June 27, 2014
by Jeffrey
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The Information Commissioner’s Office has this month published updated guidance on the Disclosure of Employee Information under TUPE and this can be viewed here:
ICO Guidance on the Disclosure of Employee Information under TUPE 2014
June 22, 2014
by Jeffrey
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For the ACAS Guidance on Handling TUPE Transfers 2014 Click here.
June 2, 2014
by Jeffrey
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Although only an ET decision this case concerns a rare award made under Reg 12 – where a transferor fails to provide a transferee with Employee Liability Information (‘ELI’) that it is required to do under Reg 11.
The Facts
The Claimants were engaged by R1 ‘Clapham’ and R3 ‘Streatham’ respectively and provided counselling services to a PCT (the client). Prior to the transfer the Claimants were generally regarded as self employed. The PCT decided to reconfigure services and Awareness won the contract. ELI was provided to Awareness in respect of counsellors who employees but not in respect of the claimants who were regarded as being self employed. The claimants’ employment status was challenged in ET proceedings and they successfully claimed that were employees. The claimants then succeeded with unfair dismissal claims and claims for protective awards for which Awareness as transferee was liable. Awareness sought to recover this liability from Clapham and Streatham under Reg 12. (Streatham was insolvent so the claim proceeded only against Clapham.) The transferee has three months to bring a Reg 12 claim and Awareness were three weeks late in doing.
The judgment of the ET
The ET first held that it had not been reasonably practicable for Awareness to have brought the claim in time as they only became aware that the claimants were challenging their employment status when the ET1s were served (paras 87 to 89).
The ET then held that Clapham was liable to Awareness for all of the unfair dismissal awards that Awareness were liable to pay the claimants because had the ELI been provided then the claimants would not have been unfairly dismissed but would have transferred to Awareness. (see paras 87-93)
Awareness also claimed from Clapham an indemnity in respect of its joint and several liability for the protective award under Reg 15 and payment of its costs. Neither of these claims were allowed. The ET held that an indemnity for the protective award was not the sort of loss envisaged by Reg 12 and that the ET Rules of Procedure applied in respect of costs and these could not be circumvented by a claim under Reg 12. (see paras 94-101)
May 19, 2014
by Jeffrey
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The Issue
Under the recently amended regulations an ETO reason ‘entailing changes in the workforce’ has been expanded by Reg 7(3) so that it includes a change to the place of work. This is a statutory overruling of the principle, that, for there to be an ETO reason, there must be changes in the number of the workforce or changes in the job functions, that was established in Berriman v Delabole Slate Ltd [1985] ICR 546.
This case concerns an unsuccessful attempt to overturn the Berriman principle that still applies in respect of cases under the pre January 2014 Regulations.
There are also some interesting obiter observations of Slade J in the Appeal which will are likely to be revisited in time (see below).
The Facts
Barnet LB decided to outsource its parking operations. The contract was awarded NSL. The claimants were employed in the back office functions of the parking services. NSL intended to operate part those back office functions from Croydon and to sub contract part of those functions, the payment processing services, to RRD. RRD intended to operate the sub-contracted services from Lansing in West Sussex. None of the Claimants accepted offers to be employed in these locations and were dismissed on the grounds of redundancy on 31 May 2012. The Employment Tribunal held the dismissals were simply because of a change on the place of work and although the dismissals were for an ETO reason this was not one entailing a change in the workforce and they were therefore automatically unfair.
The EAT decision
NSL and RRD appealed on the following grounds: (i) Berriman and other cases upholding the Berriman principle did not concern a change to the place of work but were concerned with change to terms and conditions and were explicable on this basis. (ii) If the effect of Berriman was to prevent an ETO reason from including a change in the workplace, it was contrary to EU law on the basis that the CJEU in Alemo-Herron recognised that the transferee’s freedom to conduct business was a relevant consideration when applying the provisions of the Acquired Rights Directive.
The EAT held, that the decision in Alemo Herron does not alter earlier European jurisprudence on the mandatory nature of the obligations under the Acquired Rights Directive. Further that where a dismissal is simply because of a change in the job location this could not amount to a ‘change in the workforce’ unless clear words were used as they have been by the amendment to Reg 7. For this reason the appeal was dismissed.
Comment
Perhaps the most interesting feature of this case is not the result but what Slade J had to say in her reasoning and obiter observations.
First, she made the point, note above, that the decision in Alemo-Herron in which the CJEU appeared to introduce the possibility of the transferee’s business interests being relevant to the application of the Directive, does not affect its mandatory application. Secondly, she gave a reasonable hint (see paragraph 40) that the amendment to Reg 7(2) may not be compatible with the Directive (Art 4). Thirdly, she restated the point that although case law has focussed on job numbers and functions, changes to the workforce go wider than this and could include, for example, a requirement that the workforce have additional skills or qualifications needed even if the jobs they perform remain the same. This could also include changes in techniques requiring additional skills.
