Victoria Phillips is head of employment rights at Thompsons Solicitors
We report what looks to be a rare piece of good news for union rights in this week’s LELR Weekly. The Employment Appeal Tribunal has ruled that where an employer intends making 20 or more employees redundant, the duty to consult collectively applies irrespective of how many redundancies there are in individual workplaces.
It’s always been a bit unclear what constitutes an establishment for collective bargaining purposes, but the EAT decision in Usdaw and ors v WV Realisation 1 Ltd appears to mean that doesn’t matter any more.
The case involved employees of the much-missed Woolworths and also those of the clothing retailer Ethel Austin, both of which went bust in 2008 with the loss of thousands of jobs.
Management consulted in all but the stores that employed fewer than 20 staff, on the basis that the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) states that the 20 or more employees must be at “one establishment” in order for the duty to apply.
But this has always been inconsistent with the European Union Directive that gave rise to TULCRA and which only required there to be 20 or more redundancies at “the establishments in question”.
So the EAT has ruled that the duty applies where an employer proposes to make 20 or more employees redundant, whether or not they are in the same workplaces.
Inevitably, employers’ lawyers are in a tizzy about the financial implications for their paymasters. Although the judgment has not yet been published, they are interpreting it as having a major effect on collective redundancy law and that it will be a lot more expensive for employers to get rid of large numbers of workers if they have to go on employing them all until the statutory minimum consultation period (now reduced to 45 days for 100 plus redundancies and 30 for 20 to 99) is over. They are already dreaming up ways of getting around this.
And no doubt they will go running to their friends in the Ministry, pleading to be freed from the tyranny of EU legislation which has imposed yet another burdensome requirement to do the right thing before booting unwanted workers out of the door.
Victoria Phillips is head of employment rights at Thompsons Solicitors
The weekly Thompsons Solicitors Blog
We now know that Section 17 of the Enterprise and Regulatory Reform Act, which covers whistleblowing, comes into force on 25 June 2013. It restricts qualifying disclosures to those made “in the public interest” and which are “reasonable in the circumstances”.
So no matter how much the actions of an employer in breaching a worker’s contract may reflect on it as a public organisation, such a disclosure is unlikely to satisfy a public interest test. Being denied your rightful holiday pay is, apparently, a personal, not a public matter.
As I’ve written before, the government is all over the place on whistleblowing. It uses ERRA to further restrict protection for whistleblowers while simultaneously taking the credit for banning gagging clauses in the NHS which stop staff from speaking out about patient safety or care (although any agreement which prevents a worker making a protected disclosure was already void under the Employment Rights Act 1996).
Ministers have also promised a call for evidence to establish whether the whistleblowing legislation, including its scope, should be reviewed.
Now the charity Public Concern at Work has set up a commission with a view to influencing the government on a number of issues, including broadening the definition of a protected worker and adding trade unions to the list of persons to whom a protected disclosure can be made.
Its consultation, which ends on 21 June, seeks views on attitudes to whistleblowing among individuals, organisations and wider society, whether law and policy is adequate and effective, how whistleblowing can be incentivised, whether regulators should be doing more and if employment tribunals need more powers to protect whistleblowers.
Thompsons will certainly have something to say about the way tribunals treat whistleblowers. Put bluntly, they loathe such claims. And given the sort of claims they tend to see are those that that section 17 will knock on the head, it is difficult to imagine this government giving ETs greater powers to help claimants.
See this week’s LELR for more details about ERRA implementation dates.
Click on the image to access the full Thompsons Labour and European Law Review
Victoria Phillips is head of employment rights at Thompsons Solicitors
I’m writing this from the ASLEF annual conference, a union whose members are all too familiar with the devastating effects of asbestos exposure, as well as of other industrial diseases.
In the main, members who have become ill, and the many who have tragically died, have been able to claim compensation from the former rail industry employers who exposed them. Even those employers which no longer exist can be traced, more often than not back to British Rail. This means that historic employer liability insurance policies will usually be available and a claim against them can be made.
