Employment Law Brief : February 2008
TUPE: Amending Employment Contracts
The Court of Appeal recently held in the case of Regent Security Services v Power that an employee is entitled to elect to rely on improved changes made to their employment contract terms following a TUPE transfer. Prior to this case it was thought that such variations would be invalidated by the TUPE regulations. The regulations were introduced to protect employees but the difficulty is now that employees have the option of relying on more favourable terms. Further case law is awaited.
Fail to consult at your peril
When redundancies are being made there is a requirement to consult with employees before selecting those to dismiss and giving notice. When 20 or more are to be dismissed, the minimum period of consultation is 30 days. When 100 or more are to be dismissed it is 90 days. Failure to consult will make you liable to a protective award of up to 90 days’ pay per employee.
It has now been confirmed that there will be a presumption of the maximum penalty of 90 days’ pay regardless of which minimum consultation period applied. This is one of the areas of employment damages which are penal in nature rather than compensatory.
Illegal Workers: New Civil and Criminal Penalties
From February 2008 any employer who negligently employs someone who does not have permission to work in the UK will be liable for a maximum fine of £10,000 for each worker in his or her employment. Also, there will be a new criminal offence of knowingly employing a person who is subject to immigration control and who does not have permission to work in the UK. This carries an unlimited fine and or a prison sentence of up to 2 years.
The end is near for the statutory dismissal and grievance procedure
We have finally seen a positive step towards the abolition of the statutory dismissal and grievance procedures. The Employment Bill was published in early December. Proposals include:
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statutory dismissal and grievance procedures be abolished;
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a discretion to increase awards by up to 25% for failure to follow a statutory Code of Practice. Compare that to the current position when 10% must be awarded for failure to follow procedure, and the discretion exists to award up to 50%;
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ACAS powers of conciliation be extended, possibly to start before tribunal proceedings are commenced;
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the provision of mediation services for employment disputes;
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strengthening tribunal powers to award costs, including consideration of efforts made to settle disputes;
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the simplification of tribunal forms.
The procedures are however expected to remain in force until 2009 when the amendments to legislation are expected to be made.
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