May 12, 2014
by Jeffrey
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A slightly belated update to the amended regulations. With effect from the 20 April 2014 a new Regulation 16A was added by Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Employment) (No. 2) Order 2014, Reg 2(4). This deals with compulsory ACAS conciliation in cases to which the TUPE Regulations apply.
The addition has effect subject to transitional provision specified Reg 3 of the Order which provides:
“Regulation 2 has effect in any case where the worker concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 on or after 20th April 2014.”
May 1, 2014
by Jeffrey
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For any TUPE transfer taking place on or after today the time period by which the transferor is to provide the information required under Reg 11 increases from 14 to 28 days.
April 23, 2014
by Jeffrey
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In this case the employees sought to bring a direct claim under Reg 15(1)(d) against the transferee for what they said was a breach of Reg 13(4). This requires the transferee to give such information as will enable the transferor to comply with its Reg 13(2)(d) duty – i.e. to comply with the requirement to give employees information about the measures that the transferor envisages the transferee will take after the transfer.
Reg 13(4) provides: (4) The transferee shall give the transferor such information at such a time as will enable the transferor to perform the duty imposed on him by virtue of paragraph (2)(d).
Reg 15(1)(d): (1) Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an employment tribunal on that ground—(d) in any other case, by any of his employees who are affected employees.
The EAT Judgment
Slade J held that this ambitious claim failed for the following reasons:
Reg 13 sets out the duties on employers to inform and consult those employees who are their employees at the time. Reg 15 provides the mechanism for making a complaint it does not impose the obligation.
Reg 13(4) does not impose an obligation on any employer towards his employees it simply requires the transferee to give the the transferor the required information. This obligation is to be performed before the transfer to enable the transferor to give the required information to the employee representatives. The entitlement to be provided with the information is that of the transferor not the employee. Reg 15 does not confer any additional right on which a complaint can be found a complaint. Furthermore it is the employee’s status at the date of the non compliance which dictates the entitlement to bring a claim.
The fact that employees subsequently transferred did not given them any right to bring a claim against the transferee for a failure to provide information to the transferor. Even if they could have brought a claim it could only be a claim against the transferor as they were the employees of the transferor at the date of non compliance.
An order for compensation against a transferee will only be made (under Reg 15(8)(b)) if the employee establishes that the transferor is in breach of its Reg 13(2) and the transferor, in turn, shows (pursuant to Reg 15(5)) that it was not reasonably practicable for it to perform their duty because the transferee did not provide the information as required under Reg 13(4).
March 31, 2014
by Jeffrey
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This case is concerned with Reg 3(1)(b)(ii) and whether the activities carried on before and after transfer are fundamentally or essentially the same. The interesting feature of the case is that the manner of providing the services after the transfer was radically different from the way in which they were carried out before the transfer.
The Facts
Ribble manufacture cardboard. In 2008 Ribble entered a contract with McCarthy, a haulage company, to deliver the cardboard to its customers. McCarthy allocated 15 vehicles to the contract and allocated HGV drivers who would operate from the Ribble premises. McCarthy also engaged a transport manager and 4 shunters who moved trailers about the Ribble site and assisted with loading and unloading. McCarthy lost the contract in September 2011 and the Appellant (‘Qlog’) took it over. Qlog were not, however, a transport company. They owned no haulage vehicles and employed no drivers, they simply act as middlemen between customers and hauliers. In this case they contended they were not providing haulage services but subcontracting the service to haulage companies who would bid for each specific delivery. Qlog accepted that the shunters and transport manager would transfer but it argued that the services it provided were fundamentally and essentially different from those provided by McCarthy and so the drivers would not transfer. The contract, executed after the transfer but dated before it stated that Ribble was transferring the provision of part of its transportation, delivery and distribution services from McCarthy to Qlog. Other contractual provisions made it clear that Qlog was engaging hauliers either on its own account or as sub contractors and that it had contractual responsibility for performing the services. Further property in Ribble’s goods passed to Qlog when it took on a particular delivery.
The ET Judgment
The ET recognised the business of Qlog was very different from McCarthy, however, the intention of Ribble was materially the same before and after the transfer. It wanted the other contracting party to be responsible for the transportation, delivery and distribution services of its products.
The EAT Judgment
Qlog sought to argue that the ET had failed to properly identify the ‘activities’ undertaking by it after the transfer and to recognise that these were fundamentally different from those performed by McCarthy. The appeal was dismissed. The ET had identified the key issue as the identification of the activates carried out before the transfer and those that were carried out by Qlog after the transfer. The ET had recognised there was a different mode of carrying out those activities but was entitled to have regard to what was set out in the contractual documentation when reaching the conclusion that the activities for which Qlog was responsible for were fundamentally the same. The issue of whether activities were the same before and after the transfer was a matter of fact for the ET to determine.
Comment
SPC cases can be won or lost on the defining of the activities before and after transfer. In this case by Qlog would probably have avoided liability if it had entered into a different contractual arrangement with Ribble which identified it as an agent or broker rather than the party responsible for delivering the service after the transfer.
