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Law for Business

Knowhow - guidance - precedents

11 SEP 2012

The latest TUPE and service provision change decision

This month hrlaw@trowers.com reports on the latest TUPE and service provision change decision, whether or not a breach of contract can be prevented, a decision which considers zero hours contracts and continuity of employment and cases on enforcing restrictive covenants, redundancy selection and compensation awards. In addition, hrlaw@towers.com reports on changes to pre-employment checks under the Protection of Freedoms Act 2012, the publication of new advice on redundancy handling by ACAS, and on the extension of the deadline for agreement on the reform on the Working Time Directive.

  • 1 Case Law
  • 1.1 Preventing a breach of contract

The Employment Appeal Tribunal (EAT) has held in the case of Assamoi v Spirit Pub Company (Services) Limited that, although an employer cannot cure a breach of trust and confidence, it can prevent a situation escalating into a breach of trust and confidence by apologising.

The employee in this case raised a grievance about how he was being treated by his immediate manager. His grievance was upheld by more senior managers who took steps to rectify the situation, however, the employee resigned and brought a claim for constructive dismissal. The EAT found that although the employee's immediate manager had behaved badly towards the employee, this did not, by itself, amount to a breach of the implied term of trust and confidence. The matter had been prevented by the actions of the more senior managers from escalating into a state of affairs that would have justified the employee leaving. A distinction was drawn between the prevention of matters escalating into a breach of the implied term of trust and confidence, and trying to cure a breach once it has already taken place. In the latter instance, the breach cannot be cured.

  • 1.2 TUPE, assignment and service provision changes

The EAT has held in the case of Edinburgh Home-Link Partnership and Others v City of Edinburgh Council and Others that the directors of a housing charity providing services to a local authority did not transfer under TUPE when the service was taken in-house. Although a service provision change had taken place, the directors carried out strategic roles in the transferor organisation and were concerned with the running and maintenance of the entity, rather than with the direct provision of the services to the local authority.

Edinburgh Home-Link Partnership (HL) provided outreach services and support to vulnerable people in relation to housing matters. The EAT held that although HL had no clients other than the Council between 2005 and 2009, it did not inevitably follow that all of HL's employees would be assigned to carrying out activities for the Council. The strategic duties of the directors were distinct from the actual provision of the services to the Council. The EAT held that it cannot be assumed that every employee carrying out work for the relevant client will be assigned to the "organised grouping" transferring. In order to fall within an "organised grouping of employees" when a service provision change takes place, employees will need to be dedicated to the provision of services to a client and not just form part of the transferor's infrastructure.

  • 1.3 TUPE and death in service benefits

The Pensions Ombudsman has held in a complaint by Mrs McCurdy against Rathlin Island Ferry Ltd that a transferee employer who does not establish a replacement death benefit arrangement following a TUPE transfer can be liable for the death benefit that would have been payable on the death of an active member of the transferor's scheme.

The Complainant's husband was a member of the Calmac Pension Fund. His employment transferred under TUPE to Rathlin Island Ferry Ltd on 1 July 2008 and he became a deferred member of the scheme. He died 18 days later. In December 2008, the scheme awarded Mrs McCurdy a lump-sum death benefit equal to Mr McCurdy's final pensionable salary (FPS) under its provisions for deferred members. If Mr McCurdy had died in service as an active member, the lump sum death benefit would have been four times his FPS. Rathlin only established a replacement death benefit arrangement some months after Mr McCurdy's death.

The Ombudsman held that Rathlin should have put a replacement pension arrangement in place before Mr McCurdy died in order to pay a lump-sum death benefit of four times his FPS, and directed Rathlin to pay that amount plus interest and damages for distress and inconvenience.

  • 1.4 Employment status and continuity of employment

The EAT has held in the case of Pulse Healthcare v Carewatch Care that when carers employed by a contractor were engaged under a zero hours contract they were employed under a global contract of employment, with continuity preserved throughout.

The carers were employed by Carewatch Care Services Limited, a company contracted to a Primary Care Trust to provide care for a severely disabled individual. When the contract was retendered and taken over by Pulse Healthcare (Pulse), the carers argued that they should transfer to Pulse by virtue of TUPE. The first point to be established was whether the carers were employees and whether they had continuous service. Although the carers were given a zero hours contract, which stated there was no obligation to provide work and that the carers were free to work for another employer, the Tribunal found that this did not reflect the true agreement between the parties. In practice they performed services, were obliged to carry out the work offered and had to do it personally. The EAT held that Carewatch was providing a critical care package "of the most challenging kind" and concluded that the Employment Judge was entitled to hold that the claimants' were employed by Carewatch under global contracts of employment with full continuity. The issue of their rights under TUPE was remitted to an Employment Tribunal for consideration.

