Employment Rights Bill

Overseas workers: The Home Office and Department of Health and Social Care have announced plans to ban employers from recruiting workers from overseas where they have committed serious offences such as visa breaches or failure to pay the minimum wage. This provision is expected as an amendment to the Bill.

Case law update

TUPE: In an important TUPE case to start the New Year, the Employment Appeal Tribunal (EAT) has been considering where liability should rest where an employee does not want to transfer to a new employer due to proposed changes to their working conditions. This requires a careful analysis of the interplay between the right to object to a transfer (regulation 4(7)) and the right to treat the contract as terminated where the transfer involves a substantial change in working conditions to their material detriment (regulation 4(9)). The claimant, a bus driver, did not want his employment to transfer to a new employer under TUPE because of a significant change to his commute time to a new ‘base’ bus depot. He objected to the transfer and although he was offered alternative work by the transferor, he did not accept the terms offered. However, he neither resigned nor elected to end his contract due to the changes proposed by the transferee. The EAT’s surprising conclusion is that where there is an objection under regulation 4(7) in circumstances where regulation 4(9) applies, the objection does not act to terminate the contract of employment with the transferor on the date of the transfer, regardless of whether or not the employee elected to treat the contract as having ended. This meant the outgoing employer (transferor) was deemed to have dismissed the claimant, and liability rested with them and not the new employer (transferee). Outgoing employers worried about a similar scenario arising should consider obtaining suitable indemnities. (London United Busways v. De Marchi)

Unfair dismissal: A claimant was fairly dismissed for “some other substantial reason” when her employer concluded that there was an irretrievable breakdown in relations arising from a grievance and her subsequent conduct in response to that grievance, despite the outcome of the grievance being largely in her favour. The employment tribunal (ET) dismissed her claim, and the appeal before the EAT turned on the extent to which her employer should have considered alternatives to dismissal and her long length of service before dismissing. The EAT concluded that in the circumstances of this case, length of service was irrelevant to the decision whether to dismiss; once it was established that the relationship had broken down, dismissal was the only option. (Alexis v. Westminster Drug Project)

Tribunal procedure – postponement: An ET was entitled to refuse an application to postpone a hearing despite the claimant (who was representing herself) providing medical evidence supporting a delay. The claimant suffered a panic attack caused by the pressures of her claim combined with her autism and was medically advised to take two weeks to recover. The ET’s decision to reject the postponement was based on a finding that the situation was likely to repeat itself at any future hearing and a balancing of the right to a fair trial against the impact on the respondent. (Kaler v. Insights ESC)

Tribunal procedure – extending time limits: The Court of Appeal has been considering when it is “just and equitable” to extend the time limit for bringing a discrimination claim in circumstances where the claimant’s job application was unsuccessful, but facts from which discrimination could be inferred only came to the claimant’s attention after the expiry of the ordinary time limit for bringing an ET claim based on the rejection date. The claim was initially struck out for being out of time, but this decision has now been successfully appealed. On the facts, the claimant being told he had not got the job was not enough to justify issuing a discrimination claim at that time; the justification only arose once he became aware at a later date of the ethnicity of the successful candidate. This appeal court decision provides a helpful reminder that the date on which a claimant becomes aware of the basis for their discrimination claim is relevant to time limits, and it comes at a time when the government is proposing to extend the time limit for bringing ET claims from three months to six. (Jones v. Secretary of State for Health and Social Care)

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