March 21, 2014
by Jeffrey
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This case concerns the starting point for making a protective award under s. 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and compensation under Reg 15 of TUPE.
The Facts
The Council engaged in both redundancy and TUPE consultation exercises. It provided some information as required under s. 188 of the 1992 Act and Reg 13 but did not provide agency worker information as required under Reg 13(2A). The ET recognised that the starting point of the maximum award should be reserved for the cases where there had been no consultation, however, its reasoning was then:
We also accept that Susie Radin indicates that we start with a maximum only where there is no consultation and that cannot be said to be the position in this case. Having said that we are not quite sure where we should start if we do not start with the maximum and work down. It was not put to us by either of the Respondents’ representatives that there was a better place to start and given that in our view this is a relatively serious failure we do indeed start with the maximum.”
In the absence of guidance the ET therefore started at the maximum award and worked down. It held that the information was relatively easy to produce, that the union had asked for the information, and that it was required for consultation. It regarded the failure as relatively serious and made awards of 40 and 50 days pay in respect of the failure to comply with Reg 13(2A).
The EAT Judgment
The EAT held that the tribunal was in error. In Susie Radin it was held that the maximum award should be reserved for cases where there had been no consultation. Further, in Todd v Strain § 29 it was held that where there had been some compliance ETs should not mechanically start at the maximum award and work down. The EAT remitted the case back to the ET but in doing so did not provide any further guidance.
Comment
A breach of Reg 13 will encompass cases where there has been a breach of the most technical nature to cases of no compliance at all. The difficulty this ET had was where to start on the scale where there had been some compliance. The EAT did not, regrettably offer it much assistance when remitting back.
March 18, 2014
by Jeffrey
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This case raises two issues:
(i) The approach to the issue of intention in Reg 3(3)(a)(ii): “the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration”
(ii) Whether, when an employee is excluded from working with a particular client, she is nevertheless assigned to the organised group of employees undertaking that work when that work is subject to an SPC (Reg 4(1))?
The Facts
The 6 employees were support workers engaged in caring for a person, X, who had severe learning difficulties. The client was North Somerset Council. Allied provided the care and employed the employees until 28 February 2012 when it ceased to do so. All the employees apart from T provided the care. However T had been suspended for some time before that date. Prestige took over the contract from 1 March but refused to employ the employees. Matters were complicated because prior to Allied terminating its contract there had developed a strained relationship between X, X’s family and the support workers and a serious incident led to Allied terminating the contract. The Council intended to apply to the Court of Protection for permission to transfer X to new accommodation in a town further away from X’s family. Allied maintained there was an SPC to which TUPE applied. Prestige maintained there was not.
Following the termination of the contract with Allied, Prestige were engaged to cover the care on ‘an interim basis’ until the Court of protection hearing which was expected to take place in about 4 weeks. Matters did not proceed as expected and the earliest hearing for the Court of Protection was mid July 2012. By the date of the PHR in December 2012 the application for the Court of Protection had been withdrawn. Meanwhile T had gone through a disciplinary process and in early 2012 was able to return to work but the Council made a specific request to Allied that she not be placed with X.
The ET judgment
On issue (i): The EJ held that the whilst at the date of the transfer the Council “wished and hoped” the task would be of a short term duration they had no control over the length of time it would take and no certainty of the outcome if there was a Court of Protection hearing. There was no evidence that the Council had obtained legal opinion as to the outcome of the application before the Court of Protection or the likely length of time it would take. the Council therefore did not hold the requisite intention.
On issue (ii): the issue was a contractual one. As T was still employed by Allied in a role that required her to provide support to X and her contract had not been terminated in light of the Council’s request she remained to the group of employees undertaking that work at the date of transfer.
The EAT judgment
On issue (i): The EAT held that an “intention” is more than merely to contemplate. An “intention” is directed to an objective which is a possibility. By contrast a person may hope for or desire something which is unachievable. It was not necessary for the purpose of determining the appeal to have a fully worked definition of “intends” within Regulation 3 of TUPE. All that is necessary is to decide whether the EJ erred in holding that a hope or a wish is not an intention within the meaning of TUPE Reg 3(3)(a)(ii). A “hope” or “wish” was not an intention and as that finding of fact had not been challenged the appeal could not succeed.
On issue (ii) ; The EAT held that the EJ had erred in describing the issue as essentially contractual one. The question that had to be asked is: Where would the employee be required to work immediately before the transfer? Whilst contract plays a part in answering that question in some case the contractual place of work is superseded by a prohibition on working there. in reaching this conclusion Mrs Justice Slade applied United Guarding Services Ltd v St James’s Security Ltd [2004] EAT.
Comment
(i) We now know that a hope or wish will probably not mount to an intention that a task will be of a short term duration but we do not yet have clear guidance on what will amount to an intention for the purpose of Reg 3(3)(a)(ii).
(ii) The EAT judgment on issue (ii) was entirely correct. If an employee is prohibited from undertaking work with the organised group immediately before the transfer and that prohibition is permanent then it is difficult to see how she can be regarded as being assigned to it.