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The Range of Reasonable Responses Newsletter September 2018

I left education more than a quarter of a century ago, but September still feels like the start of term to me. Actually, since no-one seems to want any training done in August, my working patterns do seem to mirror the academic year. This autumn I am travelling to Blackpool, Leeds, Manchester, Birmingham, Cardiff, Exeter London and Jersey - as well as a few places in-between - talking about the latest developments in employment law. Luckily every autumn there are always loads of new cases to talk about. If you were lucky enough to be away over the summer - or just too hot to pay attention - here are some of the developments you might have missed.

Working Time and the Minimum Wage

Probably the most momentous decision of the summer was Royal Mencap Society v Tomlinson Blake in which the Court of Appeal held that care workers who are required to 'sleep over' for certain shifts at their place of work are not actually working when they are asleep  - with the result that that time does not count towards their minimum wage entitlement. It is a complicated decision focussing on the so-called sleepover exception in the National Minimum Wage Regulations 2015 that emphasises the policy debates that took place when the Minimum Wage was first introduced. At that time the view of the Low Pay Commission was that a worker given adequate sleeping facilities should not be viewed as working when actually asleep. The Government of the day clearly agreed - but it is not clear that this policy was actually reflected in the legislation. 

It may seem obvious that someone who is actually unconscious cannot also be working - but I am not so sure. Care workers who are spending the night at work ready to deal with any issues that might arise are not free to simply do as they please. They are giving their time to the service of the employer, and the effect of the Court of Appeal's decision is that they can be required to give that time for free. Can that really be right? I go into more detail about why I think this decision is wrong in my monthly Perspective piece for XpertHR (paywall) . I would also recommend a blogpost by LJB Hayes of Cardiff University which takes the Court of Appeal to task for misunderstanding or even misrepresenting the nature of care work .

Unison has applied for permission to Appeal to the Supreme Court and I would expect permission to be granted. The decision that results is likely to become the leading authority on the nature of work.  

Disciplinary hearings and the right to be accompanied

The EAT has caused a bit of a stir in Talon Engineering Ltd v Smith upholding a Tribunal's finding of unfair dismissal. The employee was invited to a disciplinary hearing but her chosen union representative was unavailable and she proposed a new date almost two weeks later. The employer refused to postpone and the employee refused to attend without her representative. In the end the hearing went ahead without her and she was dismissed. 

The Tribunal found that a reasonable employer would have agreed to the postponement and found that the dismissal was unfair. The EAT agreed. Two things about the decision stand out as controversial. The first is that the statutory right to be accompanied provides for the employee to postpone a hearing in the event of a representative being unavailable for a maximum of five working days. The employee in this case was proposing a longer postponement but the Tribunal did not consider that issue. The EAT saw no problem with that as the right not to be unfairly dismissed is completely separate from the right to be accompanied. 

That may be so, but it seems harsh not to even consider compliance with the right to be accompanied as at least a factor to be considered. An employer looking at the Acas Code of Practice or the accompanying guide will just be told that it should allow a five-day postponement. There is no suggestion from Acas that the employer may need to go beyond this. 
The other issue is the effect of the employee refusing to attend. The EAT held that she could not be criticised for this and agreed with the Tribunal that it was unfair of the employer to proceed in her absence. My worry is that this seems to give an employee a veto over attending a hearing if the arrangements aren't to his or her liking. There was no consideration in this case of whether the employee could have had a fair hearing even if she did not have her first choice of representative. 

I suspect I will be talking a lot about this case up and down the country in the coming months. I will also be discussing it in an XpertHR podcast coming out in early October. I will try not to rant too much. 

Parental Bereavement Leave

The Parental Bereavement (Leave and Pay) Act 2018 was given Royal Assent on 13 September. It gives parents who suffer the loss of a child a right to two weeks' paid leave. The details of the scheme will be set out in Regulations and will it seems bear a marked similarity to the current right to take two weeks' paid paternity leave - with pay set at the same rate (currently £145 per week). As with maternity and paternity pay, employers will be able to recoup payments from the state and as a result the legislation is likely to be just as complicated. It is expected to be 2020 before the new scheme is actually in place. 

One thing to watch out for is the evidence that will need to be provided to allow the employer to claim back the money paid to bereaved parents. This is likely to be an upsetting process for the employer as well as being devastating for the employee concerned. The last thing we need is a bureaucratic form-filling exercise to reclaim a very modest payment. In particular I hope the Government does not ask employers to request the death certificate of the child concerned. 

There really is no need for this. The Government estimated that about 8,000 people a year would qualify for the new right- and most of them are likely to have employers who would already give them a period of paid compassionate leave or fully paid sick leave. Why not just give bereaved parents a right to two weeks fully paid leave paid for by the employer?  The law would be much more straightforward, parents would be better off and the extra burden on employers would be tiny,  


TUPE - Changing terms and conditions

One of the trickier areas of the Transfer of Undertakings (Protection of Employment) Regulations 2006 is the restriction on changing terms and conditions (Reg 4(4)). Many people make the mistake of thinking that you can't change terms after a TUPE transfer, whereas the truth is simply that the transfer itself should never be the reason for the change.  In this ever-changing world in which we live, there are a huge number of reasons why an employer may want to agree a variation of an employee's contract. 

A good example of this is the recent EAT decision in Tabbera v Mears Ltd In that case a group of employees had originally worked for Birmingham City Council but found themselves working for Mears Ltd after a series of TUPE transfers. part of their package of pay and conditions included a travel time allowance. That had been paid since 2008 to compensate electricians for the loss of productivity bonus caused by having to travel between different depots. By the time Mears Ltd became the employer, however, those productivity bonuses had been phased out and all but one of the depots had closed. Electricians were being paid an allowance for travel they no longer did, because of its effect on a bonus that no longer existed.

The employer issued notice to its employees that the allowance would no longer form part of their terms and conditions in 2012. In response a group of employees brought claims for unlawful deductions from wages. 

The Tribunal found in favour of the employer, holding that the change was not based on the TUPE transfer but the fact that the allowance was outdated and no longer appropriate. The EAT agreed. The fact that the employer was only faced with having to pay this allowance because of a TUPE transfer did not mean that the decision to bring it to an end was TUPE-related. It was important not to confuse context with reason.

One odd feature of the case that neither the ET nor the ET seem to have addressed is whether the employer succeeded in varying the contract. If you have a contractual obligation you cannot generally vary it by simply announcing that it no longer applies. A contract is an agreement - and it takes an agreement to vary its terms. Perhaps the EAT does not go into full detail about how the change came about - but employers should not see this case as an example of how to vary contracts of employment. 

Parish Notices

On 26 September I'm looking forward to speaking at Central London CIPD on the latest case law on employment status. The event is sold out, but I will try and find a way of making my presentation available to newsletter subscribers. The same goes for a keynote session on TUPE that I'll be doing on 1st October at Daniel Barnett's annual conference for his HR Inner Circle.

For a more general employment law update I'm speaking at West London CIPD on 11th October and then a full day's session for West Midlands Employers on 19th October.
I'm getting a bit behind on podcasts - but you can listen to the latest on Webb v Emo (a key pregnancy discrimination case) here. on 1st October. I hope to get another done in the next week or so, so stay tuned. 
Thanks again for subscribing. 
Copyright © 2018 Darren Newman Employment Law Ltd, All rights reserved.

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