Tag Archives: workplace legal advice

Government proposals for simplifying TUPE

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Known as TUPE, The Transfer of Undertakings (Protection of Employment) Regulations 2006 is a law which aims to protect employees should a business in which they work change hands.

However, it adds substantial complications to a business’s sale and generally works against commercial interests in such transactions. It is a law that seems particularly out of place in the current economic climate and is in need of an overhaul, and the Government has recently published a report making controversial proposals changes to it.

There is a case to argue that TUPE is unnecessary and should be abolished in its entirety. Other jurisdictions manage to buy and sell businesses and retain important employees without TUPE (or an equivalent). For example, in the US, business transfers take place with little employment regulation. What regulation there is consists mostly of limited obligations to give employees, unions and local and state authorities notice of the transaction and its effects.

Of course, we know this is not possible in light of the UK’s EU obligations, including continuing to implement the terms of the Acquired Rights Directive. However, the Government has been consulting on planned changes to TUPE in order to lighten the burden on employers in complying with its requirements.

The main issue with many of these changes will be the extent to which legal uncertainty will result – and how this acts as an obstacle for those who wish to buy and sell businesses.

Abolition of the service provision change provisions

This is the most radical proposed change to the current TUPE regime. These provisions were introduced in 2006 and extended the reach of TUPE to all contracting in, and contracting out situations in return for providing increased legal certainty. The service provision change provisions themselves gave rise to case law which undermined this search for certainty. However, it remains to be seen whether the abolition will cause more confusion around the flow of business transfers.

Repeal of the liability information provisions

These provisions were designed to ensure a minimum level of disclosure to the buyer. However, parties often disclosed the minimum information required at the latest point permitted under TUPE (14 days prior to the transfer). This is likely to have minimal effect as disclosure of meaningful information in a timely fashion has, in most transactions, been a matter for commercial negotiation between the parties.

Increasing the ability of employers to harmonise terms and conditions post-transfer

This is important as it will allow changes to terms, unless (i) the changes are made by reason of the transfer itself; and (ii) there are no economic, technical or organisational reasons entailing changes in the workforce. However, changes to terms for reasons connected with the transfer will be allowed, and will changes employees would have agreed in the absence of a TUPE transfer. These will give businesses much-needed flexibility in managing the post-transfer workforce.

Other proposed changes include:

  • Changes to provisions regarding transfer-related dismissals. The proposal is to make the same changes here as are proposed in connection with contract harmonisations.
  • Allowing workplace redundancies arising on a change of workplace to be treated as normal redundancy situations.
  • Permitting pre-transfer consultation by the transferee regarding redundancies to count towards collective redundancy obligations.
  • Allowing small businesses of fewer than 10 employees to consult directly with employees, rather than requiring the election of employee representatives.
  • Allowing the transferor to rely on the transferee’s economic, technical or organisational reason to dismiss pre-transfer.

No one can tell whether the Government’s proposals will change substantially following the final round of consultation, which has just closed. It does seem highly likely, however, that there will be significant changes to TUPE in October 2013.

Those businesses considering acquisitions should keep a careful eye on the timetable for reform and should at least prepare for a swift review of internal processes and practices once the final proposals are published.

The article above is published courtesy of HR magazine and was written by Daniel Peyton, a partner and employment lawyer at international law firm McGuire Woods.

Employment lawyers have issues with the Government’s reform programme

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An enormous wave of policy change has left some real scar tissue among the UK’s employment lawyers as they now face implementing a raft of new legislation, according to the Chair of the 6,000-member Employment Lawyers Association (ELA).

Speaking ahead of ELA’s annual conference, Richard Fox said very real concerns remained about some of the forthcoming changes and whether actions had been taken to “cure” perceived rather than real problems.

“There is enormous disquiet over the period the Government has provided for consultation on some hugely important issues,” said Mr Fox. “Some, such as Shares for Worker Rights and Employment Tribunal Fees, are deeply controversial.”  There was no business demand for Shares for Rights, for example, and strong resistance from the House of Lords but this new measure was nevertheless included in the Growth and Infrastructure Bill.

ELA is an apolitical organisation whose 6,000 employment lawyer members advise both employers and employees. Its packed day-long conference programme on Wednesday (22 May) tells its own story about the wealth of new or changed law with which employers and employees must now contend.

“There is concern that some of the concessions rung from and given away by Government on shares for rights during the last minute ping pong process may come back to haunt them, for example, independent advice for prospective new employee shareholders” said Mr Fox.

The Government’s crackdown on red tape has driven much of its reform programme.  “In many ways Government seems to have created a rod for its own back by suggesting in the first place that many employers were deciding not to recruit because of a fear of red tape and, more particularly, the prospect of being taken to litigation. They then seemed to concede ground indicating that they were only seeking to tackle a ‘perception’ of red tape.

“Maybe this was an issue which in retrospect could have been handled in a different way, by emphasising such concerns may be overblown – something they looked to promote via the underwhelming, certainly under publicised, Employers Charter,” added Mr Fox.

