John Moore reports on the latest employment news: industrial action; TUPE and collective agreements; amendments to the Agency Workers Regulations Guidance; details of a change in how employment tribunals allocate compensation between multiple respondents; and a research paper from Acas on how the new disciplinary and grievance procedures are bedding in.

Industrial action

The threat of industrial action continues to dominate the headlines, with the ‘day of industrial action’ scheduled to go ahead this week, and wide-ranging industrial action set to continue for the foreseeable future, as the Government’s cuts take effect.  Bevan Brittan LLP has produced a comprehensive guide to dealing with industrial action, which you can download here.

TUPE and collective agreements

All those who have been waiting for the Supreme Court’s ruling in Parkwood Leisure v Alemo-Herron  will have to wait a bit longer than anticipated, as the Court has referred a question on the appeal to the Court of Justice of the European Union.  The appeal is against the Court of Appeal's decision that regulation 5(1) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (and presumably the equivalent provisions in regulation 4 of TUPE 2006) should be given a 'static', rather than 'dynamic', interpretation.  The former interpretation means that transferees are not bound by changes made to a collective agreement post-transfer, i.e. the transferee inherits a collective agreement as it stands at the point of transfer.  The latter interpretation would mean that the transferee would be bound by changes to a collective agreement, notwithstanding that they might have been negotiated post-transfer. 

The Supreme Court is seeking a preliminary ruling on whether our domestic TUPE Regulations were designed to be more generous than the originating Directive, and if not, whether it is open to the Court to construe those Regulations more generously.

Reading between the lines, it seems that the Supreme Court may be looking for endorsement from the European Court to depart from the Court of Appeal's 'static' interpretation of TUPE, but their final decision remains to be seen.
In the meantime, the position following the Court of Appeal’s decision in Parkwood remains applicable: collective agreements should be given a 'static' interpretation on a TUPE transfer.

Agency Workers – amendment to guidance

The Department for Business Innovation and Skills (BIS) published ‘final’ guidance on the Agency Workers Regulations in May 2011 but has, this month, announced that the guidance has amended.  The amended guidance can be downloaded here  and the main changes are that:

  • guidance for agency supply teachers has been removed.  This will be extended after consultation with the Department of Education and published “shortly";
  • the section on pay between assignments has been amended to clarify its requirements and consequences; and
  • a one-off non-contractual bonus payment has been removed from the definition of ‘pay’.

For more information on this topic, please see our May 2011 article on the Agency Workers Regulations and Guidance.

Sharing the pain

Employment tribunals are likely to significantly change their approach to the way in which they allocate the payment of compensation in cases where there is more than one respondent, following the decision of the Employment Appeal Tribunal in
London Borough of Hackney v Sivanandan.  In this case, the claimant brought successful claims for discrimination and victimisation against several respondents.  Normally, an employment tribunal would ‘apportion’ liability for the claimant’s compensation, amongst the respondents – e.g. 80% to be paid by Respondent A and 20% to be paid by Respondent B.  The employment tribunal declined to do so in this case, and made the award of damages ‘joint and several’ – i.e. each respondent could be liable for up to 100% of the award and it was up to the claimant to decide against which respondent (or respondents) to enforce the award, and for what percentage – e.g. the claimant could choose to enforce 100% against Respondent A, or 50% against Respondent A and 50% against Respondent B. One of the respondents in Sivanandan appealed against the tribunal’s decision to make the award ‘joint and several’, but the Employment Appeal Tribunal (EAT) said that this was the correct approach. 

The only exception to this rule, the EAT went on to say, is where liability can be ‘divided up’ between respondents; for example, where employers contribute at successive stages to a progressive industrial illness such as deafness – in those circumstances, each of the respective respondents will only be liable for that part of the damage for which they were responsible.  However, in the normal course of events, where damage is caused concurrently, by multiple respondents, the respondents are liable ‘jointly and severally’.  In other words, each respondent is liable for up to 100% of compensation awarded to the claimant, regardless of blame; and there may then be further litigation between respondents seeking a contribution from their co-respondents towards the cost of the compensation.

Acas research: disciplinary and grievance code of practice

Acas has published a research paper  on its Code of Practice on Disciplinary and Grievance Procedures, which was put in place following the (entirely unlamented) demise of the statutory disciplinary and grievance procedures.  The research sets out some interesting findings, such as:

  • the number of grievances lodged has reduced since the Code has been in place, as employers no longer feel that they have to protect their position by treating every complaint as a formal grievance;
  • there was an increased emphasis on informal, early resolution of complaints where organisations had adopted the Code; and
  • uncertainty about the legal status of the Code and how tribunals may interpret the Code's key principles of 'fair' and 'reasonable' has, for some employers, increased their worry about tribunal claims.

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