But thousands of industrial disease sufferers negligently exposed in the course of their work have been unable to trace their employers’ liability insurers and so are unable to bring a claim
Now the government has launched the Mesothelioma Bill, which had its second reading in parliament this week. It establishes a scheme of last resort for untraced employers’ liability insurance claims and has given the coalition a fair few positive news stories.
But it’s not the act of benevolence it is portrayed as. It’s certainly not the proposed scheme which the last Labour government consulted on, which would have created an insurance fund of last resort to compensate all industrial disease victims where the employer has gone out of business and their liability insurer can’t be traced.
It’s unlikely the scheme will pay more than 70% of the average compensation claimants would have got if they could trace their former employer’s liability insurance. And it will only compensate mesothelioma claims, but only then the ones where diagnosis was on or after 25 July 2012 – an arbitrary cut off date based on when the coalition finally got round to announcing the outcome of the consultation which had ended the day before the 2010 general election.
So aside from the thousands of people who have been deprived of compensation over the years due to the insurance industry’s incompetence in losing or destroying the policies it sold for decades in a compulsory market, hundreds more will lose out due to the government’s delay of over two years in announcing its intentions.
A delay no doubt caused by ministers’ cuddling their insurance industry buddies until the latter were completely reassured that the scheme would not dent their vast profits.
There are lots of other holes in the scheme. To read more see this week’s LELR weekly.
Click on the image to access the full Thompsons Labour and European Law Review
Victoria Phillips is head of employment rights at Thompsons Solicitors
The Thompsons Solicitors Weekly Blog
Another consultation lands. The Health and Safety Executive is proposing a revised Approved Code of Practice (ACoP) on the workplace health and safety regulations.
It’s a mild one by the standards we have become used to from this government. Another emanation from the Löfstedt review of health and safety, it implements the recommendation that the HSE should review all its ACoPs.
We will be studying the detail before firmly concluding that the proposed changes are of little concern. But in general they are updates of various aspects to reflect amendments in the Workplace (Health, Safety and Welfare) Regulations 1992 themselves, including the deletion of out of date duties and responsibilities.
Ironically, whereas the ministerial motivation for commissioning the Löfstedt review was the now well-worn path of reducing burdens on business, health and safety ACoPs are not obligatory for businesses to follow.
If they do however, they can be reasonably sure that they are complying with legal requirements. And if they don’t, and an accident happens, a court may take a dim view. So as burdens go, the ACoP is more of a help than an hindrance. It’s certainly not proactive regulation.
Yet the aim of the consultation is “to establish if the changes make it easier for employers to understand and meet their obligations”.
The Löfstedt review, and Lord Young’s before that, found little evidence that employers don’t really understand their obligations. And the burden on business was more perceived than real.
That’s an inconvenient truth. No amount of re-drafting of the regulations and codes will satisfy those in the business lobby and in government with a seemingly pathological hatred for health and safety regulations.
Every time we secure compensation for someone injured in a workplace accident, it’s a cost that could have been avoided if the employer had observed some simple rules and guidance.
At a time when the HSE is operating under swingeing budget cuts do we really need another consultation based on anecdotal evidence that life must be made easier for employers, when what is needed is increased inspections and prosecutions and to hammer home the truth that safe workplaces are more successful businesses?
And let’s not forget that this government is making it increasingly difficult for accident victims to be properly compensated by their employer’s insurer. Ironically, for a government that wants to minimise state intervention, this means that the state is likely to have pick up the tab for an employer’s negligence through welfare claims.
To read more about the consultation see this week’s LELR.
Victoria Phillips is head of employment rights at Thompsons Solicitors
The weekly UnionHome Thompsons Solicitors Blog
Employers’ body the Institute of Directors accused the government of a “poverty of ambition” in its response to this week’s Queen’s Speech. It complained that the new legislative programme “does little to cut back red tape for employers and nothing to tackle the problem of ‘gold-plated’ EU regulation”.
Aside from the fact that one of the most vicious pieces of legislation – the Enterprise and Regulatory Reform Act – has just received royal assent, a swathe of further employment law reforms are still in process.
