This month’s news round-up is brought to you by Alastair Currie and includes the latest news on: TUPE (whether it is ‘static’ or ‘dynamic’); whistleblowing; changes to unfair dismissal as a result of the recent BNP case on politically motivated dismissals; details of new guidance following the recent Eweida case on religious discrimination; and details of new developments on collective redundancy, family friendly rights and settlement agreements.

Is TUPE static or dynamic?

Given the pace of change around the TUPE Regulations, you could be forgiven for doubting that anyone could think of them as ‘static’.  But the Court of Appeal did just that in Parkwood Leisure Limited v Alemo-Herron and others, when it held that Regulation 5 of TUPE 1981 (now regulation 6 of TUPE 2006) should be given a ‘static’ interpretation – i.e. that a private sector transferee is only bound by collectively-agreed terms that apply at the date of transfer; whereas a ‘dynamic’ interpretation would mean that transferring employees would have the right to benefit from future pay rises or other changes agreed between the unions and the public sector transferor after the transfer.  This decision has been appealed to the Supreme Court who, in turn, referred the question of whether TUPE is ‘static’ or ‘dynamic’ to the Court of Justice of the European Union.  The Attorney-General has now handed down an Opinion on this case and has said that there is no reason, in principle, why ‘dynamic’ clauses, referring to existing and future collective agreements, cannot be transferred as a result of a TUPE transfer.  The Attorney-General’s Opinion is not binding on the ECJ but is persuasive, and we await a final ruling from the Court of Justice on this matter. 

Whistleblowing update

Whistleblowing has been much discussed in the Press this month, with the Mid Staffordshire Inquiry report being published and criticism of so-called ‘gagging clauses’ in compromise agreements.  However, prior to the recent furore, the Government had announced its intention to change whistleblowing legislation, so that ‘protected disclosures’ do not need to be made in ‘good faith’. Instead, an Employment Tribunal will have a discretion to reduce compensation by up to 25% where the disclosure is not made in good faith.  This week, the Government has announced that it will make employers vicariously liable for detriments by one worker towards another because they have made a protected disclosure; but will introduce a 'statutory defence', to protect employers who take all reasonable steps to prevent such detrimental action.

These changes have been added to the Enterprise and Regulatory Reform Bill, which is being debated in Parliament and is likely to become law this summer.

In another whistleblowing development, the Employment Appeal Tribunal (EAT) has this month looked at whether a ‘protected disclosure’ for the purposes of whistleblowing legislation can be made after employment has ended.  The EAT said it can; ‘worker’ and ‘employee’, for whistleblowing purposes, includes former workers and employees (Onyango v Berkeley, February 2013).

Dismissals for political affiliation or beliefs

New legislation will soon be enacted that will remove the need for employees to have a minimum period of service to claim unfair dismissal, if the dismissal is because of the employee’s political affiliation or beliefs.  This implements the recent European Court of Human Rights ruling (in Redfearn v UK) that British law does not give adequate protection to employees who are dismissed because of their political affiliations.  The case concerned an employee who was also a BNP Councillor (please see our November 2012 for a summary). 

Under current law, only employees with a year’s service or more can bring a claim for unfair dismissal – or two years’ service for those employed after 5 April 2012.  Note, however, that this development does not mean that employee cannot be dismissed because of their political persuasion; a Tribunal is still entitled to consider whether the dismissal was fair under normal principles, taking into account - for example - the employee’s job and the impact of their beliefs on those with whom they come into contact at work, such as service users, customers and colleagues. It is arguable that an organisation with an ethos that is clearly based on strong ideological views on social or political issues might be able to justify dismissal of someone whose political affiliations run contrary to that ethos – a well drafted policy will be a good starting point if you need to evidence such a defence.  Like the whistleblowing amendments above, these changes form part of the Enterprise and Regulatory Reform Bill, which is likely to become law this summer.

Religion and belief in the workplace

Moving swiftly on to the second of the two topics which should never be discussed at dinner parties (politics and religion, since you ask)….the Equality and Human Rights Commission has published new guidance on Religion and Belief in the Workplace. The guidance is very practical, and is intended to assist employers with implementing last month’s decision of the European Court of Human Rights (ECHR), Eweida and others (please see our January 2013 edition for a summary).  Although the cases in Eweida were brought by four Christian employees, the principles set out by the ECHR apply to employees with any religion or belief, or none. The judgment affects employer responsibilities for policies and practices protecting religion or belief rights in the workplace, the rights of employees (including job applicants) and the rights of customers and service users.

Collective redundancy consultation reform

The Department for Business, Innovation and Skills has published the snappily entitled Draft  Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013.  This legislation will reduce the current 90-day minimum period before the first redundancy can take effect (if there are 100 or more redundancies) to 45 days. There is no change to the 30-day minimum period for 20-99 redundancies.  The expiry of fixed term contracts will also be excluded from the scope of collective redundancy consultation; but dismissals before the end of a fixed-term will still be covered.

The government also intends to publish new Acas guidance on other aspects of collective redundancy consultation. These changes, and the accompanying Acas guidance, are intended to come into effect on 6 April 2013.

Family friendly rights update

Earlier this month, the Government published the Children and Families Bill, which will radically change the rights of parents to take time off work.  The Bill will also extend the right to ask for flexible work arrangements to all employees, not just parents and other carers. The changes are anticipated to take effect in 2015. 
All those working in HR are keen to see the detail of how this legislation will work in practice, but will have to wait a while longer for that: the Bill only contains powers for government ministers to draw up detailed regulations in due course.

Please see our previous article, Harmony in Nappy Valley? for a summary of the main proposals.

Settlement agreeements

Acas has launched a consultation on a new Code of Practice on Settlement Agreements.This Code is designed to complement new legislation which will prevent offers or discussions about termination of employment being used as evidence in an unfair dismissal claim, unless either of the parties has engaged in ‘improper behaviour’.  The definition of ‘improper behaviour’ will be determined by reference to the Code of Practice, rather than legislation. The draft Code suggests that examples of improper behaviour will include discrimination, victimisation and ‘undue pressure’ being put on employees to accept offers of settlement. 
The consultation closes on 9th April 2013.


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