  • 1.5 Fundamental breach of contract and honest mistake

The EAT has held in the case of Roberts v The Governing Body of Whitecross School that an employer can commit a fundamental breach of contract by intentionally failing to pay an employee the full amount of pay properly due, even if it has made an honest mistake as to how much pay is due.

The employee was off sick with stress and depression. During this time the school decided to pay only half pay, rather than full contractual sick pay, on the basis of a mistaken interpretation of the collective agreement covering sick pay. The school thought that it covered physical but not mental injuries. Although the Tribunal dismissed the employee's constructive dismissal claim, finding that whilst the school was in breach of contract by not paying full sick pay, it was not in fundamental breach. However, the EAT overturned the Tribunal's decision, concluding that a finding of a fundamental breach was inevitable on the facts. The school had acted on its view of a contract and had a "settled intention" not to pay the full contractual sick pay due. The case was remitted to a new Tribunal to determine if the employee was constructively dismissed in response to the breach. Meanwhile the EAT cast doubt on previous case law which has held that repudiation of a contract might not occur when a party is acting under a genuine but mistaken belief as to the terms of a contract.

  • 1.6 Refusal to accept reemployment and mitigation of loss

The EAT considered in the case of F & G Cleaners Limited v Saddington that there had been no failure to mitigate loss where an employee declined to accept re-employment in the same role on a self employed basis. However, the EAT noticed that there could be a failure to mitigate loss in circumstances where the loss of ability to bring an unfair dismissal claim was the only way in which the new terms were inferior.

A TUPE transfer took place and the new employer refused to accept that they employed the Claimants. They then offered them work on terms that included self employment and lower earnings. As it was not unreasonable of the employees to refuse this, it followed that there was no failure to mitigate. The EAT also reasoned that the duty to mitigate commenced after the dismissal rather than when the offers were made. The employees were dismissed by the offer of the new, inferior terms, which entitled them to resign and be dismissed by virtue of TUPE. As a result the offers were prior to the dismissal and a refusal to accept them could not be argued to be a failure to mitigate.

  • 1.7 Enforceability of non-solicitation restrictive covenant

The Mercantile Court has considered the enforceability of a six month non-solicitation restrictive covenant which sought to prevent a director from approaching anyone who was a customer at any point during the director's employment in the case of Safetynet Security Limited v Coppage & Another.

The court enforced the 6 month post termination restrictive covenant. It found that the covenant was appropriately drafted, giving the director's seniority and integral role within the organisation, and the size of the employer's client base. The case is a useful reminder that enforceability of a restrictive covenant turns not only on the drafting of the clause, but also on the context. If Safetynet had been a larger business and Mr Coppage had not been acquainted with all of its customers it is likely that the outcome would have been different.

  • 1.8 Redundancy selection, pool of one, and "range of reasonable responses"

The EAT has held in the case of Wrexham Golf Co Ltd v Ingham that the "range of reasonable responses" test applies to the decision to use a pool of one in a redundancy selection exercise.

The claimant, who was the employer's sole bar steward, was dismissed for redundancy and the tribunal held that the dismissal was unfair, noting that the issue of a selection pool had not been considered. The EAT held that the tribunal had failed to apply the "range of reasonable responses" test to whether it was reasonable for the employer to focus on the claimant alone as the person at risk of redundancy. It held that instead the tribunal should have asked whether it was reasonable for the employer not to have considered selection from a wider range of employees than just the claimant.

  • 1.9 Entitlement to work in UK and compensatory award

The EAT has held in the case of Kings Castle Church v Okukusie that an employment tribunal was not correct to award unfair dismissal compensation beyond the period that an employee was entitled to work in the UK.

The claimant had applied for permission from the UK Border Agency (UKBA) to live and work in the UK. This was granted until October 2009. In January 2010 he received a letter from UKBA refusing his application to remain in the UK indefinitely. In February he was dismissed. The dismissal was found to be unfair on the basis that his employer had acted automatically, without further investigation, on the information it had. Compensation was awarded to the date of dismissal and for future loss of another six months. However, it subsequently transpired that a letter dated 28 May 2010 from UKBA, which had not been included in the bundle, existed which stated that the claimant's appeal against the original decision was refused. The EAT criticised the tribunal for failing to carry out more thorough investigations and held that it had erred in awarding compensation based on earnings over the period he would not have been entitled to work. A loss of earnings award up to 10 May 2010 was substituted.

