Bright light!

Employment Law Newsletter - April 2017


In this issue ...

  Come along   The net keeps closing  
  Selecting in – not a free for all   Can't be too nosy  
  A rare beast   You've only got one shot  
  It takes more than that!  

Come along

Yes, it's that time of year again – Employment Law Update time, when the new, 2017-2018 edition of our Employment law for line managers is also released!

You may well have received your invitation already. If you have, this is a reminder. If you haven't, and in case you don't, this is to let you know that the dates (the second providing such an ideal opportunity to keep out of the way on General Election day that it is already fully booked) and venues are:

Tuesday 6th June – Holiday Inn, Manchester

Thursday 8th June – Novotel London City South (full)

We are keeping a waiting list for the London event. Any places that become available will be allocated to the list in the order that it was joined.

For more information and/or to sign up, click here

If you are lucky enough to have a place but you no longer need it please let us know so that we can offer it to someone else.


Selecting in – not a free for all

Over the years (for example, see Morgan v WRU in April 2011 and Samsung v Monte D'Cruz in April 2012), this newsletter has highlighted rulings from the Employment Appeal Tribunal (EAT) to the effect that the process of selecting redundant employees for retention in new posts is not as rigidly policed as that of selecting them for redundancy from their original roles (where the time-honoured Williams v Compair Maxam considerations apply). We have always been careful to add the rider that the EAT was not suggesting that wholly arbitrary or loaded procedures or decisions would be acceptable.

Now, in Green v London Borough of Barking & Dagenham, the EAT has illustrated that rider, referring back for re-consideration in the employment tribunal a case in which the claimant had unsuccessfully challenged the fairness of her dismissal for redundancy on the basis that the nature of her employer's written selection test unnecessarily favoured another candidate. While accepting that the language of the Compair Maxam principles could be difficult to apply to 'selecting in' situations, the EAT was clear that Morgan should not be elevated to an unbending rule of law that would compromise the requirement of reasonableness in all dismissal procedures and allow an employer to get away with a defence effectively described as 'knowing what it was looking for'. It also pointed out that such an undemanding standard would encourage employers to disguise or confuse what were really 'selecting out' situations as 'selecting in' ones (as it thought was the case in Green itself).

So, what changes? In fact, not too much. First, be clear that there is, truly, a new role for which fewer employees are needed (that is, that you have a 'selecting in' situation on your hands). Secondly, give thought to the reasonableness of the testing or criteria that you apply to choose the successful candidates – quantification or scoring may not be vital, but basic fairness and consistency will be.


A rare beast

After a long absence, TUPE made a return to these pages in the March 2017 edition. Now on a roll, for this month it has produced a case on one of its less well-charted aspects – Employee Liability Information (ELI). This is the bit that, unusually for employment law, does not concern itself directly with the rights enforceable by employees but instead focuses on inter-employer responsibilities – specifically, a duty on the transferor employer to provide the transferee with detail from the contracts of the employees who will be moving over.

But how far does the duty extend? That was the question in Born London v Spire Production Services, where, in its ELI given to the transferee, the transferor omitted to mention the employees' contractual entitlement to a Christmas bonus. The EAT held that there had been no infringement of the ELI rules, as the legislation requires only that, from contracts, the information cover items necessary for the written statement of employment particulars that must be given to all employees on commencement of employment. Bonuses, even contractual ones, are not within that category.


The net keeps closing

It's difficult to stay away from the subject of employment status at the moment (see every issue back to November/December 2016) as, despite the news that the EAT will hear Uber's appeal in September, the arcane employment arrangements of the gig and similar economies continue to get short shrift.

In Boxer v Excel, albeit only on the basis of the claimant's uncontested evidence (the company having gone into administration), an employment tribunal found that a courier was a 'worker' rather than the formally-proclaimed self-employed contractor.

The Taylor Review has turned its attention to zero-hours contracts. It is contemplating endorsing a proposal that legislation should require employers wishing to put workers on standby and short-notice work arrangements to pay a premium rate for the privilege.

Meanwhile, the Work and Pensions Select Committee has attacked the almost impenetrable terminology of Deliveroo's contracts with food delivery riders and specific clauses that require them to agree their stated 'self-employed' status and not to challenge it in the tribunals. Moreover, 'The Guardian' has recently highlighted Deliveroo's instructions to managers on how to talk to or about the riders. This 'internal lexicon' is designed to minimise the chances of the riders' being able to establish worker or employee status. Many years ago, we worked on developing the same kind of thing for clients using 'casuals' – doesn't look like it would hold water now.


Can't be too nosy

Here are a couple of cases on what is necessary in the context of indirect discrimination.

First, to establish that an employer's 'provision, criterion or practice' (PCP) puts the group to which the claimant belongs at a particular disadvantage relative to others, is it necessary to identify the specific reason for that effect? In Essop v Home Office/Naeem v Secretary of State for Justice, the Supreme Court says 'no' – all that is required is for the causal connection between PCP and differential consequences to be established. Nor does the PCP have to affect adversely every member of the disadvantaged group.

Meanwhile, in Harrod v West Midlands Police, an age discrimination case about the approach taken to effecting cutbacks, the Court of Appeal (CA) has looked at the employer's justification (to give it its full name, 'proportionate means of achieving a legitimate aim') defence to a claim of unlawful indirect discrimination. By analogy with the rules for assessing unfair redundancy dismissal claims (where a tribunal cannot examine the employer's economic basis for choosing closure or reductions), it has ruled that a pleaded defence should not fail because there might be another aim the employer could have pursued that would have had a less discriminatory impact than the chosen one. The CA also decided that nothing important hung on individual words - a PCP was best treated, compositely, as a PCP and there is little to be achieved by trying to identify a 'provision' as opposed to a 'criterion' or a 'practice'.


You've only got one shot

As well as being mandatory for presenting a tribunal claim, Acas conciliation is generally deemed a good idea. And you can't get too much of a good thing, right?

Well, in one sense, you can, according to the EAT in HMRC v Serra Garau. It held that whatever the effect of a first early conciliation certificate on the limitation period for presenting a claim (and it set down the principle that a certificate issued before the date of termination, as in Garau's case, did not extend the limitation period), a rare, 'voluntary' second early conciliation phase and certificate in respect of the same matter (again, as in Garau's case) does not extend the time limit for presenting a claim of unfair dismissal.


It takes more than that!

In Kent Police v Bowler, the EAT has pointed out that, in and of itself, the incompetent and lackadaisical handing of a grievance (about the failure to get promotion) is not sufficient to raise an inference that there has been discrimination (in this case, racial). To take the important step of inferring discrimination – which then puts an employer to the task of providing a non-discriminatory reason for its actions – a tribunal must have more.


Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.