What did we get up to last month?
The first report from ACAS following implementation of the compulsory Early Conciliation process has been released. By way of a very quick summary, since 6 May 2014 it has been compulsory for all potential claimants in Employment Tribunal claims to notify ACAS of their potential claim before they will be permitted to issue proceedings. The idea behind this is to give ACAS the opportunity to facilitate settlement of the dispute without the need for legal proceedings to be launched. According to the report, between 6 April 2014 (which is the date that the Early Conciliation process became available to parties to a dispute) and 30 June 2014, ACAS received 17,145 notifications, 11,355 of which had completed their EC period by 30 June. Settlement was reached in 1,873 cases, which is 16.5%. There has been some debate in the office about whether this is a good success rate; I think that it is a disappointingly low figure, Katharine thinks it is surprisingly high and Alison’s estimate of “a bit less than 20%” was almost spot on. More surprising, in my view, is that 7% of potential claimants rejected the opportunity to settle and presumably simply notified ACAS in order to tick the requisite box. Given the expense of issuing a claim these days it seems odd to not want to try to engage in a formal process designed to help avoid this cost.
We’ve seen a number of articles this month focusing on the issue of pregnancy and maternity discrimination in the workplace. According to this article, 6 out of 10 women believe that they have been discriminated against at work after becoming pregnant, and in this survey, 40% of the 500 managers asked admitted to avoiding hiring women of child-bearing age for fear of their business being disrupted by pregnancy and childbirth. It is this disparity of treatment between men and women and mothers and fathers in the workplace that the government hopes will be addressed when the new shared parental leave regulations come into force later this year. These regulations, which will allow mothers and their partners to choose how to take 50 weeks leave between them, will have a significant impact for all employers and will eventually, if not immediately, go some way to addressing the prevalence of maternity and pregnancy discrimination at work. We will be putting together a more detailed briefing about shared parental leave which we will email out later in the year.
Any plans for next month?
Our next HR Breakfast Club workshops will take place on 16 and 18 September on the topic of “misconduct disciplinaries and dismissals”. We are now full on 16 September but there are a couple of places left on 18 September. It’s not too late to book for that date, so do follow the booking instructions in your email invitation if you would like to attend.
Katharine will be taking part in the Cambridgeshire Chambers of Commerce “Autumn Collection” in Cambridge and Peterborough at lunch time on 1 and 8 October 2014 respectively. Speakers will provide a 10 minute presentation on topical employment issues and this will be followed by the opportunity for attendees to ask questions and discuss the subject around the table with follow delegates. Use the links above to book a place if you would like to take part.
Any new cases to be aware of?
A few TUPE ones (amongst others) this month:
In Cetinsoy v London United Busways, the EAT upheld the Tribunal’s judgment that bus drivers who were required to relocate some 3.5 miles following a TUPE transfer were not entitled to claim constructive dismissal or breach of TUPE regulations. The EAT held that the Tribunal was entitled to conclude that the relocation was not a substantial change to the drivers’ working conditions to their material detriment.
In Housing Maintenance Solutions Ltd v McAteer, the EAT confirmed that a TUPE transfer takes place when the responsibility for the business undertaking in question transfers from one entity to another, and not when the responsibility for the employees alone is taken over (which won’t necessarily be at the same time).
The EAT held that there had not been a TUPE transfer arising in a change of service provider in the case of Horizon Security Services Ltd v Ndeze. The London Borough of Waltham Forest (LBWF) owned a business centre which engaged Workplace plc to manage. As part of that contract, Workspace sub-contracted with the PCS Group to provide security services at the centre – Mr Ndeze was one of the PCS Group employees who worked on that contract. LBWF terminated the management contract with Workspace when it decided that the centre was to be abolished and the contract with PCS Group was terminated in consequence. LBWF then engaged Horizon to provide security at the centre up until the date of its demolition.
The EAT held that TUPE had not been triggered by the change in security service providers since in order for the TUPE Regulations to apply, the client must remain the same. Here, the original client of PCS Group was Workspace and the subsequent client of Horizon was LBWF. On this basis, TUPE did not apply.
TUPE remains a tricky area of law which can have significant consequences for employers. Contact us if you have any potential TUPE situations coming up – we’d be happy to help.
In London Borough of Southwark v Charles, Mr Charles (who was disabled) was dismissed by reason of redundancy. There had been a vacancy for redeployment within LBS but Mr Charles’ disability meant that he was unable to attend interviews and because of that, LBS concluded that it was unable to assess his suitability for the role. It was held by the Tribunal, and confirmed by the EAT, that LBS had failed to make a reasonable adjustment to its redeployment process by relying so heavily on an interview being carried out to assess the suitability of candidates. It was held that there were other ways in which Mr Charles could have been assessed, such as being interviewed at home or participating in a less formal process. Further, he had been employed for several years and it would have been entirely possible for his managers, who knew him well, to be able to give a view as to his suitability.
A mini quiz – win doughnuts for your office!
We thought it was about time again for our mini-quiz to have a prize. This month, we are inviting you to email the correct answers to the questions below by 5pm on Tuesday 30 September to be in with a chance of winning a box of 12 doughnuts to be delivered to your office. The winner will be chosen at random from all correct entries received by this deadline.
1. If an employee is dismissed because of his or her affiliation with a particular political party, must he or she have two years’ service to be able to bring a claim for unfair dismissal?
a) Yes
b) No
2. What is the statutory minimum holiday allowance for workers?
a) 4 weeks per year
b) 4.8 weeks per year
c) 5.6 weeks per year
3. According to the Employment Rights Act 1998, what is the fifth potentially fair reason for dismissal after redundancy, capability, some other substantial reason and conduct?
a) Retirement
b) The employment being in breach of a statutory restriction
c) Performance
