Adrian Fryer
Many of you will have heard Angela Rayner’s recent remarks in which she explained the changes that the Labour Party propose to make to employment law in the event that they win the general election next year.
The proposals are radical to say the least, and, if enacted, would completely change the employment law landscape for years to come.
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Fintech business Lanistar’s latest bold initiative to boost recruitment has landed them in hot water. Effective recruitment strategies are not just about a business picking the best applicants, they are about attracting the best applicants in the first place. In this way, recruitment comparison websites like Glassdoor, which include company reviews from existing and former employees as part of their job search functions, can have a significant impact on the quality of applicants coming through the door.
The House of Lords have amended the Worker Protection (Amendment of Equality Act 2010) Bill to remove the proposed third-party harassment provisions. Following a debate in July 2023, the Bill has been republished with the original clause 1 (which dealt with third party harassment) removed in its entirety. Objections in the Lords included the cost to businesses, curtailment of free speech and worries about excessive state intervention in business.
In the recent case of Fernandes v DWP the Employment Appeal Tribunal allowed an appeal in a disability discrimination claim of failure to make reasonable adjustments. The key question was how you should ascertain when a ‘failure’ to make a reasonable adjustment occurs. It is important for this to be established because time begins to run for instituting a claim (by commencing ACAS Early Conciliation) from the point that the failure occurs.
Where one business purchases the business and assets of another business (or part of it) then this is likely to amount to a ‘business transfer’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). A business transfer under TUPE automatically transfers the contracts of employment of all assigned employees to the new employer. The transfer will be on a single date rather than over a period of time. In some cases, the date on which the transfer occurs will be obvious but in others where there are a number of transactions over an extended period of time it may be more challenging to identify the date.
In the recent case of Stevenson and others v Mid and South Essex NHS Foundation Trust the respondent had undertaken a restructure which had resulted in three Head of HR role being made redundant. The three employees occupying the redundant roles were offered alternative employment as HR Leads. When they refused these roles, the respondent refused to pay them a redundancy payment. The respondent alleged that they had unreasonably refused their offer of suitable alternative employment so had forfeited their right to a statutory redundancy payment under section 141 Employment Rights Act 1996.
In the recent case of Mullen v Greater Glasgow Health Board the claimant was dismissed from his role as supervisor for gross misconduct after an investigation found that he had threatened a fellow employee. The tribunal held that the respondent had carried out a full investigation and held a reasonable belief that the claimant had committed an act of misconduct but they nevertheless found that the dismissal was unfair. This was on the basis that the tribunal had its own ideas as to what the real reason for dismissal was.
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), whenever there is a relevant transfer (typically either a business transfer or a service provision change (outsourcing or insourcing)) from one business (the transferor) to another (the transferee), the employment of any assigned employees will move across to the transferee. All rights and obligations under or in connection with the contract of employment will also transfer to the transferee. Usually, these rights and obligations are easy to establish and continue – they will be set out in the relevant contracts of employment. However, in the recent case of Ponticelli v Gallagher the Scottish Court of Session was asked to decide whether the right to participate in a share incentive plan (SIP) which a transferring employee had been a member of prior to transfer and which was not referred to in the relevant employment contract, transferred to the transferee following a TUPE transfer.
The recent fast-paced developments in artificial intelligence (spearheaded by ChatGPT) has had workers across a wide variety of sectors looking nervously over their shoulders and considering the long-term impact this technology is likely to have on job security. In some areas, including administrative tasks and customer service, the impact is already clear to see. In others, it has, seemingly, yet to bite.
The government has announced plans to triple the maximum fine it can impose on employers who are found to have employed a person who does not have the right to work in the UK. Increased penalties are set to commence in early 2024. Fines for employers who employ illegal workers will increase from £15,000 to £45,000 for a first offence and from £20,000 to £60,000 per breach for repeat offenders.
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