Trade Unions: Certification / Definition

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

Is the General and Healthcare Workers Union ('GAHWU'), whose purpose includes representing employees at internal disciplinary hearings, a trade union?

No, said the EAT in Akinosun v The Certification Officer, upholding the finding of the Certification Officer as one which he was entitled to arrive at.

In deciding whether an organisation meets the definition of a trade union, set out in s.1 TULRCA 1992, Langstaff J set out three points of construction relevant to that definition.

Firstly, whether the organisation's "principal purposes include the regulation of relations between workers and employers or employers associations" is a question of fact for the Certification Officer.

Secondly, the definition looks at whether the principal purpose of the organisation is collective in nature, whatever other individual purposes it may be established to service. In this case, providing representation at internal disciplinary hearings would not, purely by reason of that alone, mean that the GAHWU was a trade union.

Thirdly, whether an organisation is a trade union is a question framed in the present tense, not one which looks to what will be at some future date.

Fee Remission in Courts and Tribunals

The MOJ has published its Response to its recent consultation paper on Fee Remissions for the Courts and Tribunals.

The government intends to introduce a single fees and remission system across all courts and tribunals.  In order to qualify for fee remission, an applicant will need to be in receipt of certain state benefits or have a low gross household monthly income (the gross monthly income test replacing the previous gross annual income and net monthly income tests). 

And, in addition, a new disposable capital test is being introduced.  Those under 61 with a disposable household capital of between £3,000 and £8,000 will be required to spend up to one third of their disposable capital on fees (irrespective of income).  Those with £8,000 or more will be required to spend up to half their disposable capital on fees.  The over 61s will not be required to pay any fee if their disposable capital is less than £16,000 and they meet the low-income test.

The consultation response states that applicants will not be required to provide proof of disposable capital, albeit the Delivery Managers (as they are called) have the power to request evidence.  Evidence is still required for establishing net monthly income, but the evidence requirements are being simplified.

Finally, the time period for applying for retrospective remissions is being reduced from six months to three months.

The changes are expected to take place, by statutory instrument, some time in October 2013.

TUPE Consultation - Government Response Published

The government has published its Response to its Consultation on TUPE. The summary below of what the government is not changing is probably as important as what itis changing.

The main changes which the government is proceeding with are amending the TUPE Regulations to:-

• allow renegotiation of terms agreed from collective agreements one year after transfer, provided any changes are no less favourable to employees
• the location of a workforce can be within the scope of an economic, technical or organisational reason entailing changes in the workforce, thus preventing genuine place of work redundancies from being automatically unfair
• clarify that for there to be a TUPE service provision change, the service provision must be "fundamentally or essentially the same" as before the transfer
• allowing microbusinesses to inform and consult directly with employees
• (in some circumstances) allowing TUPE consultation to satisfy collective redundancy consultation rules.

Importantly, the government is not:-

• removing 'service provision change' from what amounts to a TUPE transfer
• removing the transferor's obligation to provide employee liability information; rather, the time for providing such information is increased to 28 days.

The consultation response does not include the new draft Regulations, nor an expected implementation date (although BIS has informally suggested the implementation date will be January 2014).

Claim Struck Out because of Delay by Tribunal Service

Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary

Can a tribunal strike out a case when a fair hearing is impossible, because of delay caused by the tribunal not serving the ET1 for nearly two years? Yes, held the EAT in Elliott v The Joseph Whitworth Centre Ltd.

Mr Elliott presented his claim on 30th April 2010. But it did not reach the Respondent, the Joseph Whitworth Centre, until February 2012.

The delay was caused by errors in tribunal administration, compounded by a failure of Mr Elliott's representative to make enquires.

The Joseph Whitworth Centre applied for strike-out under rule 18(7)(f), on the basis that a fair hearing was impossible. They argued that the delay meant that memories would have faded.

The tribunal agreed and struck out the claim.

Mr Elliott appealed, arguing that the Judge had not heard evidence as to the witnesses' recollections and, therefore, her conclusion that they had faded was unsustainable.

The EAT dismissed the appeal. HHJ McMullen QC noted that whether a fair hearing was pre-eminently a question of fact for the tribunal and the EAT would rarely interfere. He added that the Claimant's remedy probably lay elsewhere.

Employee Shareholders

The government has produced guidance on employee shareholder status, which came into force yesterday (1st September 2013).

An interesting point is that the government states: "If an employee shareholder sells their shares, their employment status does not change. A change of employment status would require a change of employment contract to alter the employment status." Query whether this entitles an employer to insist on an automatic buy-back of shares, say after one month, to avoid the employee having any long-term shareholding.