So if working people appear to have been given a bit of a breather from further dismantling of their rights at work, it is not, I fear, for lack of government ambition.
The IoD is of course miffed that its bonkers “Beyond Beecroft” Bill to bring in no-fault dismissals didn’t make it onto the legislative agenda. [see this week’s LELR weekly]
Nor did its “Too Big to Strike” and “Midas” Bills – the former requiring at least 50% of union members to back industrial action and the latter restricting implementation of EU directives into UK law to the minimum required.
But if the bosses body didn’t think it had the wind behind it, it wouldn’t be persisting in its efforts to further restrict trade union rights and to rob workers of the little job security they still have.
A curious theme emerged from the comments made by IoD director general Simon Walker. Marital breakdown.
Unions have, he claims, become divorced from their original purpose, no longer representing workers from specific industries and able to cause disruption beyond the site of the original dispute.
Compensated no-fault dismissals are, he thinks, “like a divorce” – the relationship isn’t working and there is no point in going on or even going to court.
Given that a key part of the original purpose of trade unions was collective action in the absence of other influence over injustice in working life, Walker seems to be arguing against himself.
And his no-fault dismissals analogy only works if it is assumed that marriages are built on the same master and servant relationship as the employment one is. How cynical.
Walker’s “super unions” line – he wants the Competition Commission to investigate union mergers – makes no more sense. Interviewed on the Today programme, he attacked public sector super unions for being too strong, but praised private sector ones for being constructive and helping to keep factories open, citing specifically the unions at Ellesmere Port. It was early in the morning, perhaps I missed something, but aren’t those the exact same super unions that organise in the public sector?
A colleague told me of a strange lunch she was “treated” to in the IoD’s swanky brasserie at its Mayfair headquarters. The brasserie was used as a set for the Batman film the Dark Knight, in which the Joker is bent on turning Gotham on itself.
Time to return these clowns and their lunatic ideas back to Arkham Asylum.
Victoria Phillips is head of employment rights at Thompsons Solicitors
The Thompsons Solicitors weekly blog
Fees for pursuing employment tribunals are expected to come in at the end of July, though a letter to stakeholders from the Courts and Tribunals Services is vague about the date and whether the systems will be ready.
In fact, now that the Enterprise and Regulatory Reform Act has passed into law, there’s a long list of employment law changes that the government has yet to give clear implementation dates for [see this week’s LELR weekly].
A consultation on how the fees remission system will work in practice was expected last autumn but has only recently opened. It closes on 16 May.
The government’s stated aim is that through fees it will achieve 100% recovery of the costs of running the system. Given that targets below full cost recovery have already been agreed with the Treasury, I wonder what the point of consultation on fees remission is?
Not that many claimants will qualify under the government’s proposals anyway.
If an applicant has too much “disposable capital” there will be no remission and no need to consider income levels. Disposable capital includes such things as jointly held capital, ISAs, savings and redundancy payments. The test has been set to “prevent fee remissions being paid to wealthy individuals”.
An individual or a couple with savings of as little as £3,000 will be expected to pay up to a third on fees. This rises to a half for those with £8,000 put away for leaner times. Nothing is said about the practical problems of liquidating capital assets within the three-month time limit for lodging a claim.
An applicant who passes the disposable capital test is then subject to an income test, which is now based on gross monthly, not annual income. No explanation is given for this, nor for the fact that the income threshold is being slashed at the same time.
A single person’s lower threshold remains at about £13,000, but a couple’s threshold drops from £18,000 to £15,000 – a mere £2,000 above that of a single person. The minimum wage for one person working 40 hours a week is just under £13,000. So is the majority of the population “wealthy” on this analysis?
A partner’s income is taken into account on the basis that “both the applicant and their partner gain financially or otherwise from the use of a court or tribunal”. Income levels must be proved by showing their last three months bank statements.
No account is taken of the fact that those claiming unfair dismissal or unlawful deduction from wages will no longer be in receipt of the income those statements show.