  • 1.10 Providing medical evidence

The EAT in the case of GCHQ v Bacchus has overturned an ET decision not to strike out the claimant's claim of disability discrimination and to proceed without expert psychiatric evidence on either side, after the Claimant failed to attend a psychiatrist appointment.

The ET had ordered the Claimant to attend the appointment so that GCHQ could have its own report but refused to strike out the case when the Claimant refused to do so and provided his own expert's report instead. The EAT overturned the tribunal's decision and decided that GCHQ needed its own expert evidence in order to prepare its case properly. The absence of that meant GCHQ was significantly disadvantaged, therefore the EAT ordered that unless the Claimant attended an appointment with the psychiatrist, his case would be struck out.

  • 1.11 ACAS Code uplifts apply only to employees

In the recent case of Local Government Yorkshire v Khan, the EAT has held that uplifts to compensation for failure to follow the ACAS Code can only apply to employees.

It was accepted at Tribunal that the Claimant, who had been on secondment to the Respondent at the time in question, was a worker and not an employee. The ET held that she had been dismissed after making a protected disclosure and awarded compensation for the detriment she had suffered, which was uplifted by 25% because the Respondent had not complied with ACAS Code. The Respondent argued that such an uplift explicitly applied only to "the employee". The EAT agreed and upheld the Respondent's appeal.

  • 1.12 Adjournments and overlapping procedures

In the case of Firouzian v Metroline Travel Limited, the EAT considered whether a pre-hearing review ought to be postponed while the Claimant's criminal trial was pending.

The Claimant, a bus driver charged with causing death by dangerous driving, brought a claim of disability discrimination. The Tribunal listed a pre-hearing review before the criminal trial to determine whether or not the Claimant was disabled for the purposes of the legislation. The Claimant asked for a postponement because of both his mental illness and the effect on the criminal trial. The EAT confirmed that a decision on whether to postpone a pre-hearing review was made at the Judge's discretion. If there had been a risk that the Claimant might incriminate himself or interfere with his right to silence by participating in a pre-hearing review, the EAT held it would have been appropriate to postpone it. The pre-hearing review was on a separate matter though and was only to determine disability so there would be no need for the Claimant to give extensive evidence. The EAT held there was no reason to interfere with the Judge's decision.

  • 1.13 Maladministration of ill health early retirement benefit

The Pensions Ombudsman has upheld a complaint against the West Yorkshire Police (WYP) as an employer under the Local Government Pension Scheme (LGPS) in respect of an ill-health early retirement pension payable under the previous regulations governing the LGPS.

The member, Mrs Cooper was a traffic warden for WYP and went on long term sick leave in January 2003. In June 2006, she applied for an early retirement ill-health pension. To qualify, WYP had to conclude that she was permanently incapable of her former employment and an independent registered medical practitioner was required to certify her incapacity.

In 2007, WYP rejected the application, relying on a medical certificate obtained in 2005 for a previous application. The member appealed and then made a complaint to the Ombudsman. The Ombudsman only considered only events after 21 June 2006 as she was actively engaged in seeking the early release of her deferred benefits. WYP made three decisions and in every instance it used the wrong criteria, and had misrepresented the medical examiner's opinion. This amounted to improper decisions and maladministration and WYP was ordered to backdate benefits to 21 June 2006 and to pay £600 to the member for distress and inconvenience.

  • 1.14 Representations about pensionable payments

The Ombudsman has partially upheld a complaint against Calder Industrial Materials Limited by Mr Harris and Mr Hancock but has denied a complaint against the trustees of the scheme.

The Employer and the Complainants wrongly presumed in negotiations over an incentive package that daily £20 "subsistence payments" were pensionable under the scheme rules, and this was confirmed by the Employer's personnel officer. The Complainants were made redundant and later told subsistence payments were not pensionable earnings. The Ombudsman had to consider whether the Employer had made a binding agreement to make the payments pensionable.

The Ombudsman found that the Employer misrepresented that the payments were indeed pensionable based on its own erroneous presumption and this amounted to maladministration but there was no binding agreement to treat the payments as pensionable. The overall offer did not include a "discrete or distinct promise" to do so as both sides at the meeting presumed that the payments were pensionable. A contractual offer could only have been made if it was understood that the subsistence payments would not otherwise be pensionable.