On a lighter note, here's a summary of the views of the Twitterati on employee shareholders. And here is the Daily Telegraph on Saturday reporting the British Chamber of Commerce has had no enquiries about take-up for employee shareholder status.

Proposed Changes to TUPE 2006

[Just 28 of 220 places left on the fourth and final London Employment Law MasterClass this coming Tuesday - see details]

According to an article in Personnel Today, the government's proposed changes to TUPE are now likely to be published next month and come into force in January 2014.

The proposed changes are expected to include:-

• repealing regulation 3(1)(b) (the 'service provision change' definition of a transfer)
• repealing regulations 10 and 11 (employee liability notification requirements)
• amending the meaning of 'economic, technical or organisational reasons entailing changes in the workforce'
• allowing TUPE consultation to satisfy collective redundancy consultation requirements
• allowing microbusinesses to inform and consult directly with employees (rather than electing employee representatives)
• closing a loophole relating to the transfer of pensions

I'll be going through these (at breakneck pace - no more than 10 minutes!) at my MasterClass.

Employee Shareholders

Thanks to Practical Law for giving permission to reproduce their website summary (follow them on Twitter)

On 15 August 2013, HMRC updated its Share and Assets Valuation Manual (SVM) to take account of the implementation of employee shareholder employment status on 1 September 2013. In order to implement employee shareholder status, employees must, in return for giving up certain statutory employment rights, receive at lease £2,000 of shares (valued on a restricted basis). Employee shareholder shares worth up to £50,000 at acquisition (valued on an unrestricted basis) will be free from capital gains tax on disposal.

The new section of the SVM confirms that it will be possible to apply to HMRC for a valuation check prior to employee shareholder shares being awarded. A new form VAL 232 has been created for this purpose (although this does not seem to be available on HMRC's website yet). The form will require applicants to state both the restricted and unrestricted market value (perhaps in a similar way to form VAL 231, which is used for EMI valuations).

Starting a Claim in the Employment Tribunal

I don't normally distribute this kind of thing, but Leigh Day have produced a first-rate guide toStarting a Claim in the Employment Tribunal which is well worth reading. It explains, very practically, how to start a claim, how to deal with fees, how the remission system works and how the costs regime operates. This will all be covered in my final Employment Law MasterClass (in London, on 3rd September 2013), along with a ton of other important changes to employment law.  Just 44 out of 220 places left now - don't miss out.

Meaning of Dismissal

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary What is the difference between dismissal and mutually agreed termination? The EAT has given a good example on the facts in Francis v Pertemps Recruitment. In this case Mr Francis was employed by Pertemps, an agency, which placed him in work with a client whose identity was specified in the contract of employment. Subsequently that client no longer had need for the services of Mr Francis. Pertemps therefore offered Mr Francis the choice either of two weeks' notice plus redundancy pay or two weeks' notice with the agency looking out for fresh work with a view to him working for a new client. At first he chose the latter. But then he changed his mind and chose the former. The HR department wrote to him confirming his position was redundant and that he was to treat the letter as "formal notice of redundancy". Furthermore the letter told him that he had a right to appeal "against the decision to terminate your employment". Mr Francis did in fact appeal (although this was unsuccessful). When Mr Francis claimed unfair dismissal, Pertemps argued that there was no dismissal but that the employment had ended consensually, by mutual agreement. The employment tribunal accepted this argument but the EAT overturned it. The question of whether there was a dismissal for unfair dismissal purposes depended on whether the contract of employment had been terminated by the employer. All the language used was consistent with termination by the employer. The choices offered to Mr Francis both involved his being given notice. The employer's arguments that "notice" and "redundancy" were loose terms, not intended to have their formal meaning, and that the right to appeal was "meaningless", were rejected as unrealistic. The appeal was allowed and a finding that there had been a dismissal was substituted.

O'Brien v MOJ - Part-Time Judges

Thanks to Sheryn Omeri of Cloisters for preparing this case summary

How should the pension of fee paid (ie part-time) judicial officers be calculated?

According to a number of straightforward principles, holds the employment tribunal in the important case of O'Brien v MOJ.

The Supreme Court had previously held that Mr O'Brien, a retired Recorder, was entitled to a pension on terms equivalent to those applicable to a circuit judge, pursuant to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It remitted the case to the employment tribunal to determine the principles upon which the quantum of that pension entitlement must be calculated to ensure equivalence.

