What did we get up to last month?
We have been involved in our first ACAS Early Conciliations since the process was introduced on 6 April 2014. So far, so good – it has been useful to be able to involve an impartial third party in the disputes at an early stage and to test the water for settlement before incurring costs in drafting Tribunal documentation. I still believe that the complicated aspect will be the impact on time limits for bringing claims if conciliation doesn’t work, but time will tell if I am being unduly negative about this!
We were interested to read this article about new rules being introduced in France to restrict employees in certain sectors from being required to read and send emails outside of office hours.
Many employees these days have access to their emails 24 hours a day and I’m sure that many feel as though they ought to respond to emails as soon as they have read them, even if this happens to be out of office hours. This can clearly have a negative impact on an employee’s work-life balance and I wonder if we can expect to see a similar code of practice being introduced at some future point to encourage all employees to benefit from the breaks from work that they are entitled to under the Working Time Regulations.
We also read that 400 equal pay test cases have been brought against Asda by women who claim that they were paid less in their in-store roles than men were in equivalent roles in the supermarket’s distribution centres. If the claims are successful, the potential impact on other similar employments will be significant. We will of course keep you posted.
Any plans for this month?
Our annual employment conference will take place at our Peterborough office on the morning of 24 June 2014 and will feature presentations from Origin Workplace Solutions on Pensions Auto-Enrolment, GreenStones Accountants and us (obviously!). It is free to attend – to book your place, email us here. More information will be available on our website soon.
Katharine and I are also hosting a CIPD event on 10 June 2014, again at our Peterborough office, and will cover the topic of performance management. The event starts with registration at 5.15pm and we will wrap up at 6.45pm leaving time for some questions and discussion. Keep your eye on our Twitter page on how to book a place.
There has been a lot of demand for our next HR Breakfast Club workshops on 3 and 6 June 2014 – both sessions are now fully booked.
Any new cases to be aware of?
In Jackson Lloyd v Mears Group plc the EAT has agreed with the Tribunal’s judgment that a transfer of management control and employees from one company to another following a share sale gave rise to a TUPE transfer. Jackson Lloyd Ltd got into financial difficulties in 2010. Its shares were bought by Mears Ltd, a subsidiary of Mears Group plc. Immediately following the share purchase:
- Jackson Lloyd’s directors resigned and were replaced by Mears Group nominees
- Jackson Lloyd’s employees were informed that they would move over to Mears Group as part of an integration process
- Staff from Mears Group based themselves at Jackson Lloyd’s offices to monitor working practices and oversee integration
- A consultant (who reported to Mears Group) was engaged to advise on the turnaround of Jackson Lloyd’s business and had been instructed to do this based on Mears Group’s systems, policies, procedures and methods
The Tribunal held that based on those facts, there had been a transfer of Jackson Lloyd’s business undertaking to Mears Group at the same time that its shareholding was bought by Mears Ltd. Mears Group had imposed significant changes on Jackson Lloyd’s business and it was clear that control of the business was exercised by Mears Group. Jackson Lloyd had essentially become just a trading name, rather than an entity in its own right. The EAT agreed with this analysis on appeal.
Although the general rule remains that TUPE will not apply to share sales, it remains crucial to consider the bigger picture and assess the changes that will be implemented as a result of the share sale. In this case, the failure of the parties to identify that a TUPE transfer would be taking place resulted in a breach of their respective obligations to both each other and 450 employees.
The EAT confirmed in Law v Frith Accountants that Tribunals must consider whether compensation awarded in a constructive unfair dismissal claim should be reduced as a result of any contributory conduct on the part of the claimant. In this case, Mrs Law resigned after she discovered that Mr Frith had discussed concerns that he had about Mrs Law, with her son.
Mrs Law’s performance had not been up to scratch and when Mr Frith had tried to raise the issues with her, she refused to accept that she had made errors and appeared to be rambling and incoherent. Rather than follow up directly with Mrs Law, Mr Frith spoke to her son about these issues.
The Tribunal upheld that Mrs Law’s claim for constructive unfair dismissal and concluded that although Mr Frith had been acting in good faith and out of concern for Mrs Law, he had breached the implied term of trust and confidence when he discussed the situation with Mrs Law’s son without her knowledge or permission.
The Tribunal declined to make any reduction to the compensatory award based on Mrs Law’s contribution (which was argued to be her refusal to accept her mistakes and her incoherent conversation) and the EAT found on the facts that the Tribunal was entitled to reach this decision.