where there is a change in the nature of the activity, the situation where the same services are provided but for a different client, and what amounts to a provision of a service, rather than the supply of goods.

In Enterprise Management Services Ltd v Connect-Up Ltd, the Employment Appeal Tribunal considered the break-up of a contract for the provision of IT support services to Leeds schools. Enterprise provided the services as a preferred supplier, under a contract which left schools free to go elsewhere if they so wished – which some did, to two other providers. At the end of the contract suppliers were invited to tender for a new contract which excluded about 15% of the work covered by the previous arrangement. Those tendering included Connect-Up, who were already providing IT support to some schools. The new contract also allowed schools to choose from a number of suppliers, and over half opted for Connect-Up. Employees dismissed by Enterprise when they lost the contract were found not to have transferred to Connect-up as the major provider of IT services after the new contract came into force for two reasons:


discrimination the ground of marital status and a judicial mention for Downton Abbey

The Equality Act 2010, like its predecessors, protects those with the protected characteristic of marriage from discrimination on the ground of that characteristic. Does this concept, originally introduced to deal with the outmoded practice of dismissing women as soon as they married, which still continued into the 1960s, have any current relevance in the 21st century?

Dunn v The Institute of Cemetery and Crematorium Management shows that it still has a place in modern employment law. In this case, the Employment Appeal Tribunal (EAT) looked at a situation where the discrimination did not take place simply because the claimant was married, but because she was married to a particular individual. Mrs Dunn was unfairly constructively dismissed, and alleged that the reason for this was that she was married specifically to her husband: Mr Dunn was also employed by the same employer, and in dispute with it over his other business interests. There was no evidence that the unfavourable treatment was because of her marital status alone, so the claim could only succeed on this ground if discrimination on the grounds of marital status extends to cover the situation of being married to a particular person.


offshore workers can be required to take annual leave while onshore

Offshore workers in the oil and gas industries generally work on a ”two weeks on, two weeks off” shift basis.

In Russell & Ors v Transocean International Resources Ltd & Ors (Scotland), offshore workers, whose contracts required that they take their leave during periods when they were ashore, unsuccessfully sought to establish that they were entitled to take their statutory annual leave under the Working Time Regulations 1998 (WTR) at times when they would otherwise be offshore.

The competing representations were succinctly summarised by Lord Hope as follows:


like one of the family…

Domestic workers living as part of the family for whom they work can fall under the “au pairs and nannies” exception to the right to be paid minimum wage. Other exceptions listed in the Regulations include members of the armed forces, share fishermen, prisoners and, fairly obviously, volunteers and the self-employed. Of course, interns or trainees are not excepted and this has generated a good deal of recent media interest. The au pair exception – and how to determine whether a person falls within it, was recently examined by the Employment Appeal Tribunal (EAT) in Jose v Julio (and other linked cases).

The National Minimum Wage Regulations 1999 provide particular guidance as follows:


increases in tribunal limits

We reported last month the increases in limits for unfair dismissal compensation and calculation of a week’s pay for redundancy and other purposes. The full changes have now been published and are as follows:  – Maximum compensatory award for unfair dismissal: £72,300 (no maximum in discrimination cases)  – Maximum unfair dismissal basic award/redundancy payment: £12,900…


administrations, TUPE and redundancies

It is an unfortunate fact of modern life that it seems that new administrations for high street retailers and other businesses seem to be announced almost every working day. A key concern in the context of employment law and, more importantly, for the employees concerned, is whether their employment automatically transfers to the new employer under TUPE or whether the new employer can "cherry pick" or perhaps even select none of the existing employees for the new business.
There has been conflicting case law in the last few years but it seems that we now have a clear statement from the Court of Appeal.


award of nearly 1m pounds for race discrimination and unfair dismissal

A former NHS worker, Elliot Browne, has been awarded £933,115 in compensation for race discrimination and unfair dismissal.
Mr Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. An employment tribunal sitting in Manchester found that Mr Browne had been subjected to discriminatory treatment in the final year of his employment with the Trust. He had spent 34 years working for the NHS and was the first and only black man to hold the position of divisional director for clinical scientific services with the Manchester Trust.
In 2007 his manager raised concerns about overspending in the department and Mr Browne’s perceived lack of "personal leadership". He subsequently raised what the tribunal found to be a "well-founded" grievance about race discrimination, claiming that he had been unfairly singled out for disciplinary action and criticism by comparison with white work colleagues.
Mr Browne maintained that the result was that members of staff "closed ranks" and began disciplinary proceedings which may have led to dismissal. He was signed off work with stress and in May 2008 he was suspended and dismissed.


new pay rates, tribunal award limits and postponed pension provisions

New statutory pay rates
From 1 April the standard rate of statutory maternity, paternity and adoption pay increases from £128.73 to £135.45 per week.
From 6 April the standard rate of statutory sick pay increases from £81.60 to £85.85 per week. It is also expected that the basic state pension will increase from £102.15 to £107.45 in April.

Increases in maximum tribunal awards and "a week’s pay"
The maximum unfair dismissal award is to increase from £68,400 to £72,300


dismissal fair even though conduct not "reprehensible"

The decision of the Employment Appeal Tribunal in RBS v Donaghay has clarified a question which may not be obvious at the inception of disciplinary proceedings but often emerges in the course of the process: if an employee is to be dismissed for misconduct, does that conduct need to be what would be generally regarded as "reprehensible"? There is also a chain of case law which makes the question relevant in such circumstances.

According to the Oxford English Dictionary "reprehensible" means "deserving censure or condemnation".

As an aside, the summary of the judgment posted on the Employment Appeals Tribunal website includes the word "esto" which is an obscure Scottish legal term (the employment tribunal was in Glasgow) and means "a technical term used in written pleadings used to introduce a secondary line of defence which accepts, only for the sake of argument, facts which are still disputed in the primary defence".

After a little diversion to deal with semantics, Mr Donaghay was a customer services adviser who was in a relationship and lived with another RBS employee, known in the proceedings as "LC". The facts of the case are set out in the decision:

"On Saturday 3 January 2009, the Claimant went out drinking with friends whilst LC remained in the flat. He returned late in the evening or in the early hours of 4 January. An argument took place between the Claimant and LC which culminated in him admittedly pushing her so as to cause her to fall onto the sofa. He then left but, having done so, tried to get back into the flat and caused a disturbance by shouting, swearing and kicking the front door so as to force his way back into the flat.


should a tribunal allow adjournments because a claimant is unwell?

Although not dealing with any new principles of law, the decision of the Employment Appeal Tribunal in the case of O’Cathail v Transport for London provides useful guidance about how tribunals should approach requests for adjournments from claimants on the ground of ill health.

It is well known to those who appear regularly at tribunal hearings (and other court hearings for that matter) that witnesses, including claimants, can find giving evidence and being subjected to cross examination a daunting ordeal. There is therefore often suspicion that those who say they are too unwell to attend the hearing are sometimes simply trying to avoid the hearing. Of course, as in all other walks of life, genuine illnesses can affect everyone and it’s often easy to identify that the person concerned clearly cannot attend the hearing.

However, particularly in tribunals where costs are generally not recoverable, the costs incurred as the result of an adjournment can be considerable (possibly including substantial barristers’, solicitors’ and expert witnesses’ costs) and a cynic might take the view that a late adjournment might even promote an offer in settlement of a claim in order to avoid further costs resulting from the adjournment.