An employment tribunal has found that an employee absent on long-term sick did not transfer under TUPE when his employer lost a contract to another company.
TUPE (Transfer of Undertakings (Protection of Employees) Regulations) is the set of rules by which employees go with the assets of a company from a seller to a buyer when a company is bought or sold, preventing unscrupulous employers from cherry-picking the best employees and leaving the rest.
Mr Edwards was employed by BT Managed Services Limited as a Field Operations Engineer. His team’s work was outsourced to Ericsson, with his team being an organised grouping of employees under TUPE.
The EAT decided that E did not form part of that organised grouping and so he stayed with his employer. He had been absent on long-term sick leave for five years and was regarded as permanently incapacitated. When his PHI scheme payments ran out BT continued to make payments to him, meaning that he stayed “on the books” as an employee.
But because there was no prospect of him returning to work and he did not contribute to the economic activity of the organised grouping, he was not “assigned” to the grouping and did not transfer under TUPE, according to the ET. The EAT has now agreed with that decision.
This is a rare, but interesting situation for employers who deal with TUPE situations, such as care homes and the security and cleaning industries.Read More
We reported on this case some time ago. The case is about an employment tribunal that found a family abused its Indian domestic help recruited from India and paid 11p for each hour that she worked, calling it race discrimination on the ground of caste. It has awarded her £184,000 in back-pay for working 18 hour days and she looks set to receive more for injury to feelings.
Employers Pooja and Ajay Chandhok kept the woman as a low-paid ‘servant’ working in their home in Milton Keynes for four and a half years, keeping her passport and controlling her movements.
Her lawyers had said that her employers had treated her that way because she was perceived as underneath them due to her caste. An employment tribunal found that this was a form of race discrimination.
Caste discrimination is something that UK employment law has declined to make a separate discrimination despite the new Equality Act of 2010. This has not been without controversy but enterprising lawyers have found ways around this with clever arguments based on the wording of race discrimination laws.
The claimant felt that she had been brought over from India as she spoke the language of the family but did not know UK employment law rights.
Eventually the claimant resigned, and found a charity, that provided emergency accommodation and later an employment law solicitor. Mr and Mrs Chandhok were ordered to pay £183,773, which was the estimated value of the number of hours she worked times the national minimum wage, less the pittance actually paid.
Hatton James is one of few firms with experience of bringing caste discrimination claims. If you have a race discrimination case in an Indian context then this is an angle that you might want to consider.
News report: Tirkey v ChandookRead More
In a recent employment tribunal case the Employment Appeal Tribunal found in favour of an employee who was dismissed after a disciplinary for fiddling his expenses.
As is normal in large organisations the disciplinary manager was guided in the disciplinary process by the HR department during the disciplinary process.
However they not only gave him advice on the company’s disciplinary procedure and on staying within the law but they also offered an opinion on whether the employee was telling the truth in his disciplinary investigation. As is usual in the employment tribunal process, the company disclosed its HR emails to the employee. They showed that the disciplinary manager had made comments that were favourable to the employee early in the drafts but that later drafts didn’t contain them.
The EAT said that a manager in such a situation needs to explain what it was that persuaded the manager to change his views so radically, because it looked as though HR had tried to persuade the manager to dismiss. The employee won the appeal but the employer would get another chance to defend itself and this time explain why the manager changed his mind in the report.
It is a fundamental part of fairness in disciplinary cases that the employee can have their case heard by an impartial manager who has heard the evidence in the case. The manager can take soundings, but must form their own views.Read More
You may have read in the news today of an EU ruling on working time that affects workers who are not office-based. Time spent travelling to and from first and last appointments by such workers should now be paid. Many employers do this already, but many do not.
This particularly affects you if you are a care worker, plumber, sales rep, or similar. If you are more akin to a professional, who occasionally go to client meetings it affects you too, although if so you are likely to be unaffected because you will be deemed to be able to choose your own working arrangements. Neither will it probably affect those who have signed a 48 hour a week opt-out of the working time regulations.
There is no impact on the national minimum wage, which calculates working time by a different set of rules.
The working time directive protects workers by setting rules on how long employees work, how many breaks they have, and how much holiday they are entitled to. It puts a ban on a working week longer than 48 hours, although UK employment law currently allows it if the employee opts out in writing.
Employers can mitigate the effects by organising work schedules to put first and last appointments close to home.
The judgment is retrospective, posing a worry about employment tribunal claims for past breaches and back-pay for some employers.
Finding for a group of security installer claimants, the European court said that if workers begin or finish the journeys far from home, it is because the employer got rid of the regional offices. The employee should not pay the price, as it is detrimental to their health.
This will have some impact for certain employers and it is another example of the trend at the EU employment law level towards improving employment law rights for employees.Read More
A clear example of this can be seen in the recent global gender gap report which is an annual survey taken on by the world economic forum, founded in 2006.
The report claims that European women are paid a shocking 36% less than men for doing equal or similar jobs.
This report identifies that there is still a huge gender gap which has still not been resolved in the modern era. What is even more shocking is that the UK is no better than most of the other European countries. In actual fact our ranking has slipped out of the top 20 countries landing us at 26th place.
What went wrong?
After all we did previously rank 9th but over the years the economic report has seen us slip into a steady decline. Some reports suggest we are slipping in terms of sex discrimination because of the way we used to structure our childcare and paternity leave (as of 2015 maternity leave can be shared), and increasingly large amounts of women in senior roles are taking home less than men also in senior roles.
