Employment Law Newsletter – September 2015

Welcome to our September Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent developments over the last month.


TUPE Regulations

In BT Managed Services Limited –v- Edwards the EAT had to decide whether an Employee who was permanently off sick could be considered to be assigned to an organised grouping of employees under a TUPE transfer.  Mr Edwards had been off work for a period exceeding 5 years, during which time he had received PHI benefits and then discretionary sick pay.  He had continued to remain on the books of the Respondent.  The particular unit that he was employed in was transferred from the Respondent company to Ericsson.  Mr Edwards argued that he should have transferred to Ericsson under the TUPE Regulations.  The Employment Tribunal disagreed as did the EAT.

The EAT held that in order for Mr Edwards to have been assigned to the organised grouping Mr Edwards would have generally been required to have “some level of participation, in the case of temporary absence, an expectation of future participation in carrying out the relevant activities on behalf of the client”. They differentiated between permanent capability and someone who would be on maternity leave or long term sickness absence where the absence would be on a temporary basis.  In this case it was held that there was only an administrative connection.  Therefore the employee was not assigned to the grouping in question.

Disciplinary Hearing – Choice of Representative

In Stephens –v- University of Birmingham the High Court had to make a decision as to whether denying an employee a choice of representative at a disciplinary hearing other than a union representative or a colleague would be sufficient to breach the implied term of trust and confidence.

Mr Stephens was an academic at the University when allegations were raised against him relating to his role as Chief Investigator of clinical trials of patients suffering from diabetes.  During the investigation he was supported by a representative from the Medical Protection Society.  The matter was then escalated to a disciplinary investigation.  He was not a member of a union nor did he have a colleague employed by the University that would be suitable to accompany him to the investigative meeting.  He therefore requested that he should continue to be represented by Dr Palmer of the Medical Protection Society who had assisted him up to that point.  The University refused.

The Court held that the University had breached the implied term of trust and confidence for 4 different reasons including the seriousness of the allegations, that the Medical Protection Society served a similar function to a union and Mr Stephens had been permitted the assistance of Dr Palmer up to that point.

This is a clear example of where companies need to seriously consider requests to have alternative representatives at and during a disciplinary process.  It should be remembered that the offer of a trade union representative or a colleague is statutory minimum requirement.

Dismissal by reason of comments on Facebook

In British Waterways Board –v- Smith, the EAT had to decide whether comments made by an Employee on Facebook which he later claimed to be untrue was sufficient to amount to gross misconduct.  Mr Smith had made derogatory comments on his Facebook page about his managers and work claiming that two years earlier he had been drinking whilst on standby.  There was a policy that employees were not permitted to consume alcohol during a standby period.  During the disciplinary process, Mr Smith argued that he had not in fact been drinking and that comments on Facebook were banter.  The British Waterways Board dismissed him for gross misconduct stating that his comments had undermined the confidence in him.

The Employment Tribunal found that Mr Smith had been unfairly dismissed.  However the EAT overturned the decision and held that the dismissal was fair.  They stated that having found the procedure, leading up to the dismissal to be fair, the Employment Tribunal must have concluded that Mr Smith’s mitigation had been taken into account and therefore the Employment Tribunal should not have substituted their view for that of the employer.  It was held that the employee had been fairly dismissed for gross misconduct.

It is amazing how employees continue to be so naive in relation to comments made on social media.

Agency Workers Regulations

In Coles –v- Ministry of Defence the EAT had to decide whether an agency worker in a temporary job should be given the right to apply for that job or alternatively to get preference ahead of permanent employees within the same organisation.  The Claimant found himself out of “his” job after a redundancy exercise by the Ministry of Defence.  The Ministry of Defence filled the Claimant’s role without offering him an interview.  He had been informed of the vacancy as per the Agency Workers Regulations 2010.  However he argued that by not allowing him to apply for that post, and giving him preference to take that post ahead of permanent employees, breached his right to “equal treatment”.  It was held by the EAT that agency workers were entitled to equal treatment which is limited only to working time and pay.

The EAT held that the failure to offer interviews to agency workers did not breach any duty under the Directive.


Tribunal Fees

Unison has lost its Court of Appeal case, which challenged the legality of Tribunal Fees.  Whilst the Court of Appeal was concerned about the sharp decline in Employment Tribunal claims, it said that in itself that was not sufficient and there needed to be evidence of the “actual affordability of the fees in the financial circumstances of (typical) individuals”.

However within days of the outcome of this case, the Scottish Government announced that it intends to abolish Employment Tribunal fees.

Consultation on Termination Payments

The Government has started consulting on simplifying the tax element of termination payments.  The proposals are to:-

  1. Remove the distinction between contractual and non-contractual payments.
  2. Change the current £30,000 tax free sum to an amount which would increase with the length of an employee’s continuous employment.
  3. Introduce a two year qualifying period before an employee can receive a tax free payment.
  4. Make injury to feelings awards subject to tax for some or all of the damages awarded.

No specific thresholds are set out yet, however it can only mean a significantly reduced tax free sum being available in the future.  We will keep you updated as the consultation progresses.

Contact us

If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.

This newsletter does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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