News Round Up

Jaspal Basra takes a whistle-stop tour of a few of the more prominent employment law announcements and cases from this month, including the Governments response to the consulation on the reform of the Equality and Human Rights Commission; the judgement in the EAT case of <EM>Seawell Ltd v Ceva Freight (UK) Ltd </EM>concerning TUPE provisions; and the recently amended identification checking guidelines from the Criminal Record Bureau.

30/05/2012

Jaspal Basra

Jaspal Basra

Associate

Response to consultation on reform of the Equality and Human Rights Commission (EHRC)

The Home Office has recently published its response to the consultation on reforming the EHRC. This document sets out a number of legislative and non-legislative changes which the Home Office describes as "a strong package of legislative and non-legislative reforms to clarify the EHRC's remit, focusing it on those areas where it can add value because of its unique role and functions, and improve its financial and operational performance".  In doing this it is said it will improve the transparency and efficiency of the EHRC.
 
The Core Role of the EHRC
The response explains that the core role of the EHRC is to be:

  • A national expert on equality and human rights issues, monitoring the effectiveness of equality and human rights law, undertaking research, conducting inquiries, making recommendations, and monitoring progress in reducing persistent inequalities; and
  • A strategic enforcer of the law and guardian of legal rights, promoting awareness and understanding of rights, supporting victims of discrimination, and using its strategic enforcement powers to ensure the law is working as intended.

Non-Core Activities
Some of the activities of the EHRC will be repealed:

  • In December 2011, the Home Office announced that a new Equality Advisory and Support Service would be developed to provide advice and information on discrimination and human rights issues.  This new service will therefore replace the EHRC helpline (which currently provides that service).
  • The EHRC's power to arrange the provision of conciliation for non-workplace disputes will be repealed.

The Equality Act 2006 (EA 2006)
The EA2006 will be amended in the following ways:

  • The EHRC's general duty at section 3 will be repealed on the basis that it does not help to clarify the precise functions that the EHRC is required to carry out.
  • The EHRC's section 12 duty to monitor its progress will be amended to change the requirement for it to report from every three years to every five years.
  • The EHRC's good relations duty at section 10 and its associated power at section 19 will be repealed, as it is considered ‘superfluous’.

Improvement of financial and operational performance
In the 2010 Spending Review the EHRC's budget was reduced significantly and as such steps need be taken to improve the EHRC's financial efficiency and effectiveness.  These include:

  • A comprehensive review of the remainder of the  budget will be carried out in the upcoming months;
  • A new framework document will be introduced to clarify the relationship between the EHRC and the government and to establish tighter financial controls, especially for recruitment, consultancy and marketing.
  • A new Chairman and, smaller, Board will be appointed.  Members will have stronger business skills and experience and clearly defined roles. 

Can one person be an "organised grouping of employees"?

A recent EAT case (Seawell Ltd v Ceva Freight (UK) Ltd) has looked into the question of whether a single employee who works 100% of his time for a single client was assigned to an "organised grouping of employees" whose principal purpose was carrying out activities on behalf of a client for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) service provision change test.

Facts
The claimant (Mr Moffat) was employed by Ceva Freight (UK) Ltd who provided logistics and freight forwarding arrangements for Seawell.  Although Ceva had a number of different clients, the practice had been that Mr Moffat spent 100% of his time working on the Seawell contract whilst 7 other employees either spent smaller percentages of their time on this contract (up to 30%) or no time at all.

When Seawell took the decision to terminate this particular arrangement to take the service back in-house, Ceva maintained that TUPE applied so as to transfer Mr Moffat's employment to Seawell.  This was disputed by Seawell. When Mr Moffat's employment was subsequently terminated he claimed unfair dismissal and breach of the TUPE information and consultation obligations against Ceva and Seawell.

Employment Tribunal decision
The ET held that Mr Moffat transferred under TUPE, on two alternative basis:

  • Either Mr Moffat himself could comprise an organised grouping of employees; or
  • If the organised grouping of employees included Mr Moffat and colleagues, he was assigned to that organised grouping of employees as he spent 100% of his time on the service.

Therefore, they concluded that as Mr Moffat had TUPE transferred from Ceva to Seawell, Seawell were liable for unfair dismissal.

Seawell appealed; they argued that the ET had adopted the wrong test in reaching their conclusion.

EAT decision
The EAT disagreed with the ET and upheld the appeal, finding that Mr Moffat was unfairly dismissed by Ceva.  Whilst they agreed that TUPE did permit a finding that a single employee could be an organised grouping, they held that this did not mean that an employee who spent all of their time working for a single client was, therefore, an organised grouping. They therefore held that there was no basis for finding that there was a group of employees specifically organised for this particular contract.

They held that an organised grouping of employees refers to a deliberately constituted group of employees for the purpose of specific client work and therefore "it is not a matter of happenstance".  In this case there was no finding of fact that Ceva had specifically and purposefully  formed a grouping consisting of Mr Moffat to carry out the Seawell work. This element of the decision clearly follows the previous EAT authorities of Argyll Coastal Services v Stirling and Eddie Stobart Limited v Moreman (which we discussed back in March).

Another key factor was that when Seawell took the work back in-house they took back all of their work, which therefore went over and above just the work that Mr Moffat had undertaken.  Regulation 3(3)(a)(i) TUPE requires that the organised grouping of employees carry out "the activities concerned" and in this case whilst Mr Moffat spent 100% of his time on Seawell work, he did not in fact carry out 100% of that work. 

What this means for me?
In reaching their decision the EAT has followed on from the recent Eddie Stobart Limited v Moreman decision and provided further useful guidance on how to identify an "organised grouping of employees".  In particular, just because TUPE provides that a single employee can be an organised grouping of employees this does not automatically mean that any one employee who works solely on one client's contract will satisfy the conditions in regulation 3(3)(a)(i).

Both these cases have made it clear that a party needs to demonstrate that the employees (or, employee) in question are deliberately organised into an identifiable client grouping who are "essentially dedicated" to carrying out the activities that are to transfer.  If this cannot be shown then the conditions of a service provision change under TUPE will not be met.


Strengthened CRB Checks

From 28 May onwards, the identification checking guidelines from the Criminal Record Bureau (CRB) will be strengthened in order to make it more difficult for individuals to conceal previous criminal records by changing their identity. These new guidelines will apply to all applications for a CRB check submitted after this date.

Although the new process will be implemented from the 28 May there will be a phasing-in period of three months, to allow organisations time to bring existing processes in to line with the new requirements. Consequently, all ID check will need to be carried our in line with the new guidance from 31 August 2012.

As part of these guidelines, applicants will need to produce documents that have been acquired through undergoing stringent identity verification with the document issuer.  Examples of such organisations include the DVLA and the Identity and Passport Service.  As a result of this a number of documents (21 in total) which have, up until now, been regarded as acceptable proof of identity will not be permissible after 28 May.  Some key documents which will no longer be acceptable include an NHS Card (UK), a National Insurance Card, a TV licence, a GMC Certificate, documentation issued by Court Services, a Mobile Phone Bill and a Certificate of British Nationality (UK).

Further information can be found in the CRB’s published guidance

 

 


 

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