And if you want to retrospectively claim a remission you must do so within two months – so there’s not much chance to produce three months of post-dismissal bank statements.
These proposals have nothing to do with making the wealthy pay, or saving the taxpayer money. As we have come to expect from this government, the bar to qualify for remissions is being set so deliberately high that it will simply deter people pursuing legitimate employment tribunal claims, denying access to justice to those who need it most.
Victoria Phillips is head of employment rights at Thompsons Solicitors
The Thompsons Solicitors Weekly Blog
It’s been a dismal week for health and safety and rights at work.
On Monday the House of Lords voted to change the law which makes employers automatically liable for breaches of health and safety regulations, meaning an injured worker cannot rely on that breach as evidence of negligence in any claim for compensation [see this week’s LELR for more details and Thompsons’ response].
And on Wednesday peers accepted the government’s assurances on its deeply flawed shares for rights scheme.
I had been following both amendments – the Enterprise and Regulatory Reform and Growth and Infrastructure Bills – as they pinged and ponged between the chambers. It was impossible not to have admiration for the Lords’ determination to see them off – perhaps constitutional reform wasn’t so urgent.
But the law in place since 1898 to protect workers, and which went on to be enshrined in the Factories Acts, was wiped out at 11.30pm because there were just too few peers left to vote the government’s amendment down.
The calling of last trains, bed and cocoa overcame the need to prevent workplace health and safety returning to the standards of Victorian England.
And then the ever-strengthening cross-party and cross-bench opposition in the Lords to Osborne’s ill-conceived and offensive plan to deny fundamental employment rights to certain workers melted away with a number of concessions, including on the need for individuals to receive independent legal advice.
So I am again firmly behind modernising our constitution.
The last ditch changes to shares for rights were in addition to earlier protections dragged out of ministers by MPs and Lords, including for jobseekers and for others who refuse the employee-shareholder status.
But the scheme remains open to abuse by employers determined to try to get something for nothing. It does not herald a great advance in share-holding democracy, whatever is claimed from the rostrums at this year’s Tory and Lib Dem party conferences.
Victoria Phillips is head of employment rights at Thompsons Solicitors
The weekly Thompsons Solicitors blog
Although the government’s proposed changes to the TUPE regulations will benefit employers and employers alone, there’s little evidence that they actually want them.
At a recent meeting of the influential Westminster Policy Forum, a number of representatives from City law firms – employers’ lawyers – said there was no appetite among bosses for the reforms.
And for good reason. Employers appreciate the certainty that the 2006 amendments relating to service provision changes (SPCs) – which happen when work is outsourced, taken back in house, or when the contractor providing the work changes – afford.
Certainly, no clamour for change emerged from the BIS call for evidence on the issue last year. The majority of respondents wanted to retain SPCs.
Our response to the TUPE regulations consultation, reported in this week’s LELR points out that until 2007 there was a steady stream of appeals to the Court of Appeal, and even to the Court of Justice, dealing with the fundamental issues relating to whether there had been a transfer under the 1981 version of TUPE.
But the introduction of SPCs in 2006 changed all that. There have been a handful of appeals to the employment appeal tribunal, but the existence of SPCs has greatly reduced the scope for dispute as to whether TUPE applies.
Inevitably, that’s a problem for this business burden obsessed government. As with its resolve to remove strict liability from health and safety laws because they provide certainty over an employer’s responsibility for a workplace accident caused by a breach of the regulations, it is determined to free up employers to try to circumvent the TUPE rules.
That doing so will mean more litigation and cost for employers seems not to have occurred to ministers, though it has to businesses – hence their support for the status quo.
Appallingly, the government’s justification is that, anecdotally, employers have been seeking legal advice on how to avoid TUPE or at least mitigate its effects. There’s no evidence this is widespread, and the comments of the City boys this week would imply it isn’t.
There will always be employers who try to get around the rules. It’s what keeps union reps and union lawyers so busy. But it doesn’t mean the rules are wrong, anti-competitive, damaging to the economy or a deterrent to employing people.