  • 1.15 Reference to RPI-based revaluation in LGPS was not maladministration

The Deputy Ombudsman dismissed a complaint by Mr Frost against Wolverhampton City Council and West Midlands Police Authority in relation to the LGPS.

The Complainant was a deferred member of the LGPS having joined in 1993 and transferred in benefits from another scheme. In 1993, he received several LGPS leaflets which stated that pensions in payment "are increased ... in line with rises in the Retail Prices Index", and referred to "preserved pensions ... increased in line with the Retail Prices Index".

The Chancellor of the Exchequer announced that with effect from April 2011 indexation of pensions in payment and revaluation of deferred pensions would be calculated by reference to the Consumer Prices Index (CPI) instead of the Retail Prices Index (RPI). The LGPS was obliged in law to use CPI instead of RPI following the Government's decision to alter the basis on which public service pensions were adjusted for inflation.

The Complainant complained that the uprating of his benefits based on RPI was a specific benefit which he had been misled about, so he had transferred benefits into the LGPS in reliance on incorrect information. The Deputy Ombudsman dismissed the complaint and held that it had been reasonable for the wording to describe current practice at the time, without a full statement of the true position. The statements did not constitute a clear, unambiguous promise or assurance, devoid of relevant qualification, therefore this was not maladministration.

  • 2 News
  • 2.1 ACAS publishes new advice on redundancy handling

ACAS has published advice to help employers understand the role of employees who break news of redundancies to staff, known as "redundancy envoys". The advice is included in a new section in its redundancy handling booklet.

The advice includes the importance of selecting the right person for the role of redundancy envoy; how employers should support redundancy envoys and why the role involves more than having a difficult conversation.

  • 2.2 Firms to shed jobs unless recovery takes hold soon

The Independent reports on a survey for the Chartered Institute of Personnel and Development (CIPD) which has found that a third of firms are overstaffed and almost two thirds are planning to shed staff over the coming year if the wider economy fails to pick up.

The survey of 1000 employers found that 31% have maintained staff levels higher than needed to meet present levels of demand over the past year. A majority said that they have done so to maintain the skills base within their organisations, while 62% said that they would begin laying off these excess staff if demand did not improve over the next 12 months. The results of the survey help to explain why national employment levels have remained relatively strong this year despite the economy's return to recession since last Autumn. The number of jobless fell by 65,000 in the 3 months to May, with the official unemployment rate using 28.1%. The CIPD survey suggests that the employment boost has been based on expectations of new work by-plans, rather than actual fresh orders or new customers, and that the picture is set to deteriorate rapidly barring a pick up in consumer demand.

  • 2.3 Deadline for agreement on reform of Working Time Directive extended

The European Commission has agreed to extend the period for the European social partners to agree on reform for the EU Working Time Directive to 31 December 2012. The negotiations began in early December 2011 with a view to updating EU Working Time rules to reflect "profound changes in the world of work" and "better meet the needs of employers and workers in the 21st century".

Article 154 of the Treaty on the Functioning of the EU requires the Commission to consult the European social partners before it proposes any changes to EU Social Legislation. The social partners are allowed 9 months for negotiations, but this period can be extended if there is unanimous agreement between employer and worker groups and the Commission. The Commission agreed to the social partners' joint proposal for an extension on the basis that their negotiations are making progress.

If the social partners reach an agreement they can ask for it to be implemented as a Directive. The Commission would then present the agreement as a Directive to the EU's Council of Ministers. The Council can then either adopt the Directive, or reject it, by qualified majority, but may not amend it. If the social partners fail to reach an agreement, the Commission will make a legislative proposal to amend the Directive based on its previous consultation and impact assessment work.

  • 2.4 Managing redundancy for pregnant women

ACAS, in association with the Equality and Human Rights Commission, has published a Good Practice Guide on 'Managing redundancy for pregnant employees or those on maternity leave'. The Guide includes a checklist for managing the process fairly, a section designed to help people understand the law surrounding pregnancy and maternity protection, and guidance on how to consult employees on maternity leave.

  • 2.5 ICSA updates guidance on induction of Directors

The Institute of Chartered Secretaries and Administrators (ICSA) has published an updated version of its guidance note on the induction of directors, to advise organisations on the topics and documents they should consider when designing an induction programme for newly appointed directors. The guidance emphasises the three aims of the induction process which are to build an understanding of the nature of the Company, its business and the markets in which it operates; the link with the Company's people, and an understanding of the Company's main relationships.

