TSP Connect Employment law Update Seminar 22 March 2012
-
Upload
nick-hobden -
Category
Documents
-
view
223 -
download
2
description
Transcript of TSP Connect Employment law Update Seminar 22 March 2012
![Page 1: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/1.jpg)
Nick HobdenPartnerE: [email protected]: 01322 623700
James WillisSenior AssociateE: [email protected]: 01322 422540
22 March 2012
© Thomson Snell & Passmore 2012
TSP Connect SeminarEmployment law update
![Page 3: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/3.jpg)
3
Our subjects today
• Redundancy – pooling, alternative roles and collective consultation
• TUPE Service Provision Changes
• Government proposals on executive pay
• Unfair Dismissal
• Confidential information post-termination
![Page 4: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/4.jpg)
4
Recent case law on pooling – a pool of one
Halpin v Sandpiper Books Ltd:• Company put sole employee in China ‘at risk’ and in pool of one
• Extensive consultation took place
• alternative employment in UK offered
• Dismissed, claimed unfair dismissal
• Was limiting the pool to one employee reasonable?• Decision about size of pool for employer to make
• Meaningful consultation and followed fair procedure
• Pool of one a logical decision
![Page 5: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/5.jpg)
5
A pool the same size as the number of at risk employees
Capita Hartshead Ltd v Byard• Employee one of four actuaries
• Capita lost number of her clients so put her ‘at risk’ in pool of one
• Justification of Pool: • Only workload to have reduced
• Team morale
• Risk of losing clients
• Tribunal found in employee’s favour:• Other actuaries should have been included in pool
• Quality of employee’s work praised
• Capita overstated commercial risk of losing clients if transferred to another actuary
![Page 6: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/6.jpg)
6
General guidance from Capita Hartshead v Byard
• Choice of pool subject to ‘reasonable response’ test
• No need to limit pool to employees doing similar work
• Apply mind to problem of defining the pool
• Not for Tribunal to decide if fairer to act in another way
• Strong reasons behind decision to have a pool the same size as the number of ‘at risk’ employees?
‘Bumping’
• Employer ‘bumps’ out an employee whose work not diminishing in favour of ‘at risk’ employee.
![Page 7: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/7.jpg)
7
Selecting employees at risk for alternative employment
Samsung Electronics (UK) Ltd v Monte D’Cruz• Employee one of four managers – positions merged into one
• Unsuccessfully applied for alternative roles
• Dismissed and claimed unfair dismissal
• Samsung should have used objective criteria to decide if employee suitable for alternative role?
The EAT: Subjective Criteria• Entitled to use own judgement
• Recruitment methods require degree of subjectivity
• Interview procedures not to be overly scrutinised
![Page 8: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/8.jpg)
8
Reducing the collective redundancy consultation period
Under current law minimum consultation period of 90 days where:• 100 or more proposed redundancies
• In one workplace establishment
• Within a 90 day period
The government has proposed to reduce the consultation period from 90 to 30 days
• Improve employers’ flexibility
• Speeds up the decision making process
• Costs savings
Public consultation later this year
![Page 9: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/9.jpg)
9
TUPE Service Provision Changes
Recent case law has tightened up the circumstances when a Service Provision Change (SPC) amounts to a transfer under TUPE 2006.
Reg 3(1)(b) TUPE 2006 defines an SPC as one of three situations:1. Outsourcing activities from in-house to a contractor;
2. Change from one contractor to another; and
3. ‘Insourcing’ – bringing activities in-house.
![Page 10: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/10.jpg)
10
TUPE Service Provision Changes
Four scenarios:
1. Incoming contractor carrying out different activities to outgoing contractor
2. Change of client as well as change of contractor
3. Change of location amounting to a substantial and detrimental change
4. Employees as an ‘organised grouping’
![Page 11: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/11.jpg)
11
Enterprise Management Services v Connect Up
Will there be a transfer under TUPE where the activities carried out by an incoming contractor differ to those of the outgoing contractor?
• 15% of work carried out by outgoing contractor omitted from incoming contractor’s activities
• Activities became ‘fragmented’
• The incoming contractor lost significant amount of work to five other providers
EAT: TUPE?
