Wednesday, 15 April 2015

Tupe: When are employees assigned to a service?

The EAT in London Borough of Hillingdon v Gormanley 12 November 2014 has affirmed that the key authority on the definition of assignment remains the CJEU decision in Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ICR 519. This ruling requires consideration of the contractual duties of employees and their role in the organisational framework of the putative transferor.

At para. 66 we are also reminded of when the EAT may make a costs order against a party:

66.               The Employment Appeal Tribunal Rules 1993 (as amended) provide:
“34A(2A) If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor”

Langstaff P gave guidance on the application of Rule 34A(2A) in Look Ahead Housing v Chetty UKEAT/0037/14.  At paragraph 53 he held:
“For the benefit of other cases which may follow, it seems to me that in a case in which an appeal is brought which is entirely rejected, there is no basis for any payment by the successful party to the Appellant.  Where there is an appeal which is partly successful, all will depend upon the particular facts.  The Rule does not permit the payment of the actual costs of litigation, apart from fees, from one party to another.  What the court centrally has to assess is whether it was necessary to incur the expense in order to bring the appeal – this includes asking whether the appeal, as in the present case, could have been avoided by the Appellant taking reasonable steps, or was made more likely to proceed by the behaviour of the Respondent to it; it should then recognise the fact, if it be the case, that an appeal has largely failed or for that matter largely succeed in deciding, in its discretion, exercised reasonably, whether it should award the full extent of the payment made by way of fees, or whether it should moderate that amount to a reasonable extent.  A reasonable extent includes making no award at all, though in circumstances in which an appeal has been partly successful this would have to be carefully justified and is likely to be rare.”

Tuesday, 14 April 2015

At last some guidance on 'public interest' in whistleblowing cases

Recently the Government decreed that whistleblowing complaints have to satisfy yet another technical test in that the protected disclosure must be of a nature to be 'in the public interest' before 'liftoff'. Most of us have been feeling in the dark as to what this could mean but finally the EAT has lobbed us a few pearls of wisdom in the case of Chestertons v Nurmohamed Appeal No. UKEAT/0335/14/DM
The crux of the matter determined by the EAT can be found in para. 36 'The sole purpose of the amendment to section 43B(1) of the 1996 Act by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd'.

The appeal before Mr Justice Supperstone concerned the meaning of the words “in the public interest” inserted into section 43B(1) of the Employment Rights Act 1996 by section17 of the Enterprise and Regulatory Reform Act 2013.

The nature of the protected disclosure involved a large group of staff rather than the general public.

The Respondent was Director of the Mayfair office of the First Appellant, a well-known firm of estate agents.  He made three alleged protected disclosures, two to the Area Director for the Central London area and one to the Second Appellant, the First Appellant’s Director of Human Relations.  The Respondent stated that he believed the First Appellant was deliberately misstating £2-3million of actual costs and liabilities through the entire office and department network which affected the earnings of 100 senior managers, including himself.

The Employment Tribunal concluded that the disclosures were made in the reasonable belief of the Respondent that they were in the interest of 100 senior managers, and that that is a sufficient group of the public to amount to be a matter in the public interest.  The decision of the Tribunal was that the Respondent was unfairly dismissed and automatically unfairly dismissed by the First Appellant and that the First and Second Appellants subjected him to detriments on the grounds that he had made protected disclosures.

The Employment Appeal Tribunal rejected both grounds of appeal:

(i) that the Tribunal erred on concluding that disclosures made in the interest of the 100 senior managers was to a sufficient group of the public to amount to being a matter in the public interest; and

(ii) that it was for the Tribunal to determine objectively whether or not the disclosures were of real public interest, and this the Tribunal failed to do.

The EAT concluded that: The question for consideration under section 43B(1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest; (2) the sole purpose of the amendment to section 43B(1) by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd.  The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. 

Noteworthy paragraphs:

34.          I accept Ms Mayhew’s submission that applying the Babula approach to section 43B(1) as amended, the public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable.