The tribunal held that Mr O'Brien was entitled to a pension calculated from the start of his service in 1978 even though this pre-dated the commencement of the Regulations, and to an award of compensation that included an 'interest-like sum' in addition to the payment of arrears of pension and lump sum. The multiplicand for the purposes of computing Mr O'Brien's pension entitlement was to be determined by multiplying the salary of a full-time circuit judge as at the date of Mr O'Brien's retirement by a factor which equalled the total number of days on which he sat throughout his career divided by 210, and dividing the result by the length of his service.

This decision will, subject to any appeal, bind the Ministry of Justice with respect to all part-time judges - including fee-paid employment tribunal judges, recorders, deputy district judges and deputy High Court judges.

Gross misconduct and mitigating circumstances

Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary

Does a finding of gross misconduct automatically mean that dismissal is within the band of reasonable responses?

No, according to the EAT in Brito-Babapulle v Ealing Hospital NHS Trust. The tribunal must go on to assess whether dismissal is a reasonable sanction having regard to the mitigating circumstances of the case.

The Claimant (a hospital consultant) had been treating private patients while on sick leave from the NHS, and for this reason the NHS dismissed her for gross misconduct. The Claimant appealed against the tribunal's decision that her dismissal was fair.

The EAT found that the the tribunal was entitled to conclude that it was reasonable for the employer to find the Claimant guilty of gross misconduct, but had erred in assuming that this inevitably meant that dismissal was within the band of reasonable responses. The case was remitted for the tribunal to consider whether it was reasonable in all of the circumstances to dismiss the Claimant for this gross misconduct.

Compensatory Award

Thanks to Joanna Cowie of SA Law for preparing this case summary

Could post termination conduct affect the assessment of a compensatory award for unfair dismissal? Yes, according to the EAT in Cumbria County Council v Bates.

The Claimant, a teacher, was found to have been unfairly dismissed. At the remedies hearing, the tribunal was made aware that the Claimant was facing criminal proceedings for assaulting a former pupil. The Respondent requested an adjournment until the outcome of those proceedings, on the grounds that they may affect the Claimant's future employment prospects and were therefore relevant in assessing future loss of earnings and pension loss. Rejecting the application and referring to the decision in Soros v Davidson, the tribunal refused to take into account post-dismissal conduct, citing it as irrelevant when assessing the compensatory award. The Council and School's governing body appealed.

Allowing the appeal, and remitting the case to a new tribunal for consideration, the EAT held that the tribunal had erred in its approach. Applying the principles in Software 2000 Ltd v Andrews, the EAT decided that the Claimant's post-termination conviction for assault and subsequent 6 week prison sentence may have affected his future employment prospects and, consequently, could have substantially reduced any compensatory award.

Acas Imitators

Acas is warning employers of companies claiming to be part of and/or acting on behalf of Acas. They typically offer initial advice, which they don't charge for, but then ask people to sign up to a long-term, often expensive contract for employment and/or health and safety advice

If you know of people who have signed up to such a contract, Acas suggests contacing the Office of Fair Trading.

More information from Acas here.

Confidential Information / Liability of New Employer

Thanks to Sarah Russell of Slater & Gordon for preparing this case summary

Is copying your employer's Sage database and using it in the employment of a competitor actionable as a breach of confidence?

Yes, if the information it contains is actually used, according to the Patents County Court in Pintorex Limited v Keyvanfar.

Mr Keyvanfar copied the Claimant's database and loaded it onto a laptop owned by his new employer, Parax Office Limited ('Parax'). Mr Keyvanfar then used the pricing information it contained to approach two of the Claimant's clients, and undercut the Claimant's prices.

Parax was held to be liable for the breaches of confidence by Mr Keyvanfar, including those pre-dating Mr Keyvanfar's employment, on the basis that he was acting to further Parax's interests as Parax's agent, and that Parax had sufficient knowledge of what was going on to be jointly liable.

The Third Defendant, the sole Director of Parax, could also have been jointly liable for the breaches had he had a 'common design' to commit them, or 'dishonestly' ignored what was going on, but it was held he did not know and so could not be jointly liable.

Tribunal Fees

On 9th July 2013, the Court of Session refused to grant an interim interdict in the judicial review application brought by Fox & Partners against the introduction of tribunal fees.

The full judgment of Lord Bannatyne, setting out his reasons for refusing to grant the interim interdict, is now available. Paragraph 35 is interesting, setting out the government's figures about the expected income and costs of running the fees regime.

The full judicial review hearing is expected to be heard in October, as is the judicial review brought in England by Unison.

[I'll be going through the fee regime in my final MasterClass in London on 3rd September.  Only 60 places left in the room...]