What have we been up to this month?
We’ve been spending some time this month considering the latest employment law changes introduced on 1 October (more about these below) as well as reading up on the Government’s response to the consultation on its proposed changes to TUPE.
The Coalition has intended to end what it referred to as the “gold-plating” of TUPE by removing from it provisions which do not appear in the Acquired Rights Directive (ARD), the EU Directive which TUPE implements in the UK.
One of the main concerns that we and many others had was the proposed removal of the “service provision change” provisions which do not appear in the ARD and which stipulate (broadly) that TUPE will apply where there is an outsourcing of services, a change in service provider, or where services are brought back in-house. These provisions, whilst being commercially unpopular in many cases, have at least given much more certainty to employers about whether they would be affected by the TUPE regulations and the removal of them would result in a return to the much more cumbersome, complicated and uncertain tests established in European and domestic case law.
Happily, the Government appears to have listened to the responses it received during the consultation process and has confirmed that the regulations relating to service provision changes will remain in the legislation. They will be tweaked, however, with a specific requirement that the activities carried out pre-transfer and post-transfer must be fundamentally or essentially the same for TUPE to apply. In our view this is a good clarification which reflects recent EAT decisions and makes much more commercial sense.
All of the TUPE changes are due to come into effect in the New Year and we will provide further details of the full extent of the changes nearer the time.
Katharine and I completed the Moore Stephens’ Bob Foster Memorial Fun Run on 10 September which was in aid of the British Heart Foundation. I am pleased to say that I, along with my team mates James Coppinger (Construction) and Christian Jenkins (Private Client) were victorious and have the honour of being this year’s champions. Katharine’s team (featuring Jo Cotgrove (Family) and Ben McIlroy (Construction)) also completed the run in a decent time.
We were interested to see this Tweet from the Law Society with an article from 1913 which confirmed the view that women were not eligible to become solicitors because they did not fall within the definition of “a person” under the Solicitors Act. 100 years on and according to the Law Society 46.5% of today’s solicitors are women with the first, Carrie Morrison, being admitted in December 1922.
We have also been very pleased to be able to finally reveal our new branding. We think it looks great, and hope that you agree.
What are the October changes to the law?
- The provisions in the Equality Act 2010 which made employers expressly liable for the harassment of their employees by third parties have been repealed with effect from 1 October. Any employees who do suffer harassment by third parties during the course of their employment will only be able to rely on the normal harassment provisions of the Equality Act in general, which will be a harder claim to successfully bring
- On 7 October, a new single fee remission scheme for all Courts and Tribunals will be introduced. If you want more information about the criteria that will be used when assessing fee remission applications, let us know
- National Minimum Wage hourly rates have increased from 1 October:
Workers aged 21 and over – £6.31
Workers between the ages of 18-20 (inclusive) – £5.03
Workers who are younger than 18 – £3.72
Apprentices – £2.68
Accommodation offset limit – £4.91 per day
Any new cases to be aware of?
Just a couple this month:
- An employment tribunal has held that upon termination of an employee’s employment any payments made in lieu of accrued but untaken holiday must be calculated to reflect the employee’s normal pay. Whilst the Working Time Regulations allow employers and employees to agree what rate would be payable upon termination in a written agreement, giving rise to the thought that an employer could put a clause in a contract of employment stating that any untaken holiday would be paid at a nominal rate of, say, £1, the tribunal held that this was not consistent with EU law which requires employees to be put in a comparable position to that which they would have been in had they taken their holiday during employment. Although this judgment is not binding on other tribunals (given that it is only at tribunal level), we would expect the EAT or higher appeal courts to uphold the decision which would then make it binding
- In Blackburn v Aldi Stores Ltd, the EAT confirmed that an employer’s failure to ensure that an employee’s appeal against the outcome of a grievance would be managed impartially could constitute a breach of the implied right of trust and confidence, giving the basis to a constructive unfair dismissal claim. It is also important to note that failure to deal impartially with a grievance could amount to a breach of the ACAS Code of Practice, paving the way for any compensation awarded to be increased by 25%