Overseas, the worst countries for these gender gaps are Italy, France and Hungary currently ranked between 129th and 126th place with only 48% of women receiving an equal amount to men.
Predictions suggest that the sex discrimination in salaries may not be eliminated until the year 2095.
It appears however women are not the only ones being hit as recently back here in Britain a group of men have recently won an equal pay claim against the University of Wales.
The group of men may go down in history for being the first group of males to actually come out and seek legal advice for a sex discrimination claim. The finding came after a new system was put in place at the university where instead of being on a £45 an hour a week it was decreased to £37, they then noticed female colleagues had higher pay even though they stand on the same pay scale.
Another group of men have also insisted upon making a sex discrimination claim if the men were successful; in total if all 25 male employees win their claim and get back pay plus interest, the university could end up paying out a substantial amount of £750,000.Read More
The Metropolitan Police deleted records on sex and race discrimination against one of its employees, according to a BBC news report.
Discrimination in the Met
An employment tribunal heard that a 35-year old police officer was singled out for unfair treatment. She was part of the armed group that protects VIPs.
Managers asked a police officer investigating the Met’s discrimination record to delete references to race and sex discrimination from a report into the officer for the Diplomatic Protection Group. This is not a breach of UK employment law but if an employer does this it tends to suggest that it takes a lax approach to diversity.
WPC Howard brought a discrimination claim alleging that her employer directly discriminated against her and victimised her on the grounds of sex and race between in 2012. Her employer dismissed the complaint without a proper investigation and the tribunal decided that this was an act of spite done because she had brought a complaint of race and sex discrimination in the tribunal.
The treatment against her also amount to discrimination and harassment. London mayor Boris Johnson said he was dismayed by the findings of the tribunal.
What led to victory for this employee was that within weeks of becoming her line manager the inspector formed the view that she was below par but he couldn’t show any real basis for believing this.
It became clear during the employment tribunal case that deleting records relating to discrimination was routine policy within the Met.
Although deleting information is not a breach of UK employment law any business that does this is leaving itself wide open to losing any employment tribunal claim it faces, since the rule is that there is no smoke without fire, i.e. if a claimant can prove that discrimination seems to have taken place, the employer has to disprove it in order to win the case.
Information that you have on file can include details of grievances and disciplinaries, diversity information gathered from questionnaires, records of managerial training, emails to and from HR raising concerns and so on. In an employment tribunal claim, both parties are ordered to send copies of all documents containing information relevant to the claim (for example a discrimination claim) and this is the sort of information that is relevant. The lawyers will use that in an employment tribunal hearing to try to show, for example, that the workplace doesn’t take discrimination seriously or that the claimant willingly participated in harassment.Read More
A joint report (“The Compensation Myth”) by lawyers and a union this month reveals that workplace compensation cases for health and safety breaches have fallen by more than 50% in the last decade.
In a move unlikely to quell the popular conception of an employment tribunal compensation culture, it reported that 85% of the 500,000 workers injured each year do not receive any tribunal compensation at all. Over 50% of compensation awards are less than £5,000, and 75% are less than £10,000.
The most common injuries include musculoskeletal disorders such as RSI.
Compensation payouts for employment tribunal claims in the UK are based on a judge-made price-list according to the severity of the injury. For example a lost tooth is “worth” £1,250 while blindness is valued at approximately £175,000. Paralysis can result in an award of millions because of the need for round-the-clock care and it is can be cheaper to kill than to leave a person injured.
Wrangling with insurers aside, you will be insured for these risks but workplace injuries lead to a huge amount of absence for employers to deal with. Back pain alone accounts for 119 million sick days annually and the average number of work days lost due to sickness absence is 7.4 per employee per year.Read More
MYTH: Asking about family plans at a job interview is unlawful
FACT: It is not against employment law to ask about a candidate’s family, or plans for one, at interview. But if you refuse to employ someone because of their family duties, this could be sex discrimination, with your question being used against you as evidence. Instead, employers should phrase the question about ability to travel away from home or perform regular overtime – if it’s relevant to the job.
COST: A discrimination claim can be costly with unlimited employment tribunal compensation including damages for injury to feelings up to £30k and damage to your reputation.
MYTH: Employees have no rights without a written employment contract.
FACT: Employees have rights including:
- Minimum notice (after one month’s employment – see below)
- The right to claim unfair dismissal (after two years’ employment)
- Protection from discrimination
COST: There is no stand-alone penalty for having no employment documents in place but successful employment tribunal claims on other grounds will result an additional award of up to a month’s pay.
MYTH: Employees have no right to notice during their probationary period.
FACT: After a month’s employment, employees are entitled to a week’s notice under UK employment law (whatever the employment contract says). This increases by one week for each full year of service, to a maximum of 12 weeks.
COST: Employees who are dismissed without notice can claim pay and benefits for the notice period (except in cases of gross misconduct).
MYTH: You can’t just dismiss an employee after the probationary period
FACT: Probationary periods are not worth the paper they are written on. An employee can be dismissed in the first two years for no reason at all (with certain exceptions, eg for discrimination or whistle-blowing).
COST: Don’t keep an under-performing employee longer than you need to. In the first two years, an employee can dismiss for almost no reason at all.Read More