One problem we never have at BB Towers is finding content for our monthly update, and this month is no exception.  The Government has been busy publishing details of a major reforms to the TUPE Regulations; the Public Sector Equality Duty is set to change and new guidance is published; the latest employment tribunal statistics are out; and the Court of Appeal has handed down an important decision on discrimination compensation.  We also have details of our series of client seminars on ‘lessons learned’ from the Mid Staffordshire Public Inquiry by Robert Francis QC, which is due to report on 6 February 2013. 

Consultation on TUPE overhaul

Following on from its ‘Call for Evidence’ on the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) last year, BIS has launched a consultation on a major overhaul of the Regulations.  The consultation closes on 11 April 2013 and, if the recommendations are supported, then it is anticipated that new legislation will be in place in October 2013.  A summary of the key changes are set out below.

  • Removal of ‘service provision changes’ (SPCs) from the scope of TUPE.    This does not mean that a change of service providers will no longer be covered by TUPE; the proposal is to return to the pre-2006 position, and align the definition of a transfer with that in the Directive from which TUPE derives.  This means that only some service provision changes will be covered by TUPE and we will return to using pre-2006 case law to determine the position.  The Government feels that the intended benefits of the 2006 amendments regarding SPCs have not been realised, and that the disadvantages outweigh the benefits.  The Government is seeking views on whether any provisions of earlier case law on TUPE 1981 should be reversed if the repeal of the SPC provisions goes ahead.  It is expected that there will be a long lead in period, of around 3-5 years, so contracts that have been negotiated on the basis of the current regime may be allowed to run their course.
  • Employee liability information to be repealed.  BIS proposes to repeal the specific requirements regarding notification of Employee Liability Information, whilst making it clear that the outgoing employer should disclose information to the incoming employer where it is necessary for each party to undertake their duties regarding information and consultation.  There will be guidance issued, and a ‘general duty of disclosure’.
  • Economic, Technical or Organisational (ETO) reasons for dismissal.  The proposal is to change the meaning of ‘economic, technical or organisational reasons entailing changes in the workforce’ (which can be a valid reason for redundancies under TUPE) so that ‘changes in the workforce’ can include changes in location of the workforce.  This would align TUPE with the definition of redundancy under the Employment Rights Act 1996, so that TUPE related dismissals involving place of work redundancy are capable of being fair for unfair dismissal purposes.  It is also proposed that outgoing employers should be allowed to rely on the ETO reasons of the incoming employer – this would allow employers to dismiss employees (fairly), in anticipation of a transfer, relying on the incoming employer’s legitimate ETO reason for dismissal.
  • Harmonisation of terms and conditions post transfer.  It is proposed that these restrictions will be relaxed, but perhaps not to the extent to which many employers would have liked.  As the extent to which changes can be made is curtailed by the Directive from which TUPE derives, the Government proposes to widen the circumstances in which post-transfer contractual changes may take place – i.e. changes may be made by consent, or if the changes are not directly connected to the transfer itself.  Changes will also be lawful if they are for an ETO reason (as now).
  • Consultation requirements.  It is proposed that incoming employers should be allowed to consult, prior to the transfer, with staff who are due to transfer. It is also proposed that the consultation requirements for TUPE should also be allowed to satisfy the redundancy collective consultation requirements.

PSED update

  • The Equality and Human Rights Commission has published new guidance this month on the Public Sector Equality Duty (PSED).  The Guidance relates to the promotion of equality in the workplace and in the delivery of public services, and is non-statutory, but may be used in evidence at an employment tribunal.  A public authority which has not complied with the duty is required to explain its reasons for its failure.  The guidance sets out how public authorities should comply with the PSED (as both employers and service providers) and gives practical advice on doing so.
  • The steering group which the Government has appointed to review whether the PSED is operating as intended met for the first time last month and is expected to report its findings in April 2013.

Latest employment tribunal statistics

The Ministry of Justice has published quarterly statistics for employment tribunals

Headline figures are

  • between July and September 2012, employment tribunals received 45,300 claims in total – 13 per cent more than in the same quarter of 2011-12.
  • The number of multiple claims went up by 25 per cent, whilst the number of single claims went down by 9 per cent, continuing a downward trend.  The increased multiple claims related mostly to Working Time.
  • In July to September 2012, there were 27,300 cases dealt with by Employment Tribunals - a 1 per cent fall on the number for the same quarter of 2011-12.

Discrimination awards

If you came to our Employment Law Update and Preview of 2013, held last December, you will know that we have been awaiting a decision from the Court of Appeal on how awards in discrimination claims should be divided-up between multiple respondents. The Court of Appeal has now made its decision in London Borough of Hackney v Sivanandan and others and has upheld the Employment Appeal Tribunal's decision: that where there are multiple respondents to a claim, an employment tribunal does not have the power to apportion liability for the award amongst the respondents.  The only exception to this will be where liability can be clearly 'divided-up' between respondents - for example, if a progressive illness was caused by various respondents, the tribunal could ascribe liability for that part of the damage for which each respondent was responsible.  However, in the normal course of events, concurrent discriminators will each be jointly and severally liable for the whole award made to the claimant.  It will then be up to the respondents to decide how much they should each contribute to the award of compensation made to the claimant - leading, possibly, to further litigation between co-respondents.

Mid-Staffordshire Public Inquiry: essential lessons for the health and social care sector

The public inquiry into Mid-Staffordshire NHS Foundation Trust is due to report next month.  Bevan Brittan LLP is hosting a series of seminars, at each of their offices, looking at lessons learned from the Inquiry, in terms of quality governance and interaction with, and between, commissioning, regulatory and oversight bodies. 

The report, when it is published, will undoubtedly provide valuable learning across the entire health and social care sector and not just throughout the NHS.  The precise content of the seminar will await publication of the Inquiry report, but the key topics which will be covered will be of significant interest to all those involved in workforce matters, including whistleblowing, employee engagement, organisational culture and Board governance. 

The seminars will be held in:

Bristol on 20 February 2013

Birmingham on 26 February 2013 and

London on 1 March 2013

Please select one of the locations above to view more details and to register your interest in this event.

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