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Employment Law Newsletter - March 2013


Assessing what it all means

Now here's a decision to be understood clearly. The short, simplified headline for the decision of the Employment Appeal Tribunal (EAT) in Mental Health Care (UK) v Biluan is about assessment centres not being an appropriate approach for redundancies. And, in the context of the case, an assessment centre was found to be an unreasonable approach, certainly on its own. The employer, part of the beleaguered Castlebeck group, had to make redundancies in a residential hospital following the closure of a ward. Eschewing the approach of simply dismissing those staff principally associated with that ward, managers instead elected to select 19 people for redundancy from the hospital's entire nursing and support team. The only element of the criteria that focused on performance/ability was scored wholly by reference to the results of an assessment centre, which took no account of past appraisals. Employees' line managers were not asked about past performance. The resultant dismissals were found to be unfair - no reasonable employer would have adopted such a narrow and blinkered approach to employees' qualities.

However, the proper use of assessment centres should not be discounted as a consequence of Biluan. First, as the decision itself acknowledges at least implicitly, if 'past performance' had been given equal credence alongside the results from assessment, the approach would have been a reasonable one for reducing the number of people in existing job types. Second, as we have mentioned before, if a redundancy situation arises because of the redundancy of old job types and the creation of significantly new job types, the law allows more flexibility for employers in selecting which (already) redundant employees should be offered the new roles.


Don't look back?

In Davies v Sandwell Council, the point for consideration by the Court of Appeal (CA) was the extent to which an employment tribunal considering a 'non-gross misconduct' disciplinary dismissal can 'go behind' earlier warnings given to the employee that contributed to the decision to dismiss. And the outcome is good news for employers. The CA's ruling was that, although there could be exceptional situations where an earlier warning was deprived of any weight, those would not arise if the employer had issued it in good faith and there were prima facie grounds for it. If that was the case, it would not be relevant if the (ex-)employee asserted that there were other things that the employer should have investigated at the time which would have exonerated him/her.


Watch out!

In Unison v London Borough of Barnet, the employer was caught by an easily overlooked requirement of the statutory rules on dealing with employees' representatives before a transfer under TUPE or large-scale redundancies. Since October 2011, both regimes have required an employer to include, in its 'starting information' to representatives, data on the number of agency workers under its supervision and direction, the parts of the operation where they work and the type of work they do. In this case, the employer's failure to comply (because it used agency workers) attracted a protective award. For the 'redundancy consultation' breach (where the consequences were deemed potentially more serious than for the purposes of TUPE), that award was for 60 days' pay per affected employee.


Is anybody excited?

New Regulations increasing the statutory entitlement to parental (not maternity, paternity or adoption) leave to 18 weeks per child took effect on 8th March 2013. The significance of the change, prompted by a Directive of the EU, is questionable. The leave is unpaid and, if our experience is anything to go by, is rarely used by employees - and rarely the subject of any great debate when it is.


Standing ready

ACAS has announced that the new system for mandatory, 'pre-claim' conciliation should be underway in April 2014. Of course, that should be read as a statement of preparedness rather than a declaration and should, technically, come with the caveat 'subject to Parliamentary approval', since the scheme is contained in the Enterprise and Regulatory Reform Bill, which has not yet completed its legislative journey.


You can't totally hide behind the third party

It has long been established that a dismissal because of third-party (typically, client or customer) pressure will generally be potentially fair as being for 'some other substantial reason'. But, in Bancroft v Interserve, comes a reminder from the EAT that, to complete the fairness test, an employer must also have explored all reasonable options before terminating employment. Part of that process is, ultimately, considering options for redeployment 'away from the client'. But other elements, which the employer in Bancroft ignored, are to seek to forestall the breakdown in relations at an early stage and to try to persuade the client to change its mind about rejecting the employee (perhaps with safeguards in place). So, if you do send your employees out to work at third parties' sites, stay vigilant.


It's all in the mind

A recent study undertaken for the Department for Business, Innovation and Skills has looked at employers' perceptions of employment law. Predictably, there is quite a lot of wariness and misinformation out there, especially among smaller businesses. But there is a Don Quixote aspect. The view that legislation is a burden is driven less by adverse experience at tribunal than a simple fear of that outcome - and that fear is itself exacerbated by the prominence of the debate about deregulation. So, the answer's easy then, is it? Stop all this talk about freeing up business and employers will, as a consequence, become more relaxed. Hmm...

If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Richard Hendry 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.