Neither does it mean that businesses who want to be free not to respect workers’ rights are entrepreneurs while everyone else is in hock to employment lawyers, as was implied by business minister Michael Fallon during last Tuesday’s Commons debates on the equally illogical shares for rights scheme.
Victoria Phillips is head of employment rights at Thompsons Solicitors
Ministers have hit on a new way of slipping attacks on working people past us. Make the consultations so confusing that not even us lawyers (I am not being ironic) can be sure what they mean.
A recent meeting of colleagues fell momentarily silent when one asked if anyone shared his reading of a DWP consultation about amending the TUPE pension protection regulations.
TUPE and pensions, a brilliantly baffling combination. So when a DWP press release claims it simply wants to clarify the 2005 regulations to reflect the original intention of enabling the member to choose their rate of contribution, it’s tempting to accept it’s as innocuous as that.
But my colleague was right to read the proposals differently. The reality is the proposals will remove significant rights from employees in occupational pension schemes who transfer under TUPE to another employer.
The government appears to be trying to over-ride primary legislation that obliges the new employer to make contributions to the money purchase scheme (MPS) of a transferring employee.
We’ve been cautiously generous in our response to the consultation, which is reported in this week’s LELR. We ask if the government really intended the amendment to the pension protection rules to enable transferee employers to not pay into a MPS if the transferor was, for example, on a pension holiday at the time of the transfer.
We “doubt” if the amendment was meant to allow the new employer to say to an employee that because at the time of the transfer they didn’t have enough accrued service to join the MPS, they can never join the MPS.
We’d like to think it’s all a mistake, a drafting error that the DWP will correct by withdrawing the amendment. If it doesn’t it will confirm our reading, and that the government is again reducing workers’ rights under the guise of endowing them.
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Victoria Phillips is head of employment rights at Thompsons Solicitors
If the Department of Work and Pensions can’t get it right when shedding staff, then no wonder the government is making it easier to sack workers. It claims that employment laws are a burden on business and that employers are scared to take people on for fear of facing an employment tribunal should they later want to get rid. But the case of the Public and Commercial Service union members who last week won their right to redundancy payments should tell ministers, both as policy makers and employers, that simply applying plain common sense should keep them out of the courts.
Employment legislation exists to protect employers as well as employees. Regulations are not, on the whole, difficult to understand. Get it right, or just admit when you’ve got it wrong, and you won’t have to pay significant lawyers’ costs for the pleasure of having an employment tribunal judge explaining why you got it wrong.
The DWP’s refusal to pay redundancy payments to Jobcentre Plus workers whose fixed term contracts had ended was always difficult to fathom. Its lawyers argued throughout that the JCP workers were dismissed because their fixed term contracts had not been renewed, not because it was a redundancy situation. Yet the law is clear: if an employer decides it needs fewer employees of a particular kind to carry out work, the reason for the dismissal is redundancy.
As the employment tribunal judge concluded, there were “no distinguishing factors” to disapply the decision of the Court of Appeal in a similar case involving a lecturer whose fixed term contract was not renewed.
In that case (known as Lee), the appeal court ruled that the decision of the college not to renew the claimant’s contract because it had less need for lecturers was a redundancy situation. Just because it was known that the contract would not be renewed did not alter that.
And so the same was always, in our view, going to apply in the JCP cases. In 2010, as a direct result of coalition cuts, there was a freeze on civil service recruitment and no extension of fixed term contracts without ministerial permission. Some limited extensions were granted over the following months, but the need to reduce headcount remained and both the lead claimants in the case – Ms Fanis and Ms Ricciardi - were eventually dismissed when their contracts were not renewed.
Thousands of other fixed term employees suffered the same fate in order that the DWP could meet head count reduction targets set by ministers. To argue that this was not a redundancy situation showed either a determination to ride roughshod over fixed term workers’ rights, or was just plain stupid.
Read more about the PCS fixed term contract case in LELR weekly
Click on the image to access the full Thompsons Labour and European Law Review
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