[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

TUPE and ‘organised groupings’

[post_details]

[Social-Share]

[post_tags]

In Ceva Freight (UK) v Seawell, Mr Moffat was employed by Ceva Freight, a logistics and freight company, and worked in the “outbound team”.  Although the team worked for a variety of clients, unlike his colleagues, Mr Moffat spent 100% of his time working on the account of one client, Seawell.  In fact, Mr Moffat’s contract specifically said that he had been employed for the purpose of enabling the contract with Seawell to be performed.

When Seawell decided to transfer the work in-house, Ceva asserted that Mr Moffat’s employment transferred to Seawell under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).  This was disputed by Seawell and Mr Moffat’s employment was terminated.  He brought claims against both Ceva and Seawell for unfair dismissal and breach of the TUPE information and consultation obligations.

TUPE applies in two scenarios.  First, where there is a “business transfer” and second, in the event of a “service provision change” (which, generally speaking, captures outsourcing and insourcing arrangements).  In order for there to be a service provision change, there must be an ‘organised grouping’ of employees whose principal purpose is carrying out the work which is transferring.  For these purposes, an “organised grouping” can consist of one employee but the group must be specifically and consciously organised by the employer for the purpose of the activities in question.

In this case, the Employment Appeal Tribunal and Court of Session (Scotland) held that although Mr Moffat spent all of his time working for Seawell, he was ultimately part of a team whose principal purpose was outbound work, not Seawell’s work.  Ceva had specifically and consciously grouped Mr Moffat within the “outbound team”.  Although Mr Moffat worked solely on the Seawell account, Ceva had not “organised” him in a group for this purpose.  Therefore, there was no service provision change and no TUPE Transfer.

This case disproves most employers’ assumptions that an employee who spends all of his time on one contract must transfer in an outsourcing/insourcing arrangement and follows a line of cases narrowing the circumstances in which TUPE will apply.  This is expected to be reflected in the new TUPE Regulations (expected later this year).  For now, employers should bear in the mind that the fact that an employee spends 100% of his time working for one client is not sufficient on its own to establish a TUPE transfer.

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Woolworths spurs landmark decision

[post_details]

[Social-Share]

[post_tags]

Under UK law, a duty to inform and consult employees as a group is triggered when an employer is proposing to make 20 or more redundancies at ‘one establishment’ in a 90 day period. If the duty is breached, a ‘protective award’ can be claimed of up to 90 days’ gross pay per employee.  This appears to be at odds with the European Directive (on which the UK legislation was based) which does not refer to the need for employees being at “one establishment” in order for the consultation obligations to apply.

In 2009, Woolworths went into liquidation making thousands of employees redundant. On behalf of the employees, two unions brought claims for ‘protective awards’ on the grounds that the liquidators had failed to consult with employee representatives ahead of the redundancies.

This case turned upon whether each Woolworths shop was an establishment in its own right. If each shop was not an establishment, then the duty to consult was not engaged in respect of stores with less than 20 proposed redundancies. The Employment Appeal Tribunal ruled that the UK provisions should be interpreted consistently with the Directive and the words “at one establishment” should be disregarded.

Therefore, where an employer proposes 20 or more redundancies across its organisation within a 90 day period, it will have collective consultation obligations even if the number of employees proposed for redundancy at each of its sites is fewer than 20. For example, if an employer was proposing to make 20 employees redundant within a 90 day period, the consultation obligations would be triggered whether all 20 employees are employed at one site or across various sites.

This decision brings about a substantial change with significant consequences for employers with multiple sites.  In order to avoid the risk of expensive collective claims, employers need to ensure that redundancies across the business are monitored centrally and, where necessary, that the collective consultation redundancy obligations are met.

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Tribunals more willing to make costs orders against employees

[post_details]

[Social-Share]

[post_tags]

In employment tribunal litigation, both parties usually bear their own costs. However tribunals do have the discretion to award costs orders against parties who have ‘acted vexatiously, abusively, disruptively or otherwise unreasonably’. Historically, this power has been exercised rarely but a couple of recent cases suggest that the tide is beginning to turn.

In Vaughan v London Borough of Lewisham, Ms Vaughan brought nine unsuccessful claims against her employer. At the end of the hearing, the Tribunal ordered her to pay £87,000 towards Lewisham’s costs despite the fact that:

1. She was unrepresented, unemployed and of limited means;
2. No costs warnings had been provided to her;
3. No deposit order was sought against her; and
4. A settlement offer of £95,000 was made to her.

The Employment Appeal Tribunal defended the costs order on the grounds that Ms Vaughan had advanced a case of ‘mass conspiracy’ unsupported by evidence. The absence of a deposit order or costs warning did not suggest the claims had merit and whilst the settlement offer might seem extraordinary, it simply reflected the commercial reality arising from the fact that the employer was facing the expense of a 20 day hearing. As for Ms Vaughan’s limited means, there was a realistic prospect that she would work in due course and it was for the county court to agree a repayment plan.

In Howman v Queen Elizabeth Hospital NHS Foundation Trust, Mr Howman was dismissed for uploading a fake letter from the Trust’s CEO onto the Trust’s intranet. Following an unsuccessful claim for unfair dismissal, the Tribunal ordered that he pay the Trust’s costs of £43,000. The Tribunal said he was aware that an application for costs would be made against him if he lost and was advised by a judge in an interim hearing that he should carefully consider his position in light of the strong evidence against his case.

However, on appeal, it was held that the Tribunal had not considered whether it was appropriate to make an order that would wipe out Mr Howman’s life savings and force him to sell his family home. The case has been sent back to the Tribunal for them to consider whether to modify the amount of the award.

These cases are difficult to reconcile but it seems clear that Tribunals are becoming more willing prepared to make stringent costs orders against individuals bringing dubious claims even if they have limited means. This is particularly the case when claims are brought against public sector bodies funded by the taxpayer. Whether a similar order would be made against an individual bringing a claim against a private sector employer remains to be seen.

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]