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Archive for February, 2014

Wednesday 12 February 2014

Employment Law Bulletin February 2014


 The newly fiddled-with TUPE came into force on 31 January. Last month’s bulletin covered some of the main changes which have now taken effect.

 In all the debate about the changes, one really important aspect has been neglected – how “TUPE” is pronounced. This has been a subject of uncertainty since the regulations were introduced over thirty years ago. We have heard all sorts of innovative variations – “tyoop“, “tawp” and on one memorable occasion (presumably as a nod to the regulations’ European origins) “toupée“. Whilst the majority favour “chew-pee“, there is not an obvious phonetic basis for this.

 Sadly, the amending legislation, the snappily-titled Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which the more excitable parts of the employment law community have taken to referring to as “CRATUPEAR”, does not provide for a name change for the TUPE Regulations themselves, or even a pronunciation guide. The confusion, therefore, looks set to continue…

Agency Worker Protection Limited

Moran v Ideal Cleaning Services

Agency workers are not employees, but over the years the distinction between the two has blurred. Agency workers with at least 12 weeks’ service are entitled (under the Agency Worker Regulations 2010) to the same basic employment rights and working conditions as if they had been recruited directly.

However, the Employment Appeal Tribunal (EAT) has raised many employment lawyers’ eyebrows and decided that workers on “indefinite” or “permanent” assignments are not covered by the Agency Workers Regulations and are therefore not entitled to employee-equivalent rights. This is a significant shift in the general understanding of the law.

Pay Up or Else…

February brings with it the introduction of substantial penalties for employers who do not pay their workers the National Minimum Wage (NMW). The crackdown could see the worst offenders being fined £20,000, rather than the previous maximum of £5,000.

Employers also face being named and shamed. The Government says that it is working with HM Revenue and Customs to investigate and prosecute employers who have seriously flouted their NMW responsibilities.

All the more reason to ensure that your business is fully NMW-compliant.

Restrictive Covenants

East England Schools v Palmer

The information age is making it harder for employers to justify the restrictions they try to put on ex-employees. Take information about clients, for example. How can an employer claim to be protecting its business interests by preventing an ex-employee from using information which is now often freely available via social media?

Happily for employers, the High Court has confirmed that they do still sometimes deserve protection.

Protected Disclosures – Whistle-Blowing

Norbrook Laboratories v Shaw

“protected disclosures” can alert employers to the fact that they may be breaching, or could at some later time breach, their legal duties.

They are made by employees who are concerned about issues including health and safety and criminal activity. To be classed as protected, these disclosures must contain information rather than just allegations. Employees who are dismissed for having made protected disclosures (or ‘blown the whistle’) have the right to claim automatically unfair dismissal, with uncapped compensation and no qualifying period of service (compared to the normal two years for unfair dismissal). It is however not always obvious when a protected disclosure is being made.

Pool for Comparison

Naeem v Ministry of Justice

Claims for indirect discrimination hinge on comparisons between the treatment of one group of people as against others. But the correct comparator is not always obvious, as Mr Naeem found out.

He was a Muslim prison chaplain employed by the Ministry of Justice (MOJ) since 2004. His pay scale was based on length of service. Before 2002, the MOJ only employed Christian chaplains. Mr Naeem argued that that put him and other Muslim chaplains at a disadvantage because they could only progress through the pay scale from 2002. He brought a claim for indirect discrimination.

And Finally….

HR Director taken Hostage

If you think being a HR professional is tough in the UK, take a moment to think about our colleagues over the channel.

Earlier this month, hundreds of employees at a Goodyear factory in Amiens, northern France, took the HR Director and another employee hostage in protest at the imminent closure of the factory. This is not, apparently, uncommon in France where, until a few years ago, agreements made between management and workers were enforceable in courts even when the manager agreed under duress.

Fortunately, it all ended well. The two hostages were freed a few days later after police intervened.

So next time a disciplinary meeting becomes a little heated, remember it cold be much worse…….

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