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21 April 2016 0 Comments Posted in Employment, Opinion

Service provision changes under TUPE do not require all activities to transfer

Posted by , Partner

In Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and others the EAT has held that there is no requirement for the whole of a service to transfer in order to trigger the service provision change provisions of TUPE. It is possible for there to be a TUPE transfer where only part of the service being carried out by the transferor is subsequently performed by the transferee. The fact that TUPE makes express provision for a business transfer where there is only part of an undertaking, service or activity transferring, should not be interpreted to mean that the lack of such wording relating to service provision changes means that part of a service or activity cannot transfer. The service provision change is a domestic provision which does not depend on a finding that there is a discrete economic entity with functional autonomy. Therefore a different approach should be adopted to its interpretation. Case law has evolved to require a straightforward and common sense reading of the service provision change and there is nothing in TUPE that expressly requires the activities to constitute all of those carried out by the outgoing contractor.

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Refusal to extend PHI cover not discriminatory

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In Smith v Gartner UK Limited the EAT has upheld an Employment Tribunal decision to strike out an employee’s claim for unlawful deduction from wages and direct age discrimination. When the employee reached 60 years old the employer ended payments under the PHI scheme because these were the terms of the policy when she first claimed the benefit in 2003. The employer had introduced a new scheme in 2007 which covered eligible employees up to age of 65 but the Claimant was not eligible under the terms of that scheme as she was not working immediately before putting in the claim. The EAT considered that the Tribunal was correct to find that the contractual documentation only required the employer to provide a PHI scheme and not to make further payments to the employee if payments were not made by the insurer. A decision not to cover the Claimant beyond 60 was the insurer’s decision and not the employer’s and there was therefore no direct age discrimination by the employer.

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Protected disclosure and public interest

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In Morgan v Royal Mencap Society the EAT has overturned an Employment Tribunal decision to strike out the employee’s claims relating to protected disclosures. The Claimant claimed that complaints about cramped working conditions posed a risk to her health and safety and as such were protected disclosures. The Tribunal struck out these claims at a Preliminary Hearing because there was no evidence from the Claimant that she believed that the disclosure was in the public interest. Therefore the Tribunal held that the claim must fail.

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PILON payment taxable as termination payment

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An interesting case has come before the First Tier Tribunal; that of Michael Philips v HMRC. It concerned the correct taxation of a payment in lieu of notice in a Settlement Agreement. There was no contractual right to a PILON clause and it was not made to compromise an amicable unforced termination. Instead, the First Tier Tribunal found that the payment was taxable as a termination payment rather than as earnings for employment, and was compensation for the release of the tax payer’s contractual rights to notice. Applying the case of Henley v Murray (Inspector of Taxes) it considered that this was a damages payment and therefore fell to be taxed under Section 401 of the Income Tax (Earnings and Pensions) Act 2003 as a termination payment.

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Caution against raising written concerns to employee on sick leave

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In a case which sounds a cautionary note to employers about writing to employees on sick leave, the case of Private Medicine Intermediaries Limited and others v Hodkinson is an EAT decision upholding the decision of the Employment Tribunal that the employer writing to the employee while she was on sick leave for work related stress, raising concerns about her employment which were neither serious nor urgent, was in repudiatory breach of the implied term of mutual trust and confidence and the employee had been constructively dismissed.

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£70 million negligence claim caught by Settlement Agreement

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In Khanty-Mansiysk Recoveries Limited v Forsters LLP the Commercial Court, in the trial of a preliminary issue, has held that a negligence claim worth more than £70 million against the Defendant firm of solicitors was captured by the terms of a Settlement Agreement in relation to a dispute connected to unpaid invoices. On its proper construction, the Court held that the Settlement Agreement had much wider scope than the particular dispute which existed between the parties when it was executed.

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Salary sacrifice childcare vouchers – not discriminatory to suspend

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In Peninsula Business Services Limited v Donaldson an Employment Tribunal decided that it was discriminatory for an employer to make it a condition of entry into its childcare voucher scheme that the vouchers, provided through salary sacrifice, would be suspended during maternity leave.

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Guidance on discrimination arising in consequence of disability

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In Pnaiser v NHS England and another the EAT has given guidance on the correct approach to a Section 15 Equality Act claim for discrimination arising in consequence of a disability. It highlights that the duty to make reasonable adjustments is only one part of the protection given to disabled employees. The Claimant’s disability required her to take a significant amount of sickness absence from her post at the Coventry Council. When she was made redundant she was offered a position with NHS England subject to satisfactory references. However the offer was withdrawn when her former, and potential new, manager spoke, during which her sickness absence was highlighted. She brought a claim under Section 15 for discrimination arising in consequence of disability i.e. that the mention of her sickness absence, which was due to a disability, was the reason why the offer was withdrawn.

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13 April 2016 0 Comments Posted in Opinion

Charities fear apprenticeship levy laws could undermine public confidence

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There will be no exemption for charities from the Government’s apprenticeship levy scheme, it was revealed last week.

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5 April 2016 0 Comments Posted in Employment, Opinion

Day to day activities in disability discrimination

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In Banaszczyk v Booker the EAT has overturned a Tribunal decision that manual lifting of items weighing up to 25 kilograms at work was not a normal day to day activity.

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Temporary cessation of work did not preclude TUPE transfer or service provision change

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In Mustafa and another v Trek Highways Services Limited and others, the EAT has allowed an appeal against a Tribunal’s decision that there was no business transfer or service provision change under TUPE where a subcontractor’s employees had been laid off as a result of a commercial dispute with the main contractor (a highway maintenance company) shortly before the main contract expired and the services transferred to a new contractor. The subcontract terminated by consent 12 days before the new contract was due to start and both the main contractor and the new one refused to take on the subcontractor’s employees on the grounds that TUPE did not apply. This decision has been overturned and the case remitted back to the Employment Tribunal.

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Summary dismissal for disclosing confidential information was unfair

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In Stimpson v CitiBank the Employment Tribunal has held that the employer’s decision to summarily dismiss a foreign exchange trader for disclosing confidential client information to traders from different banks in an online chat room was unfair and wrongful.

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