Employment Bulletin
27 June 2008
Liability for employees on transfer of part of a business
Kimberley Group Housing Ltd v (1) Hambley and Ors (2) Leena Homes Ltd (3) Angel Services (UK) Ltd UKEAT/0488/07 and Angel Services (UK) Ltd v (1) Hambley and Ors (2) Kimberley Group Housing Ltd (3) Leena Homes Ltd UKEAT/0489/07
TUPE is often a technical area of employment law. Here, EAT considered apportionment where a service provided by a single contractor was subsequently provided by two separate contractors.
Leena Homes Ltd (L) provided accommodation services for asylum seekers in Middlesbrough and Stockton under an agreement with the Home Office. L lost the contract, which was awarded to Kimberley Group Housing Ltd (K) and Angel Services (UK) Ltd (A). As a result, L's employees lost their jobs, and six employees brought claims in the employment tribunal.
At first instance, the tribunal had held that this was not a "business transfer" under regulation 3(1)(a) of TUPE 2006, but a service provision change and considered to which of the two transferees the claimants should transfer.
The tribunal decided that the rights and obligations should be apportioned on a percentage basis between the transferees, and found that:
The tribunal allocated liabilities for the employees between K and A on this basis.
On appeal by the respondents, EAT held that the tribunal had erred in apportioning the liabilities. The percentages were found to be such that the contracts and associated rights, duties and liabilities of the Middlesbrough employees should be regarded as passing solely to K.
For further information, please contact Julie Davis: jdavis@vwl.co.uk.
Consultation on carers and the launch of Employers for Carers
On 10 June 2008 the Government launched the National Carers Strategy. Carers at the heart of 21st-century families and communities outlines the Government's short-term agenda and long-term vision for the future care and support of carers. The project is backed by £255 million to implement both immediate measures as well as medium and long-term plans.
Proposed funding includes: £150 million towards planned short breaks for carers; £38 million towards helping carers to enter or re-enter the job market and £6 million towards improving support for young carers. A number of additional measures are aimed at helping carers balance caring with paid work, including a review of the definition of carer and an extension of the right to request flexible working.
To view the National Carers Strategy please click here.
Employers for Carers, a membership forum for employers who want to support employees with care responsibilities was launched by Minister for Carers, Ivan Lewis MP on the 12 June 2008.
To find out more about Employers for carers please click here.
For further information, please contact Juliane Brustinow: jbrustinow@vwl.co.uk.
Consultation on employee right to request time off to undertake training
On 18 June 2008 the Government launched a consultation on granting employees the right to request time away from their normal duties to undertake relevant training. Any such training would need to help productivity, efficiency and business performance. The right will apply to employees in both the private and public sectors after they attain 26 weeks continuous employment. Employers will be permitted to refuse requests for good business reasons.
The Government anticipates that the right to request time to train will be implemented in 2010 and estimates that up to 300,000 people each year will undertake training as the result of its introduction. The procedure for exercising of the new right will be based on the existing model of the right to request flexible working.
The consultation will close on 10 September 2008.
The view the consultation document click here.
For further information, please contact Caitlin Anniss: canniss@vwl.co.uk.
Muslim stylist awarded £4,000 compensation
A Muslim woman has been awarded £4,000 in compensation for injury to feelings after the owner of a hair salon turned her down for a job because she wore a headscarf.
The salon owner claimed she needed stylists to showcase alternative hairstyles. Bushra Noah's claim for direct religious discrimination was dismissed by the employment tribunal, but her complaint of indirect discrimination was upheld.
In its judgment the tribunal stated: "We were satisfied by the respondent's evidence that the claimant was not treated less favourably than the respondent would have treated a woman who, whether Muslim or not, for a reason other than religious belief wears a hair covering at all times when at work."
For further information, please contact Alison Graham: agraham@vwl.co.uk.
Brokers sue for right to bonuses after quitting
Seven brokers are suing ABN Amro after being forced to forfeit part of their bonus when they left to take up employment with Tullet Prebon. The brokers are claiming that the forfeit of their deferred compensation rights is an unlawful restraint of trade in that it effectively penalises them for taking a new job. They allege that Amro was irrational and unfair in its actions.
If successful, the brokers' claim would strike a blow against the well-established "good leaver, bad leaver" City compensation system. Usually, employees who leave to work for rival employers are classified as "bad leavers" and forfeit entitlements that have yet to be awarded. "Good leavers" include those who retire after long service who accordingly receive their full bonus entitlements.
For further information, please contact Felicity Larter: flarter@vwl.co.uk.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
