The newly fiddled-with TUPE came into force on 31 January. Last month’s bulletin covered some of the main changes which have now taken effect.
In all the debate about the changes, one really important aspect has been neglected – how “TUPE” is pronounced. This has been a subject of uncertainty since the regulations were introduced over thirty years ago. We have heard all sorts of innovative variations – “tyoop“, “tawp” and on one memorable occasion (presumably as a nod to the regulations’ European origins) “toupée“. Whilst the majority favour “chew-pee“, there is not an obvious phonetic basis for this.
Sadly, the amending legislation, the snappily-titled Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which the more excitable parts of the employment law community have taken to referring to as “CRATUPEAR”, does not provide for a name change for the TUPE Regulations themselves, or even a pronunciation guide. The confusion, therefore, looks set to continue…
Moran v Ideal Cleaning Services
Agency workers are not employees, but over the years the distinction between the two has blurred. Agency workers with at least 12 weeks’ service are entitled (under the Agency Worker Regulations 2010) to the same basic employment rights and working conditions as if they had been recruited directly.
However, the Employment Appeal Tribunal (EAT) has raised many employment lawyers’ eyebrows and decided that workers on “indefinite” or “permanent” assignments are not covered by the Agency Workers Regulations and are therefore not entitled to employee-equivalent rights. This is a significant shift in the general understanding of the law.
The case involved ten workers who were employed by Ideal Cleaning Services. From the very beginning they were put on assignment at a company called Celanese. These assignments were long-term (the Claimants worked there for between six and 25 years). Contracts were open-ended, they specified Celanese’s premises as the place of work, and employment was terminable on notice.
When the Claimants were made redundant they argued that they were entitled to better conditions, including higher rates of pay, as enjoyed by “proper” employees of Celanese. They did not succeed. The EAT held that the Regulations only apply to workers supplied by a “temporary” work agency. As the Claimants had worked for Celanese on a “permanent” basis, it held, the arrangement was not temporary, so they were not covered by the Regulations. These Claimants’ contracts could not be terminated by some condition expiring (for example, the end of a fixed-term or completion of a task) and so the legislation did not apply.
This is a very surprising result, as it seems to drive the proverbial coach and horses through the Agency Worker Regulations, since it suggests that they will not apply to any agency arrangement which is only terminable on notice (and not some other event). This would exclude many agency arrangements from the protections afforded by the Regulations. This case may be appealed, and does have the feel of one that will eventually be overturned, but in the meantime, many agency workers have lost some significant protections.
February brings with it the introduction of substantial penalties for employers who do not pay their workers the National Minimum Wage (NMW). The crackdown could see the worst offenders being fined £20,000, rather than the previous maximum of £5,000.
Employers also face being named and shamed. The Government says that it is working with HM Revenue and Customs to investigate and prosecute employers who have seriously flouted their NMW responsibilities.
All the more reason to ensure that your business is fully NMW-compliant.
East England Schools v Palmer
The information age is making it harder for employers to justify the restrictions they try to put on ex-employees. Take information about clients, for example. How can an employer claim to be protecting its business interests by preventing an ex-employee from using information which is now often freely available via social media?
Happily for employers, the High Court has confirmed that they do still sometimes deserve protection.
Ms Palmer worked for a recruitment consultancy in the education sector. Under her restrictive covenant, for six months after her employment ended she was not allowed to solicit or deal with the job candidates or client schools that she had dealt with in her last 12 months.
Was that enforceable? The facts seemed to suggest not. For example:
- that particular market is driven by candidates, rather than consultancies;
- the ultimate recruiters owe little loyalty to the consultant; and
- lots of the information about clients is publicly available anyway.
So was there actually anything for the employer to protect?
Yes, the Court held. It was fundamental to Ms Palmer’s role that she built relationships with recruiters and candidates. That relationship could distinguish this consultancy from its competitors. As well as that, she would also have been privy to important information that would not have been publicly available.
This case aptly illustrates that careful wording of restrictive covenants and properly tailoring them to your business is more crucial than ever.
Norbrook Laboratories v Shaw
“protected disclosures” can alert employers to the fact that they may be breaching, or could at some later time breach, their legal duties.
They are made by employees who are concerned about issues including health and safety and criminal activity. To be classed as protected, these disclosures must contain information rather than just allegations. Employees who are dismissed for having made protected disclosures (or ‘blown the whistle’) have the right to claim automatically unfair dismissal, with uncapped compensation and no qualifying period of service (compared to the normal two years for unfair dismissal). It is however not always obvious when a protected disclosure is being made.
Mr Shaw was the manager of a sales team. He was worried about the dangers of staff driving in snowy conditions and sent separate emails to a number of managers. In his three emails he:
- asked if there were relevant policies and if risk assessments had been carried out;
- asked for guidance on what to do, given that there was pressure on his team to be on the roads in dangerous conditions; and
- informed HR of the danger and pointed out the duty of care.
When Mr Shaw was later dismissed, he claimed that it was because he had made a protected disclosure. But had he?
The answer, it was held, was yes. Even though each individual email was by itself not a protected disclosure, collectively the emails were. In this case, it was relevant that one of the people who received an email would have been aware of one of the earlier emails. It was also relevant that Mr Shaw’s emails did not merely make allegations or give his option – they set out information (he was drawing his employer’s attention to a dangerous situation), and that was important to the decision about the status of his disclosure.
This is a most unhelpful case for employers as it makes it much harder to know that a protected disclosure has been made and to act accordingly to head of liability.
Naeem v Ministry of Justice
Claims for indirect discrimination hinge on comparisons between the treatment of one group of people as against others. But the correct comparator is not always obvious, as Mr Naeem found out.
He was a Muslim prison chaplain employed by the Ministry of Justice (MOJ) since 2004. His pay scale was based on length of service. Before 2002, the MOJ only employed Christian chaplains. Mr Naeem argued that that put him and other Muslim chaplains at a disadvantage because they could only progress through the pay scale from 2002. He brought a claim for indirect discrimination.
The Employment Appeal Tribunal (EAT) looked carefully at the pool for comparison. Should it have included the Christian chaplains who were employed before 2002? The EAT said not. Under the Equality Act 2010 there must be no material difference between a Claimant and the comparators except for the protected characteristic. So, given that there were no Muslim chaplains employed before 2002, the correct comparator would be a non-Muslim chaplain who started in 2004.
Mr Naeem had been treated in the same way as any chaplain who began work at the MOJ in 2004, and so there had been no indirect discrimination.
HR Director taken Hostage
If you think being a HR professional is tough in the UK, take a moment to think about our colleagues over the channel.
Earlier this month, hundreds of employees at a Goodyear factory in Amiens, northern France, took the HR Director and another employee hostage in protest at the imminent closure of the factory. This is not, apparently, uncommon in France where, until a few years ago, agreements made between management and workers were enforceable in courts even when the manager agreed under duress.
Fortunately, it all ended well. The two hostages were freed a few days later after police intervened.
So next time a disciplinary meeting becomes a little heated, remember it cold be much worse…….