The guidance highlights two further aims of the induction process as being to ensure an understanding of the role of the Director and the framework within which the Board operates. The guidance includes a checklist of topics and documents to consider covering in an induction programme, including for a Board Committee induction where the Director will be joining a Committee.

  • 2.6 The Pensions Regulator updates auto-enrolment guidance

The Pensions Regulator has released updated guidance on auto-enrolment in light of new guidance from the DWP (see HR Law August 2012) on certifying defined benefit and hybrid schemes and due to new regulations which changed staging dates for certain employers and clarified who are qualifying persons for the purpose of cross border pension schemes.

The updated guidance expands on certain issues which were previously unclear. It sets out what is meant by a 'small employer' for the purposes of modifying their staging date. Further detail is given on how TUPE transfers interact with auto-enrolment and transferee employers are reminded that both auto-enrolment and TUPE must be complied with so employers should make an assessment of the auto-enrolment status of transferring employees at the point of transfer.

The guidance now reflects the quality requirements for the certification of DC and hybrid schemes as set out by the DWP. For the purpose of certifying that a scheme meets the alternative requirements, "earnings" has the same meaning as in section 13(3) of the Pensions Act 2008. The three tiers in the alternative requirements set out a minimum contribution rate and the employer should certify the scheme with respect to the most relevant tier, even if the scheme requires a higher rate.

There are also changes for salary sacrifice in that employers may now choose to put in place a salary sacrifice arrangement before or after the jobholder's automatic enrolment date (previously the salary sacrifice had to be in place before the auto enrolment date).

  • 2.7 Employer requirement to offer stakeholder pension likely to be abolished on 1 October 2012

The DWP has confirmed that it intends to abolish the obligation on employers to designate a stakeholder pension scheme and this is likely to occur on 1 October 2012 (date of entry into force of auto-enrolment). Currently employers with five or more employees are obliged to designate and facilitate access to a stakeholder pension. This requirement will be superseded by then entry into force of the requirement to automatically enrol employees into pension schemes. However, as some employers' staging dates are not until 1 February 2018, this will mean that some employers have no obligation to provide access to a pension scheme for its' employees for 5 years.

  • 3 Legislation
  • 3.1 Pre-employment checks and the Protection of Freedoms Act 2012

Various changes to employers' pre-employment checks will be implemented by the Protection of Freedoms Act 2012 (PFA 2012). The PFA 2012 will implement various changes to the current CRB regime as of 10 September. These include the following:

  • Only the applicant will be sent a CRB certificate, which will give them the opportunity to challenge its content before it is received by a third party;
  • CRB certificates will only be issued where an applicant is 16 or over;
  • Certificates will be continuously updated so an applicant for a CRB certificate will have to subscribe to updating arrangements when they apply for a certificate and re-subscribe on an annual basis; and
  • The police will no longer be under a duty to disclose sensitive (non-conviction) information, though it will remain open to them to pass such information to a potential employer where they consider it to be justified and proportionate.

Meanwhile, there will be changes to the Safeguarding Vulnerable Groups Act 2006, also as of 10 September, as follows:

  • A "scaling back" of the definition of "regulated activity" with a focus "on work which involved close and unsupervised contact with vulnerable groups including children" rather than on the setting in which the activity is required;
  • The concept of "controlled activity" (an activity which is not "regulated activity", but which is carried out frequently and gives the individual the opportunity to have contact with children/vulnerable adults or access to their records) will disappear;
  • There will be a duty on regulated activity providers to find out whether a person is barred before permitting them to engage in regulated activity; and
  • There will be a reactive notification system where interested parties may apply, on payment of a fee, to the Secretary of State for information about whether a person is barred from regulated activity.

For further information please refer to our recent bulletin 'Regulated activity: an end to the confusion'.

  • 3.2 Amendments to LGPS regulations

The Local Government Pension Scheme (Miscellaneous) Regulations 2012 have been laid before Parliament and will come into force on 1 October 2012. The Regulations introduce a number of changes to the admission agreement procedure and will apply to admission agreements which are entered into after 1 October 2012. One of the key changes is that the contractor, rather than the administering authority, must now carry out the risk assessment on the requirement for a bond or indemnity "to the satisfaction of the administering authority".

In addition, the regulations introduce amendments which address the introduction of auto-enrolment from 1 October 2012, to enable LGPS scheme employers and admission bodies to comply with the auto enrolment legislative requirements. The current position, where employees of admission bodies need to apply to join the LGPS will change, so that all employees "designated" by an admission body will become an active member from the date of designation.


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