Tees Esk & Wear Valleys NHS Foundation Trust v Harland – WLR Daily

Tees Esk & Wear Valleys NHS Foundation Trust v Harland UKEAT/173/16

‘The claimants, nursing assistants, were employed by the trust as part of a designated team of 27 people providing specialist care to C, who had severe learning difficulties, in his flat. When C’s condition improved and fewer carers were needed to look after him the team was reduced to 11 people, who also provided care to other disabled people living in flats in the same building. The contract to provide care to C was subsequently taken over by a healthcare company and the trust nominated those members of the team who had spent the greatest proportion of their working time looking after C to transfer to the company. The claimants were unwilling to transfer and left to take other posts or were made redundant. On their complaints of unfair dismissal an employment judge considered as preliminary issues whether there was a relevant transfer within the meaning of regulation 3(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and whether the claimants had been assigned to an organised grouping of employees prior to the transfer, such that there had been a service provision change in accordance with regulation 3(1)(b). The tribunal found that the trust had initially put together an organised grouping of employees which included the claimants with the principal purpose of the care of C but as C recovered and the number of hours needed for his care was reduced the principal purpose of the group became subsidiary to the dominant purpose of providing care to other disabled people in the building and, accordingly, at the time of the transfer from the trust to the company the requirements of regulation 3(3)(a)(i) were not satisfied and there was no service provision change. The tribunal concluded that as there was no relevant transfer the claimants had been at all times employed by the trust.’

WLR Daily, 3rd March 2017

Source: www.iclr.co.uk

BT reaches deal with Ofcom to legally separate Openreach – The Guardian

Posted March 10th, 2017 in competition, news, pensions, telecommunications, transfer of undertakings by sally

‘BT has finally reached an agreement with Ofcom to legally separate Openreach, which controls the UK’s broadband infrastructure.’

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The Guardian, 10th March 2017

Source: www.guardian.co.uk

Transferring the blame? – New Law Journal

Posted October 31st, 2016 in employment, news, transfer of undertakings by sally

‘John McMullen examines the conditions of TUPE.’

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New Law Journal, 28th October 2016

Source: www.newlawjournal.co.uk

Employment law: Post-Brexit – OUP Blog

Posted August 30th, 2016 in EC law, employment, news, referendums, regulations, transfer of undertakings by sally

‘The Leave vote in the EU referendum presents several potential challenges for employers which are of far more immediate and practical importance than speculation about the future direction of employment law in a post-EU environment. An issue over which a considerable amount of ink has been spilled, both before and after the referendum. These challenges include how employers should best seek to manage employee uncertainty and anxiety about the possible impact of the Leave vote on their business; how economic uncertainty will affect recruitment policy, perhaps pushing employers towards more temporary and agency and less permanent recruitment; the impact on employers’ ability to attract and retain skilled staff from overseas of potential changes to immigration laws as part of Brexit; how to reduce the risks of increased disputes in the workplace based on differing views of the merits of Brexit; and ensuring that any relocations or restructurings that the changed climate necessitates are handled so as to minimise exposure to claims. As the UK proceeds with the process of extracting itself from the EU, the impact on free movement and immigration laws will also be crucial for many employers.’

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OUP Blog, 30th August 2016

Source: www.blog.oup.com

EAT: workers must be engaged in ‘principal purpose’ immediately before TUPE transfer – OUT-LAW.com

‘Whether a group of workers consists of an “organised grouping” which will automatically transfer to a new service provider when the work that they do is taken over by that provider will depend on their activities “immediately before” the transfer, the Employment Appeal Tribunal (EAT) has confirmed.’

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OUT-LAW.com, 17th June 2016

Source: www.out-law.com

Filling the void: the Brexit effect on employment law – OUP Blog

‘Having been cast as unnecessary “red tape”, a burden on business, inflexible, uncompetitive and inefficient, it is widely assumed that a sizeable number of domestic employment laws derived from European Law will be in the firing line in the event of a Brexit. In a well-publicised written opinion produced for the TUC, the leading labour law barrister, Michael Ford QC, has provided some support for this assumption. He noted the vulnerability of these EU-derived employment rights and labour laws, and divided and categorised them according to whether a future UK government would be likely to repeal, dilute or preserve them. In this blog, I will probe what might fill any void created by the removal of employment rights rooted in EU law. Surprisingly, the common law would appear to have as significant a role to play as domestic legislation in this context. The potential involvement of the common law is somewhat paradoxical, particularly in light of its perceived ‘undemocratic’ credentials, it being a source of law crafted incrementally by unelected judges.’

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OUP Blog, 7th June 2016

Source: www.blog.oup.com

Service Provision Changes and Multiple Organised Groupings – Littleton Chambers

‘Nicholas Siddall analyses the recent decision of Simler J(P) in Arch Initiatives v GMW Mental Health NHS Foundation Trust & Others [2016] UKEAT/0267/15/RN and seeks to analyse the wider importance of the decision.’

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Littleton Chambers, 5th April 2016

Source: www.littletonchambers.com

EAT: employee on ‘permanent’ sick leave did not transfer to new employer under TUPE – OUT-LAW.com

‘The job of a telecoms engineer on long-term sick leave with little prospect of returning to work did not transfer to a new employer as he was not “assigned” to the team when the team he worked as a part of was transferred to another service provider, the Employment Appeal Tribunal (EAT) has confirmed.’