35.          In my view the Tribunal properly asked itself the question whether the Respondent made the disclosures in the reasonable belief that they were in the public interest.  The Tribunal proceeded to answer that question at paragraphs 146-151 of the decision (see paragraph 14 above).  The Tribunal concluded (at paragraph 151) that the disclosures were made in the belief of the Respondent at the time that it was in the interests of the 100 senior managers and that that belief was reasonable.  There is now no challenge to the finding that the Respondent had a reasonable belief that he was making protected disclosures (see paragraph 6 above).

36.          The objective of the protected disclosure provisions is to protect employees from unfair treatment for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace (see ALM Medical Services Ltd v Bladon at paragraph 16 above).  It is clear from the parliamentary materials to which reference can be made pursuant to Pepper (Inspector of Taxes) v Hart [1993] AC 593 that the sole purpose of the amendment to section 43B(1) of the 1996 Act by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd.  The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications.  As the Minister observed: “the clause in no way takes away rights from those who seek to blow the whistle on matters of genuine public interest” (see paragraph 19 above).

Monday, 26 January 2015

Underpaying Minimum Wage: A National Concern Guest Post

A recent report released by the Department for Business, Innovation and Skills has brought to light the full extent of some employer's failure to pay national minimum wage to their workers.
In total 37 firms have been shown to violate the law, which has resulted in a combined fine of £51,000 and a payout of £177,000 to employees missing their wages.

Who is to blame?
One of the most prominent companies under examination is high street clothing retailer H&M. The organisation which employs over 9,500 people in the United Kingdom has blamed their actions on 'time logging errors' in their system. The average wage paid to those affected was a mere £4.82.
Another business found to have underpaid their customers is  the motorway service station company Welcome Break, which underpaid 20 of its workers for a sum totalling 1,319; creating an average underpayment of £66 per employee.
Welcome Break's actions were exposed when an employee lodged a complaint with the HMRC to explain that her pay rate had not increased in line with the national minimum wage following her 21st birthday. Before long other employees were revealed to be in the same position.
Of all the companies to be exposed, the organisation responsible for the biggest violation of payment is Kings Group; a Hertfordshire estate agent. This organisation's main company cost 53 workers a total of £53,809, while their sister company Kings Group Lettings LLP underpaid 49 staff for a total of £26,893.

Minimum wage: Employment law facts & figures
Minimum wage is a completely non-negotiable figure that differs depending on an employee's age. Adults ages over 21 must receive a minimum of £6.50 an hour,  18-20 year olds are given £5.13, and 16-18 year olds take home at least £3.79.
When an employer deviates from providing fair pay they're in direct violation of the National Minimum Wage Act 1998, and a failure to provide the amount of money due is certainly grounds for an employment law tribunal.

Criticism of minimum wage
The adult minimum wage is already largely considered to be too low to assist the personal situation of most UK residents. The Tory, Labour and Liberal Democrat parties have all expressed a desire to raise the amount.
Labour has pledged to raise the minimum wage if they win the 2015 general election, while Conservative Councillor of the Exchequer, George Osborne, has spoken of the possibility that minimum wage could rise to £7.00 an hour within the next few months if the economy continues to improve.

Recent issues
This is one of many recent issues affecting employees on minimum wage. Several firms have been  accused or finding ways to avoid paying employees their share through the use of underhanded tactics like charging employees for the use of company uniforms and underpaying interns.
Other unfair methods prevalent in the underpayment of minimum wage include deliberately under-recording working hours, and refusing to pay travel expenses where necessary.

Result of the revelations
The TUC has drafted a plan to ensure that minimum wage payments are enforced, and Frances O’Grady, the general secretary of TUC, has summed up the shameful, dishonest nature of underpayment by claiming that “Failing to pay the minimum wage is an antisocial act that squeezes those workers who have the least.
She has also spoken about the need for larger government assitance: “Ministers must also step up enforcement action with more prosecutions, higher fines and a bigger team of enforcement officers to catch the cheats."
Will these new rules make a difference? We'll have to wait and see.

If you have concerns regarding minimum wage issues or the legislation of any other form of employment law concern, be sure to contact a professional employment law solicitor to better your rights ans entitlements.
Submitted on behalf of Nationwide Employment Lawyers

Please note that whilst every effort is made to maintain accuracy of the content in this article; we cannot take responsibility for any errors. This author is not a Lawyer or HR Specialist and this cannot in any way constitute a substitute for Employment Law advice. All facts should be cross-checked against other sources. Contact Nationwide Employment Lawyers should you require specific advice.

