September’s Employment update covers:
1.Removing a contractual benefit post-transfer
2.When is a Zero Hour Worker an Agency Worker?
3.New ACAS guidance – employment references
4.Can a poorly handled ill-health retirement procedure amount to disability discrimination?
5.Parental Bereavement (Leave and Pay) Act 2018
Tabberer v Mears Ltd 2018
Post-transfer changes to terms and conditions will be void under TUPE if the sole or principal reason for the change is the transfer.
The Claimants in this case were electricians who had the benefit of “Electricians Travel Time Allowance” (“ETTA”) since 1958 and were formerly employed by Bristol City Council. In 2008 the Claimants employment TUPE transferred to Mears Ltd. In 2012 Mears Ltd gave notice that they were going to end ETTA as it was an outdated and unjustified allowance.
The Claimants attempted to argue that this change in terms and conditions was void under Regulation 4 (4) TUPE as it was connected with a transfer. They argued that the reason for the reason for the variation of the terms and conditions was the transfer.
However, the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”) disagreed with the Claimant in that the reason the ETTA was cancelled was because it was outdated and it was not connected with the transfer.
Note to Employers: Although rare, this is a useful example of when changes made to terms and conditions post-transfer not being void. The question that needs to be asked is, what caused the Employer to do what it did? While it might not always be as clear as was the case in this claim, when the underlying reason for the change was one which would have applied regardless of the transfer, then this change will highly likely not be void.
Can a temporary zero hour worker be an agency worker?
In Matei v Brooknight Guarding Limited the Employment Appeal Tribunal (“EAT”) held that an employee on a zero hour contract could be an agency worker if his position was temporary and not permanent.
The Claimant was employed on a zero hour contract as a security guard. He was employed by the Respondent who is a security company which employs security guards on “zero hour contracts” to guard a variety of sites in and around London. He was employed for 21 months before being dismissed and apart from one stint with another client he exclusively worked at sites for one particular client, Mitie.
The Respondent attempted to argue that the Claimant worked permanently for Mitie but this was rejected by the Employment Appeal Tribunal (“EAT”) who found that the Respondent was a temporary work agency due to the temporary nature of his assignment. The EAT held that the key issue in determining agency worker status was the nature of the work carried out by Mr Matei and whether it was on a permanent or temporary basis, not the type of contract he worked under or the length of his employment.
Note to Employers: This case further illustrates that issuing zero hour contracts do not automatically take workers outside of statutory employment protections. If your company regularly uses zero hour contract it is imperative that the contracts are comprehensive and protect against this type of claim as much as possible.
ACAS have just released new guidance to help employers and employees know the rules surrounding employment references.
As the requirement for relevant work experience is so vital, with nearly half of employers wanting job applicants to have relevant work experience, it is important to know the legal requirements surrounding work references.
The new guidance covers matters such as:
- What a reference must include
- Whether or not a reference must be provided
- Whether an employer can give a bad reference
- Problems with references
- Job offers and references
Note to Employers: it is important to remember that if you are providing an employment reference the information given should be fair, accurate and support any opinions with facts.
In order to avoid unlawful discrimination claims as well as claims for negligent misstatement it is important to maintain a consistent approach. In order to ensure references are consistent ACAS recommend that there is a policy in place for dealing with reference requests.
Please see the full guidance here.
No, the Court of Appeal held in Dunn v Secretary of State for Justice and anor.
Although the process was held to be inherently defective and unnecessarily bureaucratic it was not badly handled or inherently discriminatory.
Mr Dunn was a prison inspector employed by the Ministry of Justice. He became ill with depression and a serious heart condition. He applied for early ill-health retirement and the application took 13 months to be processed.
Although his employers were very apologetic throughout the lengthy process Mr Dunn was disgruntled by the whole ordeal and brought claims of harassment and discrimination. The Employment Tribunal found in favour of Mr Dunn on 3 of his 16 discrimination allegations however this was overturned by the Employment Appeal Tribunal (“EAT”. The EAT held that there was no disability discrimination. Mr Dunn then appealed to the Court of Appeal.
The Court of Appeal upheld the EAT’s decision as the claimant must be able to prove that there was discriminatory motivation on the part of the decision maker and in this case although there was significant delay this was not because of Mr Dunn’s disability.
Note to Employers: Early ill-heath retirement is a sensitive and difficult situation and it is important that the process is carried out with efficiency and compassion. It is advisable to appoint an individual to be responsible for workforce disabilities. This will increase trust and confidence in the employees as they would have one key point of contact for all disability related queries.
On 13 September 2018 the Parental Bereavement (Leave and Pay) Act 2018 received Royal Assent and is expected to come into force in April 2020.
The Act will give bereaved parents the right to two weeks of time away from work if they suffer the loss of a child under the age of 18. This is subject to meeting an eligibility criteria which is similar to that of statutory paternity pay which includes having had 26 weeks continuous employment.
All the rest of details surrounding the Act will appear in the supporting Regulations which are not yet published. They will include details such as; the definition of “bereaved parents”, how and when the leave can be taken, the notice and evidence that will be required and details of how much remuneration will be payable.
Note to Employers: Once the further details on the implementation of the Act are confirmed then policies and procedures will have to be reviewed to ensure that Employers remain compliant with the new legislation.
You can access the Act here
If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team.