Rate of female appointments to FTSE100 boards slows

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The rate of female appointments to FTSE100 boards has slowed drastically this year, figures have revealed.

Only 12% of directors appointed in the two months to May were women, down from the 50% rate seen a year ago. This means just four of the 34 new directors were female.

The figures published by The Professional Boards Forum BoardWatch found another 84 more board seats held by women are needed to reach the 25% target set by Lord Davies in 2011.

The figures also showed the proportion of women on FTSE100 boards has been stuck at 17.4% since August, after rising from 12.5% in 2010.

There are still five companies with all-male boards: Antofagasta, Croda, Glencore Xstrata, Melrose and
Vedanta Resources.

Lyndsey Oliver, co-founder of gender balance consultancy Female Quotient, said despite all the focus and attention this issue has been getting, the “figures are disappointing”. She also warned companies “can’t allow progress to stall”.

“While the benefits are proven, it seems we have some way to go to change mind-sets,” Oliver said.

“Boards have to look beyond the safety of the old corporate stereotypes and consider more creative appointments. It is too easy to stick with established patterns of behaviour and simply look for candidates to fit the current mold.”

She added: “It’s tough to take a perceived risk, but risk has its rewards. The charity sector is one example where bold appointments have been made, recruiting outside of traditional backgrounds – and to great effect.”

There was better news relating to FTSE250 companies, where figures showed 40% of all board appointments in the three months to May were female. The figures also revealed there are now 25% of companies with all-male boards, down from 52% in the previous three months.

In 2011, a report by Lord Davies recommended all FTSE100 companies should have 25% female representation on their boards. This was reiterated earlier this year, when business secretary Vince Cable wrote to the remaining companies with all-male boards, urging them to increase the number of women in their boardrooms.

Oliver said: “Despite the disappointing figures quotas are still not the answer. Instead, developing the talent pipeline will be key to not only hitting targets, but also more importantly sustaining these achievements.

“Hitting any target means nothing unless there is systemic and pervasive change at all levels. Diversity and inclusiveness must be embedded in every part of talent management and cultural change always starts from the top. If organisations start with inclusiveness, diversity will naturally follow.”

Combination of ageism and sexism is holding back women TV presenters, according to shadow culture secretary, Harriet Harman

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Most TV presenters (82%) who are over 50 are men, leading to calls of ageism and sexism among female staff at major UK broadcasters.

Research compiled from figures taken from the main UK broadcasters found just 18% of presenters over 50 are women. The figures also reveal only 7% of the total TV workforce (on and off screen) are women over the age of 50.

Harman, told Radio 4′s Today programme, there needs to be a culture change in the TV industry.

“When it comes to men, they can get better with age – their grey hair denotes wisdom, experience and authority,” Harman said.

“But for women they get worse with age. They have to start looking younger and younger, many, many years below their age. And then when they get to about 50 somehow the viewers need to be protected from them, and I don’t think that is acceptable.”

She added: “I don’t think women in the country think that just when they are past 50 they have to be airbrushed off our screens.”

Last year former presenter of BBC’s Countryfile, Miriam O’Reilly, won an age discrimination case after the broadcaster dropped her from the programme.

After the case, O’Reilly said: “Right from the get-go, there was no interest from HR in my case.

“But, as a journalist, I felt I simply couldn’t let it go. The BBC never thought I would go to a tribunal; when it finally realised I was serious, it tried to settle, but I refused.

“Signing anything meant accepting gagging orders, and someone needed to speak out. I felt that being free to do this allowed me to be as damaging to it as I could.”

Last year Harman set up the Older Women’s Commission after finding it “unacceptable” that women in television who were entering their fifties were on “borrowed time”.

Senior executives at the BBC, ITV, ITN, Channel 4, Channel 5 and Sky will today meet members of the Older Women’s Commission to discuss how to end discrimination.

Government’s pro-whistleblowing legislation will deter disclosure of information, says expert

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Government proposals to encourage  whistleblowing, through the introduction of a new public interest test, will deter rather than encourage people from reporting major wrongdoing, according to one of the UK’s leading whistleblowing experts.

In evidence submitted yesterday to the Whistleblowing Commission (set up by whistleblowing charity Public Concern at Work) Professor David Lewis of Middlesex University argued that legislation will increase uncertainty amongst workers who have concerns about major wrongdoing such as safety or financial mismanagement.

A number of high profile health and safety cases and financial scandals have seen the Government act to encourage whistleblowing through its Employment Law Review and the new Enterprise and Regulatory Reform Act. However,  the legislative changes include only giving statutory protection to whistleblowers who disclose information  which is in the ‘public interest’.

Middlesex University Professor of Employment Law David Lewis said: “A worker’s protection will depend on satisfying the new ‘public interest’ test for making a disclosure. However, they will only learn whether they get this protection after blowing the whistle and atribunal agrees that the test was satisfied. It will be very difficult to advise a worker in these circumstances and without firm assurances  they may choose to remain silent about serious wrongdoing. If this happens, the public interest test is clearly not in society’s interest.”

“This uncertainty is compounded by the fact that, as a result of other provisions, legal aid and advice is no longer available for employment matters and fees for taking a claim to an employment tribunal are being introduced later this year.”