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Friday, 23 January 2015

New case whistleblowing – knowledge of detriment and time limits

In McKinney v London Borough of Newham the EAT looked at when the three-month time limit starts to run where an individual is alleging he has suffered a detriment for whistleblowing.

Croner have produced a useful case summary....they helpfully conclude with:

'The decision clarifies that time begins to run in detriment for whistleblowing cases in the same way as detriment in discrimination cases. This means it is more difficult for whistleblowers to bring their claims in time when they are not aware of the date of any detrimental decision or failure to act. However, it is also likely, in most circumstances, that a tribunal will find it was not reasonably practicable to do so and will extend the time limit.'


Monday, 19 January 2015

Judgment reaffirms law in Ladd v Marshall when a judgment may be reviewed in the light of new evidence

According to Outasight VB Ltd v Brown the principles set down by the Court of Appeal in Ladd v Marshall still apply to the question of whether the ‘interests of justice’ require a review (now known as ‘reconsideration’ under rule 70 of the 2013 Rules).

At the reconsideration hearing, the tribunal did not accept B’s assertion that he had been unable to find the evidence before the liability hearing. It noted that, under the ‘strict’ rule 34 of the Tribunal Rules 2004, this would not count as ‘fresh evidence’. However, the tribunal took the view that it had wider discretion under rule 70 of the 2013 Rules, which allows for reconsideration where necessary in the interests of justice, and agreed to revoke its judgment.

Her Honour Judge Eady QC, sitting alone in the EAT, reviewed the change of language between the 2004 and 2013 Rules. Rule 34(3) of the 2004 Rules set out specific circumstances in which a judgment may be reviewed. These included, at paragraph (d), where new evidence became available that was not available at the time of the hearing. Rule 34(3)(e) also provided for review where the interests of justice required it. Thus, rule 34(3)(d) reflected the principles governing the admission of new evidence on appeal set out by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA, and rule 34(3)(e) recognised that, even where these principles were not strictly met, the interests of justice may still require new evidence to be considered. In HHJ Eady’s view, the fact that rule 70 of the 2013 Rules dispenses with the specific categories did not indicate any change of position, nor did it suggest that the Ladd v Marshall principles no longer applied.

Friday, 16 January 2015

Plans to limit the number of adjournments

The Department for Business, Innovation & Skills (BIS) (the department for economic growth) has issued a consultation document, seeking views on new legislation restricting adjournments in employment tribunals.

The proposals are:-

A. if a party has already been granted two adjournments (for whatever type of hearing, preliminary or final), it will not be allowed a third adjournment.

B. if a request for an adjournment is made less than seven days before the hearing, it will not be granted.

However there will be exceptions to these rules:

(i) both parties agree the adjournment and the tribunal believes it is desirable to facilitate a settlement; or (ii) the adjournment is requested for a reason beyond the party's control (eg an administrative error by the tribunal, or late disclosure of documents by the other side). In such a situation, the postponement may be granted but a new rule will require the tribunal to consider whether a costs order should be made.
(iii) or cryptically if exceptional circumstances apply/

The consultation closes on 12th March 2015. I cannot help that this formulaic approach is unnecessary when Employment Judges are able to make the decision themselves.

Thursday, 15 January 2015

Acas early conciliation form changes and slanted market research

ACAS have now added a box which allows the Claimant to include the contact details of their rep so that they might be contacted directly.

Also now the employee must add the employer's details manually.

As an aside, I am expecting market research results to be published soon which show the whole process to be given a big thumbs up not because those forced to used the system think it is necessarily useful but because the questions I was asked as a representative using the system were entirely leading in my view and set up in order to make sure the conciliation process came out glowing.

I am not sure how many representatives have been asked about the specific performance of their ACAS conciliator in a particular case but from my experience their use has been varied depending on the case and the energy of the individual. One worrying point has been that quite a few Claimants have contacted me to say that they had actually received legal advice from an ACAS conciliator, indeed on conciliator actually tried to tell me what I should be advising my client.