Technical update - September 2018

Changing bonus terms post-transfer

Issue

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) generally prevents employers changing terms and conditions post-transfer. Any change is void unless the reason is unconnected to the transfer or there is an economic, technical or organisational reason which also involves a change in the workforce. In Tabberer and Others v Mears Ltd and Others the dispute was whether the scrapping of a bonus scheme was because of the transfer, or on other grounds.

Facts

Electricians, originally employed by Birmingham City Council, received a ‘travel time allowance’. This had been introduced by the Council back in 1958 to reflect lost time travelling between Council depots and the impact that had on employees’ ability to achieve bonus. The allowance had continued despite the bonus scheme having been stopped and the depots closed.  Following the transfer of the electrical maintenance work to Mears it was decided to bring an end to the travel allowance.

Decision

The electricians’ claim that the allowance could not be removed as it was protected under TUPE failed. Whilst it had been established that this was a contractual entitlement that had transferred to Mears it was also found to be “outdated” and “prehistoric” and had “no resemblance to modern times.” In the circumstances the reason for Mears removing the entitlement to the allowance was not because of the transfer, it was due to it’s conclusion that the allowance was outdated and unjustified.

Action

The decision highlights that there may be circumstances which will justify a change to terms and conditions being made post-transfer. The Employment Tribunal will look behind the reasoning for the change and will not automatically regard it as connected to the transfer. Whilst many employers will delay change following a transfer due to fear of falling foul of TUPE, if the reasoning is unconnected to the transfer the issue should be addressed sooner rather than later.

Redundancy with no notice

Issue

Whilst redundancy is a potentially fair reason for dismissal it is important that the employer also follows a fair procedure. That usually involves warning the employee of the redundancy risk, going through individual consultation and looking for alternative work. However as the case of Colquhoun v Independent Living Support Limited shows, there is no mandatory process that applies on every occasion when considering whether the employer has acted in the band of reasonable responses.

Facts

Mr Colquhoun was the IT officer responsible for processing records concerning the charity’s employees and clients. The charity had become aware that its grant from the local council was likely to be substantially reduced. This had led to discussions over a five month period regarding Mr Colquhoun’s potential redundancy to save costs. He was never informed of these discussions and when the decision was made he was immediately put on garden leave for the duration of his notice.

Decision

Following Mr Colquhoun’s claim for unfair dismissal, the charity admitted procedural failings. However, it was held that the charity had fairly dismissed him in the circumstances. Due to the substantial reduction in the charity’s funding it was clear that any consultation would have been futile. It was also considered relevant that had he been given advance notice there would have been a risk he could have caused damage to the IT systems or misused sensitive information.

Action

Obviously the rule is that individual consultation must normally take place but the Tribunal will consider the particular circumstances to decide whether the actions of the employer were reasonable. It usefully found that whilst alternative employment had been available at the time discussions were taking place, at the time the redundancy decision had been finalised the posts were not available. This did not make the dismissal unfair as the employer in those circumstances was not required to ‘bump’ the new employees in order to retain the employee at risk of redundancy.

Giving notice of

Issue

Once clear notice to terminate the contract of employment has been given there is generally no right to unilaterally withdraw it. However, if it is ambiguous or if it is given ‘in the heat of the moment’ it might be expected that the employer would make further enquiries. The issue in East Kent Hospitals University NHS Foundation Trust v Levy was whether an employee’s letter that ‘gave notice’ was ambiguous or sufficiently clear enough for the employer to rely on as her resignation.

Facts

Mrs Levy had successfully applied for a transfer to Radiology after falling out with colleagues in the Records department. As soon as she received the offer, which was subject to pre-appointment checks, she immediately handed her manager a letter stating ‘please accept one month’s notice’. This was accepted and her last day notified to her. Six days later the Radiology offer was withdrawn and her request to retract the notice given to her manager was refused. She claimed unfair dismissal.

Decision

It was held that she had not resigned. The words used in her letter giving ‘notice’ did not identify the subject in respect of which notice was being given – it could have been either a notice of intended transfer or notice of termination. Given the special circumstances, the letter should have been read and understood in the context that it was known she had a conditional offer for a new role in another department and she was informing her manager of a transfer not resignation.

Action

Whilst the employer would usually be entitled to take a clear notice of resignation at face value, the decision highlights that there may be special circumstances which will require the employer to make further enquiries to clarify whether it is the intention of the employee to leave the business. If the employee confirms that it is their intention to resign, the employer will be under no obligation to later agree to accept a retraction of that resignation.

Disability impact not known

Issue

It is unlawful discrimination to treat a worker less favourably because they have a disability. However it is also up to the employee to show that they have a disability that has a substantial impact on their ability to carry out normal day-to-day activities. In the case of Mutombo-Mpania v Angard Staffing Solutions Ltd, the question was whether the employee had done enough to show he was disabled and to make the employer aware of his disability.

Facts

Mr Mpania had worked evening shifts as a temp in the Glasgow Mail centre. He was then switched to the night shift to which he objected, stating that his health condition did not allow him to work regular night shifts. This was treated as a request to move back to the evening shift for that week but in the subsequent weeks he remained on the night shift. He complained again but as he had already missed four night shifts he was told he was no longer required. He claimed disability discrimination.

Decision

It was held that whilst working a night shift could be a ‘normal day-to-day activity’ for assessing if someone was disabled, there was no evidence put forward that Mr Mpania couldn’t do the night work as a result of his medical condition.  In any event, even if he had been disabled the employer could not have been reasonably expected to know it as he had previously stated on his application form that he was not disabled and had no health concerns.

Action

This case highlights that a vague reference to a “health condition” may not be sufficient to infer constructive knowledge on an employer that an employee has a disability. However, in those circumstances there may be an expectation on the employer to ask further questions – although to what degree would depend on the employee’s work background and the information they had previously provided regarding their health.

Tribunal costs

Issue

Awards of costs in relation to failed claims are still the exception rather than the rule in the Employment Tribunal. However in those few cases where a costs award is sought and given, the Tribunal’s ability to take into account the means of the paying party can lead to further disputes. A recent example was in the case of Neckles v Abellio London Ltd where disagreements over ownership of assets led to proceedings also being pursued in the civil courts.

Facts

Mr Neckles presented claims in the Employment Tribunal that were struck out when it was discovered that he had produced falsified evidence. In ordering that he pay £10,000 towards the employer’s costs, the Tribunal took into account Mr Neckles’s evidence that he no longer owned the matrimonial home following his separation. The employer requested that this be reconsidered on the grounds that Land Registry records showed he was still the joint owner of the house with his wife.

Decision

The Tribunal considered that Mr Neckles had misled it and the costs award was doubled to £20,000.  An appeal against this was dismissed despite the fact that proceedings in the County Court brought by the employer, for a charge over the property, had subsequently led to a County Court judge finding that Mr Neckles held the property only on trust for the benefit of his wife. It was held that the Tribunal had been entitled to reach the conclusion it had on the basis of the evidence given by Mr Neckles.

Action

The Employment judge had been entitled to proceed and make the determination about costs despite the usual practice of adjourning proceedings, pending the outcome of County Court proceedings concerning the same subject matter. Overall the decision highlights the potential for costs being ordered in proceedings particularly where a party has lied or misled the Tribunal.