![Page 12: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/12.jpg)
12
Hunter v McCarrick
Can there be a Service Provision Change where there is not only a change of contractor, but also a change of client?
• Property management services carried out by contractor A on behalf of the client
• Activities transferred to contractor B
• Receivers appointed, properties taken out of the control of the client
• Contractor B carried out the services on behalf of the receivers
• Client changes?
EAT: TUPE?
![Page 13: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/13.jpg)
13
Abellio London Ltd v Musse and Others
Can a change of location under a TUPE transfer amount to ‘substantial and detrimental change’ to give rise to a constructive dismissal claim?
• Change of contractor TUPE transfer
• Employees required to move to new depot six miles away
• Travel time extended by up to two hours every day
• Raised concerns and grievances and subsequently resigned
Did EAT find change was:
• material because it extended the working day by up to two hours?
• detrimental because the Claimants raised concerns with employer?
![Page 14: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/14.jpg)
14
Eddie Stobart Ltd v Moreman and Others
If employees spend the majority of their time on a particular contract, can they constitute an ‘organised grouping’?
• ES Employees spent over 50% of time on contract for V
• Not assigned to the client, only because of the way shift patterns worked out
• Contract transferred to contractor B who did not accept TUPE applied
• ES argued did not have to show employees organised as members of a team, was sufficient that spend majority of time on the contract
Did EAT find TUPE applied to activities for the client?
![Page 15: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/15.jpg)
15
Government Proposals on Executive Pay
Some of the proposals include:
• Listed companies to provide more information on how pay set
• Remuneration reports to cover both current and future pay policies
• Shareholders to have binding votes rather than advisory votes on pay policies
• Provisions to reduce, withhold or clawback pay when company performs poorly
• Encouraging appointment of directors from more diverse backgrounds
• Greater employee consultation in setting directors’ pay
![Page 16: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/16.jpg)
16
How is Executive Pay currently controlled?
• The Companies Act 2006:• Remuneration reports disclosing:
• How pay formulated
• How performance criteria measured
• Shareholders only have advisory votes on the remuneration report
• The Corporate Governance Code:• To ensure shareholders engage in determining remuneration
![Page 17: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/17.jpg)
17
Unfair Dismissal: Gross Misconduct
Pennell v Tardis Environmental UK• Lorry driver caused £2,500 damage to firm’s lorry
• Clean record but dismissed for gross misconduct
• Claimed unfair dismissal and wanted to be re-instated
• Employer failed to provide a reference
Be careful not to jump to conclusions in gross misconduct investigations!
![Page 18: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/18.jpg)
18
Unfair Dismissal: Expired Warnings Airbus UK Ltd v Webb
Can employers take into account previous expired warning and the underlying misconduct?
• Employee dismissed for misconduct three weeks after final written warning expired
• Dismissal letter made no mention of the expired warning
What did Court of Appeal say?• Expired warning not principal reason for dismissal
• Misconduct not time-limited
• Original misconduct relevant to reasonableness of employer’s response to later misconduct
![Page 19: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/19.jpg)
19
Confidential Information Post-Termination
Caterpillar Logistics Services Ltd v Huesca De Crean• Employee signed confidentiality agreement
• Resigned from Caterpillar to join one of customers
• Caterpillar threatened proceedings, though no breach of agreement
• Employee undertook not to breach agreement and to refrain from certain activities
• Caterpillar sought injunctive relief:• Preventing employee from disclosing information – defined in generic terms
• A ‘barring order’ preventing involvement in commercial relationship between Caterpillar and new employer
![Page 20: TSP Connect Employment law Update Seminar 22 March 2012](https://reader033.fdocuments.us/reader033/viewer/2022060119/558de38a1a28ab07438b4569/html5/thumbnails/20.jpg)
20
Confidential Information Post-Termination
Caterpillar not granted any of the relief sought:• No evidence employee had broken or intended to break confidentiality
agreement
• Employee offered an undertaking
• Injunction application too vague – information not specified
• ‘Barring order’ only granted in exceptional circumstances
• NO restrictive covenants in employment contract!
• Caterpillar too aggressive from start of litigation process
• Caterpillar made no attempt to reach amicable solution