June 2012 Employment Law Update
If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181
1. Planning for the Olympic and Paralympic Games
A summer of exciting events is quickly catching up with us and ACAS has produced further guidance to assist employers affected by London 2012. In summary, ACAS suggests that employers should consider more flexible working arrangements and fully assess how they might minimise potential disruption.
The recommended action points for employers include:
a. Considering temporary flexible working arrangements to allow staff to watch some TV or internet coverage of the games while at work.
b. Managing staff attendance by talking to employees about their plans, circulating guidelines for booking holiday leave and ensuring that requests for time off are handled fairly and consistently.
c. Looking at ways of keeping travel disruption to a minimum, and
d. Ensuring the legal position of any employees who have volunteered is understood.
The guidance can be found here.
2. WARNING: Suspension & pay
The Employment Appeal Tribunal has determined that suspending an employee from work without pay will amount to an unlawful deduction of wages unless the employment contract provides otherwise.
This means that, if the contract of employment does not provide for suspension without pay, the employee is entitled to be paid during the suspension period as long as he or she remains ready and willing to work. This is the case REGARDLESS of the reason for the suspension (for example, even if the employee has been arrested or charged with a serious offence).
This case considered an employee who was remanded on bail and therefore physically able to go to work. If he had been held in custody the position would probably have been different because it would have been impossible for him to go to work.
Employers should ensure that their contracts adequately address this point and that suspension is with pay unless there are exceptional circumstances and legal advice has been obtained.
ACTION POINTS: Employers should review any long standing bonus schemes in operation and ensure that they can still justify any difference in pay and, if necessary, seek legal advice.
3. Employment status is never dull!
The Employment Appeal Tribunal has confirmed that a lap dancer who was described as being ‘self-employed’ and who worked intermittently was in fact an employee.
This decision again highlights that the tribunal will take into account all the specific facts of a case to determine whether someone is an employee or not. Where a ‘money’s worth for work’ bargain exists with control by the ‘employer’ and the requirement for the individual to do the work personally, that person will be classed as an employee regardless of how they are described.
The case serves as a reminder that using the “self-employed” label in the documentation will not stop the individuals from being an employee. As always, employers with any doubt as to the employment status of a person working for them should take specific legal advice.
4. Employment status II: Partners
The Employment Appeal Tribunal has held that an equity partner of a Limited Liability Partnership (“LLP”) could be a ‘worker’ for the purposes of bringing a whistle-blowing claim.
This means that an equity partner in a LLP will be able to pursue a whistle-blowing claim if they can demonstrate that they have entered into, or worked under, a contract which requires them to undertake or perform personally the work or services for another party to the contract. Additionally, the contract should not make the other party a client or customer of any profession or business that the individual in question carries on.
Here the individual was working for the benefit of the partnership as well as for herself. Her salary was guaranteed at a certain level and she also had entitlement to a profit related element as an equity partner.
ACTION POINTS: Partnerships, including LLPs, should be aware that some of the legal protection for workers may extend to partners and LLP members.
5. Last but not least, another TUPE decision!
Usually, pension rights that are ‘benefits for old age, invalidity or survivors’ do not transfer under TUPE. However, the High Court has determined that rights to early retirement benefits (even discretionary ones), can be an exception to that rule to the extent that they are payable on dismissal and up until the normal retirement age, with the consequence that those rights do transfer under TUPE.
This decision may be appealed, but in the meantime, if the pension scheme rules allow for early retirement with the agreement of the employer, then an employee’s right to be considered for early retirement benefits transfers to the buyer under TUPE.
Businesses who are contemplating purchasing another business or part of another business should take legal advice regarding their liabilities under TUPE. Pensions in particular will require detailed consideration to ascertain what will or may transfer and this should be addressed in the contract for the sale.
Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181
Follow Julie on Twitter: @JulieT_GL
29/06/2012
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