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Permanently ill employee did not transfer under TUPE

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An employee who had been unable to work due to illness for 6 years and would not be returning to work was not assigned to the group transferring under TUPE, so his employment did not carry over to the incoming employer. The employee was simply ‘on the books’ in order to continue to receive permanent health insurance, therefore lacking the necessary involvement in the work being done by the transferring team to be regarded as part of it.

Mr Edwards worked for Orange in its domestic network outsource (DNO) division and had been on permanent sick leave since January 2008. From 2009, Mr Edwards was receiving regular payments from the company’s permanent health insurance provider. In July 2009, the DNO division at Orange transferred to a subsidiary of BT and Mr Edwards and his colleagues transferred to BT under TUPE. It became apparent in 2010 that Mr Edwards would never return to work, so he continued to receive permanent health insurance payments as he had before the TUPE transfer. In June 2013, the DNO division transferred again, this time from BT to Ericsson. Ericsson refused to accept BT’s argument that Mr Edwards transferred to Ericsson as part of the division despite his absence.

Ericsson was right to object, as the Employment Appeal Tribunal held that Mr Edwards did not transfer under TUPE in 2013. The EAT held that, in order for Mr Edwards to have transferred, he would either need to have been involved in some way with the work being carried out by the DNO division before the transfer, or be expected to return in future to carry out the work after the transfer. As he met neither of the criteria, he was not part of the DNO team, but instead had a merely administrative or historical connection to it.

The EAT was at pains in this case to make clear that its judgment applies only to the relatively rare situations in which employees have no prospect whatsoever of returning to work. In the majority of cases, where employees are expected to return to work at some point in the (however distant) future, the likelihood is that they would transfer under TUPE.

BT Managed Services Ltd v Edwards and another UKEAT/0241/14

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HR’s heavy influence in disciplinary investigation made dismissal unfair

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An employee was unfairly dismissed in circumstances where heavy influence from the Human Resources department had led to the investigating officer changing his recommendation from a final warning to immediate dismissal.

Mr Ramphal worked as an Aviation Security Compliance Inspector for the Department for Transport. His job involved travel and he received an allowance to cover his expenses in that regard. After a random expenses audit in June 2012, concerns were raised about Mr Ramphal, including excessive petrol use, personal use of hire cars and other purchases identified as suspicious. Mr Goodchild was appointed to investigate and, after holding a disciplinary hearing, produced the first draft of his report on 11 September 2012. The report contained some criticisms of Mr Ramphal’s conduct as well as findings in his favour in a number of respects, with the consequence of a recommendation that Mr Ramphal be given a final warning for misconduct. Over the subsequent 6 months, HR was in frequent contact with Mr Goodchild and made a number of amendments to the report leading to a number of various drafts. The final report was significantly different from the original draft, replacing the favourable findings with criticisms and recommending a sanction of summary dismissal for gross misconduct.

The Employment Appeal Tribunal set aside a decision that Mr Ramphal’s dismissal was fair. It held that it was implied into an employment contract that the report of an investigation officer into allegations of misconduct would be the product of the officer’s own investigation; in this case, it held that the input from HR had been ‘disturbing’ and had wrongfully affected the decision on Mr Ramphal’s culpability. HR can offer advice to an investigating officer, but only on matters of law and procedure – they cannot involve themselves in the decision as to an employee’s blameworthiness.

Ramphal v Department for Transport UKEAT/0352/14

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Victimising an employee for being associated with allegations of discrimination by others is unlawful

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Victimising an employee for being associated with allegations of discrimination by others is unlawful

Posted by BDBF on 9 October 2015

Tags: Discrimination

It is possible for a victimisation claim to succeed where a person is treated less favourably because someone else has made an allegation of discrimination and in the employer’s mind the two people are associated. There is no need for any actual connection between the person who made the allegation and the person who suffers as a result of it so long as the employer perceives them as associated.

Mr Thompson was a bus driver for London Central Bus Company Ltd. He had told his manager about a conversation he had overheard in which colleagues were suggesting that the bus company had breached the Equality Act 2010. Shortly after that, he was given a 21-day unpaid suspension and a final written warning after an incident in which he gave his high visibility vest to another employee. Mr Thompson complained that he had been subjected to the disciplinary procedure because the bus company had associated him with the colleagues who had made the allegation of discrimination, partly because they were members of the same trade union.

The Employment Appeal Tribunal held that Mr Thompson’s claim for associative victimisation could succeed without the need for any particular relationship between him and the protected acts of other people. The link between the person receiving the detriment and the person responsible for the protected act can exist solely in the employer’s mind; therefore, all that was relevant was whether the overheard conversation was the reason for the bus company putting Mr Thompson through a disciplinary process.

Thompson v London Central Bus Company Limited UKEAT/0108/15

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