TUPE and short term contracts

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Are events following a putative service provision change relevant in determining whether it was the client’s intention that the contract awarded be short term, and caught by the short term task exception?

Yes, held the EAT in ICTS UK Limited v Mahdi.

ICTS had a contract to provide security services to Middlesex University at one of its former campuses. Middlesex sold the site but ICTS continued as service provider. The new owner then put the security service out to tender. Mr Mahdi lost his job when the contract was taken over by a new contractor, First Call.

First Call disputed there was a TUPE transfer on a number of grounds, one of which was that, whereas ICTS had a contract to secure an operating site, First Call had a contract simply to look after the site pending its redevelopment by the new owner. The new contract was, therefore, First Call said, a contract for a single specific task of short term duration and so excluded from being a service provision change by virtue of TUPE, Reg 3(3) (a) (ii).

The exclusion only applies, however, where it is the client’s intention that the activities concerned are to be carried out in connection with a task of short term duration. An Employment Judge accepted First Call’s argument that when the contract had been granted it was the intention that the contract was to be for a limited period, to look after the site pending construction.

But by the time of the hearing no planning permission had been obtained and no building work had commenced. On appeal, the EAT said this may have been relevant, and should have been taken into account by the Employment Judge. The Employment Judge therefore erred in law in not doing so, and the case was remitted for a re-hearing by the employment tribunal.

Given that the EAT has previously decided, in Robert Sage Ltd v O’Connell [2014] IRLR 428 that an intention is more than a “hope and wish”, subsequent events, held the EAT, can be relevant in deciding a client’s intention for the purposes of Reg 3 (3) (a) (ii).

New Government Guide: Transgender Staff

The Government Equalities Office has today published a new guide for employers on Recruitment and Retention of Transgender Staff. It is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also intended as a guide for the managers of transgender staff and for transgender staff themselves.

Practice and Procedure: Amendment to Claim and Acas Early Conciliation

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary When an employment tribunal claim is amended to add a new cause of action, is fresh early conciliation required? No, held the EAT in Science Warehouse Limited v Mills. Ms Mills resigned her employment with her employer whilst on maternity leave. She made various allegations under the Equality Act 2010 and went through early conciliation. No settlement was reached and ACAS issued an EC certificate. The Claimant then presented an employment tribunal claim form (ET1) complaining of discrimination on account of pregnancy or maternity contrary to the Equality Act 2010. This was defended by the employer. The employer also said in its ET3 that, had she not resigned, the Claimant would have been subject to an investigation and potential disciplinary action in relation to a conduct issue. When the Claimant received that response, she made an application to amend her claim to include a complaint of victimisation in respect of the employer's allegation against her in the ET3. The employer objected to the amendment on the basis that the Claimant had not gone through the early conciliation procedure in relation to that added claim. The EAT held however that section 18A of the Employment Tribunals Act 1996 did not require that the EC process be undertaken in respect of each claim, as it used the broad terminology of "matter". When a Claimant had lodged a previously valid employment tribunal claim following an EC reference and was applying to amend to add a new, but related, claim, this was a matter for the employment tribunal's general case management powers and a fresh application for early conciliation was not necessary.

Tribunal Procedure: Use of Interpreters

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Was it wrong for an employment tribunal to proceed with a hearing where an interpreter had previously been requested but did not attend?

No, held the EAT in Hak v St Christopher's Fellowship.

The Claimant, who had some command of English, wanted to be assisted by an interpreter and requested one in advance of a hearing, but none were available. At the outset of the hearing, the Employment Judge asked the Claimant whether he wanted to proceed, to which he replied that he did. The Claimant appealed when his claim was struck out.

While reluctant to give any prescriptive guidance, the EAT said that in cases such as this, giving a choice of proceeding, or alternatively waiting until an interpreter may be found if one can be, provides a reasonable opportunity for litigants to have an interpreter if they wish. A judge must be satisfied that the litigant's understanding of that issue is sufficient for the choice to be real.

However, there may be circumstances where the litigant's command of English is so poor that they simply cannot give the account which they would wish to give. In such a case, it may be insufficient to offer the litigant the choice of whether to proceed on that day, or to wait until a later date when an interpreter might be found.

Discrimination and Time Limits

[Thanks to Bruno Gil, pupil barrister of Old Square Chambers for preparing this case summary]

Can an employment tribunal consider complaints of different types of discriminatory conduct when considering whether there is an act extending over a period?

Potentially yes, held the EAT in Robinson v RSCH.

The Claimant, a nurse with a disability, was dismissed following a capability hearing. She brought a claim complaining of various acts of direct disability discrimination, disability related harassment and a failure to make reasonable adjustments. These complaints related to various acts of the Trust in 2011/12 and then her dismissal in 2013.

The employment tribunal, when determining whether there was a continuing act in time, considered each of the causes of action (direct discrimination, harassment and failure to make reasonable adjustments) separately. It held on the facts that the dismissal was not part of a continuing act and that the claims were accordingly out of time.

The Claimant’s primary case on appeal was that the employment tribunal had erred in considering each complaint separately when determining whether there was a continuing act of discrimination. On the facts, the EAT held that the employment tribunal was entitled to form the view that there was no link between the earlier acts and the decision to dismiss, so that the point was academic.

