Category Archives: Legislation

Special report: Employment – Winning the peace

This information has been provided courtesy of Hannah Gannagé-Stewart.

Employment lawyers are shifting their focus to non-contentious areas as the coalition promotes conciliation. On 6 April the latest in a raft of recent employment reforms was introduced, compelling prospective claimants to contact the Advisory, Conciliation and Arbitration Service (Acas) before lodging proceedings at the employment tribunal.

A month into the regime, which was made compulsory on 6 May, Acas reported that around 1,000 people have contacted it about the new ‘Early Conciliation’ process every week since its launch. It is not compulsory to use Acas, only to make it the first port of call. But according to the service’s report 98 per cent of those who have got in touch have opted to try early conciliation.
The moves are all part of a drive to encourage early settlement of claims and come partly in the wake of venture capitalist Adrian Beecroft’s highly controversial report on employment law in May 2012. Other changes include the introduction of employment tribunal fees, extending the period of time in which employees can bring a claim of unfair dismissal from one to two years and a reduction in the consultation period from 90 to 45 days.

For the full report please visit: http://www.thelawyer.com/analysis/market-analysis/practice-areas/employment-analysis/special-report-employment-winning-the-peace/3020265.article

Special thanks to Hannah Gannagé-Stewart.

Zero-hours contracts breed mistrust

This information has been provided courtesy of IBB Solicitors.

A new study has claimed that employees on zero-hours contracts are too afraid to search for a new job and feel excluded from the sense of security other full-time workers enjoy. The conciliation service Acas, which compiled the report, said it was receiving about 70 calls a week about zero-hours contracts, with a feeling of ‘effective exclusivity’ of being tied to one employer emerging as a major concern. Sir Brendan Barber, chair of Acas, said: ‘Our analysis reveals that many workers on zero-hours contracts experience a deep sense of unfairness and mistrust that go beyond the use of exclusivity clauses. A lot of workers on zero-hours contracts are afraid of looking for work elsewhere, turning down hours or questioning their employment rights in case their work is withdrawn or reduced.’

Barber added that the deep-rooted exclusivity can be very damaging to trust and to employer relationship. There also appeared to be a lack of transparency on contractual arrangements. He said: ‘Many people did not seem to even know that they were on a zero-hours contract and some believed they were on a permanent contract due to the length of their service.’ Acas has recommended new guidance on zero-hours contracts so that both employees and employers are very clear on the working arrangements they are agreeing to, in response to the government’s consultation into employee agreements in March 2014.

For the full report please visit: http://www.thelawyer.com/briefings/zero-hours-contracts-breed-mistrust/3020697.article

Special thanks to IBB Solicitors.

TUPE – What businesses need to know about the retention of employment model

November 1 2012 – The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) give domestic effect to the EC Acquired Rights Directive (ARD) on “the approximation of the laws of Member States relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of undertakings or business.”

In essence the underlying purpose of TUPE is to protect employee rights in the event of a transfer or service provision change. This is secured by the statutory novation of the employee’s contract of employment.

The RoE Model
The Retention of Employment model (RoE) was originally developed by the Department of Health (DoH) in response to UNISON campaigning several years ago on Private Finance Initiative (PFI) schemes. UNISON negotiated the RoE model as a means of limiting the number of non-clinical staff forced to transfer to the private sector from the NHS under PFI.

In summary the RoE model works as follows:

Stage 1
Employees opt-out of the transfer of their employment under regulation 4(7) of TUPE. The employees must be properly informed of their situation and be freely objecting (see Senior Heat Treatment -v- Bell [1997] IRLR 614, EAT). The objection can be given either to the transferor (generally the public sector employer) or to the transferee (the incoming private sector provider). A model Notice of Objection appears in the box below.

Stage 2
If employees opt-out under TUPE, their employment terminates immediately by operation of law and automatically on the date of the transfer. They have not been dismissed and are legally in the same position as if they had resigned.

Stage 3
However, under RoE the employees are then immediately re-employed by the public sector employer on the same terms and conditions of employment as they previously enjoyed with continuity of service preserved for all purposes, including pension rights.

Stage 4
The final stage in the RoE model is for the employees to be seconded to the private sector provider, but remain employed by the public sector employer. It may be necessary to change the relevant employees’ terms and conditions of employment to make express provision to allow for secondment.

Full article

Religious discrimination

16 January 2013 – The European Court of Human Rights has heard four cases of religious discrimination from the UK, of which three were found not to be violating the rights of the employee. However, the court ruled in favour of British Airways worker Nadia Eweida who was deemed to have had her rights violated under Article 9 of the European Convention on Human Rights.

HR experts Croner have advised employers to have robust, justifiable reasons for restricting the wearing of displays of religious faith such as crosses.
According to Liz Iles, Senior Employment Consultant at Croner:

“The decisions in the case of Eweida & Others v UK today shows that there must be a balance between an employee’s wish to display their religious beliefs and a sound rationale why they might be restricted.”

What this means in practice is that employers must have good justifiable reasons why, for example, employees can’t wear a cross at work. A good example of this is demonstrated by a connected case heard at the ECHR today. Nurse Shirley Chaplin was told by her employer that she couldn’t wear her cross around her neck as it posed a health and safety risk. This was held to be a legitimate justifiable reason.

“The ECHR decision in the case of Nadia Eweida was based on special circumstances, including the fact that a discrete cross would not have adversely affected British Airways’ public image.”

While these court judgements may be hard for bosses to interpret when making controversial decisions, for many employers it will make it easier to agree to employee requests rather than risk a complaint. However, employers are advised to explore all options available to them as alternatives when faced with an objection from an employee, especially as sensitive as one related to their religion or belief.

“What is not apparent in the ECHR decision is the position in relation to third parties. For example, it may be that a member of the public or a colleague might be offended by the display of religious faith and may themselves make complaints.”