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OUT-LAW.com, 7th September 2015

Source: www.out-law.com

Asset acquisitions revisited – Competition Bulletin from Blackstone Chambers

Posted September 2nd, 2015 in appeals, bankruptcy, mergers, news, transfer of undertakings by sally

‘Earlier this year, I suggested that the law on when an asset acquisition might amount to a merger was somewhat opaque. The Court of Appeal’s decision in Eurotunnel II [2015] EWCA Civ 487 has brought some additional clarity, although the messy procedural history of that case has caused its own problems.’

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Competition Bulletin from Blackstone Chambers, 1st September 2015

Source: www.competitionbulletin.com

Assignment and Ignored Instructions – Littleton Chambers

Posted July 25th, 2015 in assignment, news, transfer of undertakings, unfair dismissal by sally

‘It has long been accepted that the issue of whether an employee is “assigned” to an undertaking or part of an undertaking (and thus is subject to a relevant transfer for the purposes of the TUPE Regulations 2006) is a difficult and multifactorial question the outcome of which can often be difficult to predict.’

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Littleton Chambers, 18th July 2015

Source: www.littletonchambers.com

University and College Union v University of Stirling – WLR Daily

University and College Union v University of Stirling [2015] UKSC 26; [2015] WLR (D) 188

‘An employee was dismissed as redundant for the purposes of an employer’s duty to consult about proposed collective redundancies if the reason for his dismissal was not something to do with him—such as something he was or something he had done—but was a reason relating to the employer, such as his need to effect business change in some respect.’

WLR Daily, 29th April 2015

Source: www.iclr.co.uk

TUPE and Property Management – Tanfield Chambers

‘It is well known that where the management or ownership of property passes from one company to another, the employment of staff engaged in property management or maintenance may transfer with it under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). However, it is not unusual for several different managed service contracts simultaneously to transfer from one contractor to another or for a number of sub-contracted maintenance contracts to be taken in-house by a property management company. A recent case has considered how TUPE applies in these circumstances involving multiple contracts.’

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Tanfield Chambers, 27th April 2015

Source: www.tanfieldchambers.co.uk

‘Unfair’ dismissal of full-time mayor from role at a school could be justified, says EAT – OUT-LAW.com

‘A former member of staff at a school in Merseyside was not entitled to compensation when he was dismissed from his role, as his full-time work as the elected mayor of Liverpool was incompatible with him continuing as an employee, the Employment Appeal Tribunal (EAT) has ruled.’

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OUT-LAW.com, 17th April 2015

Source: www.out-law.com

Academy terminating prior arrangement – Education Law Blog

‘In Anderson v Chesterfield High School UKEAT/0206/14/MC, Mr Anderson is currently the elected Mayor of Liverpool. This is an executive post and regarded as full-time. The position carries with it an annual allowance of almost £80,000. He had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately £50,000.’

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Education Law Blog, 16th April 2015

Source: www.education11kbw.com

Welcome relief – New Law Journal

‘Ian Smith reports on basic & immutable problems of employment law that require complex answers.’

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New Law Journal, 17th February 2015

Source: www.newlawjournal.co.uk

TUPE: property manager was ‘organised grouping of employees’, Court of Appeal rules – OUT-LAW.com

Posted February 18th, 2015 in appeals, news, transfer of undertakings, unfair dismissal by sally

‘A single employee responsible for the management of a company’s property portfolio in the Netherlands was an “organised grouping of employees”, covered by UK employment law protections when the service she provided was outsourced to another company.’

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OUT-LAW.com, 17th February 2015

Source: www.out-law.com

The Duty to Inform and Consult under Regulation 13 of TUPE – Tanfield Chambers

‘The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) have provided a wide range of case law since they came into force. Decisions have often been focused on issues such as what constitutes a relevant transfer or the effect ofinsolvency on a transfer. However, there has been surprisingly little case law which deals with the Regulation 13 TUPE duty to inform and consult and the Regulation 15 TUPE claim to a tribunal for a failure to inform and consult.’

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Tanfield Chambers, 16th October 2014

Source: www.tanfieldchambers.co.uk

Timing of a TUPE transfer determined by facts, not wishes or intentions of parties, says EAT – OUT-LAW.com

‘The point at which the new employer becomes responsible for the workers who have been transferred under TUPE rules is a question of fact, not the wishes or intentions of the parties, the Employment Appeal Tribunal (EAT) has confirmed.’

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OUT-LAW.com, 22nd August 2014

Source: www.out-law.com

Additional travel time for transferred workers was not “substantial change” to their “material detriment” – OUT-LAW.com

‘A change in the working location of somebody who has changed employer through TUPE will only be grounds for a constructive dismissal claim if that change is “substantial” and causes “material detriment” to the worker.’

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OUT-LAW.com, 26th August 2014

Source: www.out-law.com

Requirement to work in different location not pre-2014 TUPE “workforce” change, says EAT – OUT-LAW.com

‘Employees who were required to work in a different location after their work was outsourced were not exempted from legal protections aimed at such workers under pre-2014 rules, the UK’s employment appeal tribunal (EAT) has ruled.’

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OUT-LAW.com, 21st May 2014

Source: www.out-law.com