The EAT went on to state (obiter), however, that when considering whether a Claimant has made out a prima facie case that the acts of which she complains amount to conduct extending over a period, it might be appropriate to allow complaints of different types of discrimination to be taken together as constituting conduct extending over a period. The example given was where there are complaints of 1) direct discrimination for putting the Claimant on specific, undesirable shifts; and 2) a failure to make reasonable adjustments to put the Claimant on different shifts.

TUPE: Change in Identity of Employer

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Is there a transfer of an undertaking when an employee changes from being employed by a single employer to a group of employers which includes the original employer?

No, held the EAT in Hyde Housing Association v Layton, upholding the employers' appeal, there was no transfer of the Claimant's employment on the facts. The EAT also noted that multiple transferors would not prevent TUPE applying.

The Claimant had been employed by Martlet, a provider of social housing, which joined with other providers to form the Hyde Group, which was not a separate legal entity. After a restructure the Claimant was dismissed by Martlet and re-engaged on a new contract by a group of employers including Martlet, an arrangement reportedly common in the sector.

The Claimant claimed unfair dismissal, the issue was whether his employment transferred under TUPE regulation 3 (1) (a). The EAT held that since Martlet had retained liability for the Claimant's employment notwithstanding that its liability was now joint and several with other employers, the change of employer was not legally relevant for TUPE purposes. The EAT also held that the Acquired Rights Directive did not require TUPE to apply, as the employer's legal position with regards to the employee was unchanged (as with a change of shareholders). Noting the potential importance and novelty of the issue, the Claimant received leave to appeal.

Holiday Pay: When Part-Time Workers Increase Hours

Thanks to James English of Hempsons solicitors for preparing this case summary If a part-time worker increases her hours, is her employer obliged to recalculate her entitlement to annual leave retrospectively, even taking into account annual leave already accrued and taken? No, held the ECJ in Greenfield v The Care Bureau Ltd. The Claimant's working hours and days varied from week to week. She took 7 days' paid leave at a time when she was working one day a week (the equivalent of 7 weeks' leave). Her employer said this exhausted her entitlement. She then increased her hours to 12 days on, 2 days off each fortnight. After her employment ended, she claimed a payment for accrued but untaken annual leave. The employment tribunal upheld her claim, but following an appeal and application for reconsideration, referred the matter to the European Court of Justice (ECJ). The ECJ held that annual leave must be calculated in accordance with a worker's contractual working pattern, and the hours, days (and fractions thereof) actually worked. However, the taking of leave accumulated in one period has no connection to the working hours in the later period when leave is actually taken. There was already authority that a reduction from full-time to part-time working should lead to no reduction in the amount of leave a worker has already accumulated (Zentralbetriebsrat der Landeskrankenhauser Tirols, 2010). An employer must therefore distinguish between different periods of different working patterns and calculate the leave that accumulates in each period separately, taking the same approach whether this is during employment, or after it has ended.

Unfair Dismissal: Consistency of Treatment

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Does inconsistency of treatment make a dismissal unfair?

Not necessarily, held the EAT in MBNA Limited v Jones.

Two employees were at a corporate social event, before which they had been warned that normal standards of behaviour and conduct would apply. But the two began drinking and fell out. Mr Jones punched a Mr Battersby in the face. In turn, later on, after the event, Mr Battersby texted Mr Jones on a number of occasions threatening, inter alia, to "rip your f*ing head off". He never carried out his threats.

A disciplinary investigation ensued with charges brought against both. The outcome was that Mr Jones was dismissed for his behaviour but Mr Battersby was given a final written warning.

In the unfair dismissal case brought by Mr Jones the employment tribunal considered his dismissal to be unfair because of the inconsistency of treatment between the two. On appeal the EAT overturned this decision. The Employment Judge had not applied the test set out in section 98(4) of the Employment Rights Act 1996, which requires recognising that there may be a range of reasonable ways in which an employer may react to the circumstances which give rise to the dismissal. He had also failed to apply the test in Hadjioannou v Coral Casinos Limited, and, in particular, failed to consider whether there was a decision made in truly parallel circumstances which made it unreasonable for the employer to dismiss the employee.

In the present case the Employment Judge had not expressly, for the purposes of a disparity argument, drawn a distinction between a deliberate punch in the face at what was designated to be a workplace and a threat afterwards that was never carried out. If he had, he would have been bound to conclude the circumstances were not the same.

Continuity of Employment

Thanks to Georgina Bryan of Littleton Chambers for preparing this case summary

Did the employment tribunal’s erroneous view that the presumption of continuity of employment applied vitiate its conclusion?

Not in this case, held the EAT in Thames-Side Court Estate v Jones.

s.218 ERA provides that where X is employed by A and B in succession, the change of employer will not break continuity of employment where A and B are “associated employers”. Employers are “associated” if one is a company over which the other has indirect control. The employment tribunal held that the Claimant had sufficient continuity of employment to bring an unfair dismissal claim on this basis.

In the EAT it was undisputed that the employment tribunal had erred in considering that there was a presumption of continuity of employment in cases involving associated employers. However, this was not fatal to the employment tribunal’s decision.

The first employer company was part of an opaque corporate structure. The Respondents had declined to attend the employment tribunal and provided only limited disclosure. In these circumstances, and on the facts of the case, the employment tribunal was entitled to infer that the first employer had an ultimate human beneficiary who was a member of the Respondents’ family. The employment tribunal had made permissible findings of fact and applied the correct test for an “associate employer”, namely whether one employer had legal (rather than de facto) control over the other.