What did we get up to last month?
Katharine and I enjoyed hosting the third in our series of HR Breakfast Club workshops and it was great to catch up with existing clients and meet some new faces. The feedback on these workshops has been really positive and we would encourage you to try them out, if you have not already been. An invitation for the next workshop to be held on 3rd and 6th June will be sent out shortly so keep an eye out for it!
We have taken note of key dates which have now been confirmed as the implementation dates for various changes:
- ACAS early conciliation will be in operation from 6 April and mandatory from 6 May 2014. This is a significant change to the Employment Tribunal process and one which Katharine will explain in detail at our Annual Employment Conference in June (more on which below)
- Financial penalties for employers who lose at Tribunal will come into effect on 6 April 2014
- The right to request flexible working will be extended to all employees with effect from 30 June 2014. The process for dealing with requests is also being changed and, again, this will be covered in detail at our Employment Conference
We were also pleased to announce this month that Buckles has been awarded the Investors in the Environment Green Award, which is the highest achievable level within the scheme. This means that clients can be confident that they are working with a law firm which is doing all it can to limit its impact on the environment.
Any plans for this month?
Save the date! Our Annual Employment Conference will take place on 24 June and will feature a round-up of recent and forthcoming changes to employment law as well as presentations from guest speakers from GreenStones accountants and Origen Workplace Solutions. Further details, including booking information, will circulate soon.
Katharine will be presenting at the Cambridgeshire Chambers of Commerce Spring Collection on 26 March in Peterborough – sign up to the event here for a useful HR update.
Katharine and I are busy training for the Wildlife Trust 10k Business Challenge on 6 April. We're hoping to complete the run, along with two colleagues, in the shortest time possible. If you are taking part too, let us know and hopefully we'll see you there.
Any new cases to be aware of?
Some interesting cases to come out of the appeal courts in the past month:
- The Court of Appeal in Hazel v The Manchester College has upheld a decision that employees who were dismissed after failing to agree new terms and conditions following a TUPE transfer were automatically unfairly dismissed in breach of the TUPE regulations. Mrs Hazel, along with 1500 other employees, transferred under TUPE to the College when it took over a contract for the provision of educational services. Five months later, and as a result of economic difficulties, the College proposed to make 200 employees redundant and change the terms and conditions – including a significant pay decrease – of remaining staff. The College explained that if it didn't reduce its staffing costs by making these contractual changes, further redundancies would be inevitable. The College sought to argue that the dismissals were fair because they were for an economic, technical or organisational (ETO) reason entailing a change in the workforce. However, this argument was rejected by the Employment Tribunal, the Employment Appeals Tribunal and the Court of Appeal who concluded that the reason for Mrs Hazel's dismissal was her refusal to sign the new contract – the wider redundancies played no part in the decision. On this basis, although there was an ETO reason for the dismissal (that is to say the desire to cut costs) the reason did not entail a change in the workforce and therefore the dismissals were in breach of the TUPE regulations and automatically unfair.
- In Robert Bates Wrekin Landscapes Ltd v Knight, Mr Knight was dismissed without notice for having acted in breach of a customer's security requirements; he had inadvertently removed some of the customer's equipment from its premises and left it in his van overnight in breach of the relevant safety policy. Mr Knight's contract of employment gave RBWL Ltd the express right to terminate his employment without notice if he breached any customer's policy and RBWL decided to exercise this right. Mr Knight brought a claim for wrongful dismissal, arguing that RBWL had acted in breach of contract by failing to give him notice of termination of employment. He succeeded in his claim at both the Tribunal and the Employment Appeals Tribunal. This was on the basis that Mr Knight's actions had been inadvertent; he had simply forgotten that he had the equipment, rather than deliberately removing them from the site. As a consequence he could not reasonably be said to have been guilty of gross misconduct and on that basis RBWL could not rely on the express contractual clause entailing them to terminate without notice.
This case highlights the fact that dismissal without notice will only be permitted where an employee has committed an act of gross misconduct. Any contractual provision allowing termination without notice in specific circumstances may therefore only be safely relied upon where the employee's actions both fall within the scope of the contractual provision and represent an act of gross misconduct.
- In Kisoka v Rydevale Day Nursery, the EAT held that Miss Kisoka had been fairly dismissed even though the Nursery had refused to follow the decision of the independent panel that it had engaged to hear her appeal against dismissal. The appeal panel had concluded that the Nursery's decision to dismiss could not be supported and that the dismissal should be overturned. The Tribunal, in a decision supported by the EAT, found that the Nursery's original decision to dismiss had been one which is had reasonably been entitled to make and that it had carried out a reasonable investigation before reaching that decision. Furthermore, it had not ever been suggested that the independent panel's decision would be binding on the Nursery and there were sound reasons why the nursery had not implemented the decision. Furthermore, the employer was only a small organisation and it was not in fact under any obligation to engage an independent panel to hear the appeal to begin with.
We were initially surprised by the decision although it does make sense on the particular facts of this case. It is important though that employers do not take this decision as a green light to ignore successful appeals brought by dismissed employees since the relevant considerations in this case will not apply to all employers and all situations.
- In Vision Events (UK) Ltd v Paterson, the EAT has held that it was not an implied term in Mr Paterson's contract that he would be paid in lieu of extra hours worked under a flexi-hours scheme upon termination of his employment. The Tribunal had held that without an express clause providing that an employee would forfeit the accrued hours upon termination, an employer was obliged to pay the employee in respect of accrued hours.
However, the EAT took the opposite approach and overturned the Tribunal's decision. The EAT's view was that without an express clause entitling the employee to payment in lieu upon termination, the employer was under no obligation to pay this.
This is a harsh decision for employees and in particular Mr Paterson who, as a result of the judgment, had worked 1000 hours for Vision Events without payment.
