It’s getting a bit scary. Recently I wrote about how I predicted that Gordon Turner’s serial-litigants.com search website for tracking down abusers of the ET system would be challenged (and it was, in Parliament). Then I wrote a piece about the need for employers to develop social media policies for use by their staff – and last weekend Vodafone hit the news when one of their employees misused the corporate Twitter account to write homophobic and sexist comments. Then Manchester United and Manchester City denied having banned their players from using social media. Finally the BBC tonight reports on a “cyberspace witch hunt” at the world’s formerly favourite airline, BA. 15 cabin crew members are reported to have been suspended for posting inappropriate comments on the Unite website. Unite retorts that the comments were on its Facebook page (so what?) and accused BA of “intimidation”. Clearly this blog is a happening place.
I said 'TUPE, not toupee'
This can be a real headache for employers where they have “inherited” employees following a transfer of an undertaking under the TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006. It is quite well known that if TUPE applies to a transfer then if the Transferor (let’s call it NewCo for ease if not originality) dismisses an employee from the transferee (OldCo) for a reason connected with the transfer, the dismissal will be automatically unfair, unless NewCo can show that an “economic, technical or organisational” reason applied entailing changes in the workforce. TUPE has the effect of transferring all employment contracts and rights from OldCo to NewCo.
Or, to be more precise, and rather less brutal, when did your employment terminate? In technical employment law parlance, what is the “Effective Date of Termination (EDT)”? This is a crucially important date in cases where employer-employee have fallen out because it is from the EDT that time limits for issuing proceedings at an Employment Tribunal (ET) are calculated.
An employee usually has three months in which to issue his/her proceedings – e.g. for unfair dismissal or for discrimination claims. Problems can arise when the papers commencing the claim (called the ET1) are lodged close to the three (calendar) month less one day limit. The ET is very strict about accepting claims outside the three month limit and will only do so if it was not “reasonably practical” for the proceedings to have been lodged within that time.
As an employer, if you want to avoid your name appearing in the Metro or any of the other free papers, try to avoid sacking employees suffering from cancer by email. This is the moral from the recent report concerning Melinda Bolnar, a 27 year old teacher suffering from bowel cancer and who had just endured seven months of chemotherapy and given a 30% chance of survival. According to the report it is alleged that her private school sacked her by email. I should point out that the case is due to be heard at an Employment Tribunal later this year and the above report are merely the employee’s allegations against her employer and not the proven facts.
The House of Lords (HL) has finally handed down judgment in the case of Stringer v HMRC. To say this decision has been keenly anticipated is an understatement. I posted on it a little while ago.
This is a preview of
Will Court decision lead to an increase in dismissals?
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Read the full post (288 words, estimated 1:09 mins reading time)
Apart from the post below I haven’t touched upon these regulations, mainly because they are not the most interesting regulations in the world to read. However, I have been spurred on by posting on the case of Royden & others v Barnetts (see below) and TUPE comes up quite a few times on the search engines as a keyword. In future posts I will look at the TUPE issues on the insolvency of the employer as well as the consultation obligations imposed upon employers by TUPE.
So, what do the Transfer of Undertakings (Protection of employment) Regulations 2006 (TUPE) actually do?
Of course they do I hear you shout. In a recent case before the Liverpool Employment Tribunal a firm in Southport got themselves into a serious mess with the TUPE (Transfer of Undertaking (Protection of Employment) Regulations 2006. TUPE, for those who haven’t had the misfortune to be acquainted with it, are the Regulations that protect employees when a business (“an undertaking” in the Regs) gets transferred from one business to another. The Regs are very complicated and most employment lawyers, if being honest, would admit to loathing them. If an employee is dismissed because of a reason connected with a transfer of an undertaking, TUPE provides that the dismissal is automatically unfair.
If there was any doubt that it was then it has been dispelled by a London Employment Tribunal recently. The facts are interesting enough, but the point of law raised is potentially massive and may cause to happen what Judges fear more than anything else: the floodgates opening! Cue Biblical style disaster, get building the ark now! (Judges and lawyers always worry about “the floodgates” opening when there is a new development in law – it might mean a deluge of cases swamping the courts).
I’ve got to admit my ignorance, I’ve only just discovered the verb “to dooce” and what a great word it is! There are various definitions but most include ”to lose your job because of something that you wrote on your blog”. Rather incongruously, it can also mean to be afflicted with constipation, although if you were about to lose your job because you spilled the beans on your employer, it’s unlikely that constipation would be your main concern.
Not an enviable choice to be faced with, but one that an increasing number of people seem to be having to make, or have foisted upon them, in industry. It is a practice that doesn’t seem to have caught on here in the City where swingeing headcount cuts still rule supreme when an employer wants to cut costs. I’ve written many times in this blog before about the redundancy process and selection criteria and the claims that can arise when employers get it wrong. However, what must an employer do if they decide that a pay reduction is preferable to a cull?
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