Professor Lewis, who is also the convenor of the International Whistleblowing Research Network, has submitted evidence to the Whistleblowing Commission.

His submission raises further issues including:

• All employers should be required by law to establish confidential reporting procedures that provide for the investigation of concerns and feedback to whistleblowers

• A public interest disclosure agency or national whistleblowing ombudsperson should be established to assist actual and potential whistleblowers and to educate the public about the need to raise concerns about wrongdoing.

• There is a strong argument that whistleblowers should be rewarded, financially or otherwise, for exposing serious wrongdoing.

 

‘Presenteeism’ putting UK workers’ health and productivity at risk

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More than two-thirds of UK workers say it’s becoming increasingly common for people to attend work while unwell, according to research from Capita Employee Benefits.

In the survey of more than 3,000 UK employees, 59% said they felt pressured to go to work while they felt ill.

Despite this, more than three in four (78%) recognise colleagues who are genuinely sick should stay at home until they get better for the benefit of both themselves and those around them.

Robin Hames, head of marketing for Capita Employee Benefits, said: “Far from being a nation of skivers, this research shows UK employees are feeling pressure to work while they are unwell, potentially putting their own and their colleagues’ health at risk.

“Whether this pressure is real or imagined, articulating a sensible approach to health and absenteeism helps avoid encouraging potentially infectious people into the workplace.”

The research also found 63% of respondents went to work the last time they were ill, while almost half (47%) are worried what their employer will think of them if they take time off to visit their doctor or dentist.

Hames added: “Rates and reasons for absenteeism and, indeed, presenteeism, vary between sectors but strong management data and technology can support sustainable attendance levels and help to manage any health or business continuity impacts before problems escalate.”

Government announces clampdown on pension charges

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The Government has announced a plan to protect consumers by tackling high and inappropriate pension charges.

Its first measure will be to ban consultancy charges in automatic enrolment schemes. The new legislation will also ban employers from reimbursing themselves from their workers’ pension savings pots for costs paid to consultants for advice.

Trade groups including the National Association of Pension Funds (NAPF) have criticised the measures, but some consumer and labour groups have welcomed them.

In the past six months, the Government has conducted a thorough review of consultancy charges and concluded existing measures to prevent advisers deducting high charges from members’ pension pots are inadequate.

It also found consultancy charges can have a disproportionately negative impact on people who move jobs regularly.

Pension minister Steve Webb said: “With millions of people taking up pension saving for the first time under auto-enrolment, we have to give people confidence they will get good value for money.”

Chief executive of the NAPF Joanne Segars agreed excessive consultancy charges can be a “serious problem” but said a “blanket ban” is just too “simplistic”.

She added: “Employers should not be allowed to pass on charges for advice that does not directly benefit the saver, such as guidance on complying with auto-enrolment laws.

“But sometimes savers can benefit from the advice that comes with these charges. They may find that their pension is better governed and that they get stronger communications about their savings.”

Paul Wilson, head of employee benefit consulting at Barclays Corporate and Employer Solutions, said: “We have always believed consultancy charging and auto-enrolment would not work together and so decided not to offer the option of consultancy charging to clients.

“We welcome the changes announced today which allow for greater transparency, however, as ever, the devil is in the detail.”

He added: “The fact that this ban applies only to auto-enrolment schemes could cause confusion and potentially add another layer of complexity regarding which schemes can use consultancy charging.”

The Government has also announced the launch of a consultation on setting a cap on the maximum charge that can be levied on savings in default funds, which account for 80% of pension pots.

The Office of Fair Trading is conducting an inquiry into pension savings and a consultation paper on capping charges is expected to be released after the report is completed this summer.

Half of employees could be exposing confidential company data online

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Employees could be unknowingly exposing their company’s confidential data to cyber criminals, according to research from IT staffing provider Modis.

According to the research, over half (51%) of employees with a company smartphone never consider whether they are compromising customer security when uploading or downloading data to their phone.

A further 50% said they were similarly lax when using company PCs or laptops.

In addition, employee knowledge of policies around cyber crime is poor. Two in five employees (40%) said they weren’t aware of company security policies around using phones, 27% said they were unaware of data protection policies around using email and 25% were unaware of policies around using a company PC.

Roy Dungworth, managing director of Modis, said: “The rise of flexible working and cloud computing through different devices that operate online has created a multitude of points at which cyber criminals can access a company’s data.

“With cyber security such a high profile issue, employers are now aware of the risks, but few realise that their own employees are their greatest vulnerability.”

He added: “Employers must be explicit about the policies which govern the way their employees use every piece of hardware and software at their disposal, from laptops and tablets through to email and the intranet.

“Every time an employer introduces a new device to enable employees to work remotely, robust policies must be made and communicated as part of the introduction of these devices.”

The research of over 1,200 UK employees was carried out between March and April 2013.

Should employers vet the social media accounts of potential employees?

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Last month Kent police’s new youth police and crime commissioner, Paris Brown, was pressured into stepping down a week after being hired. The reason: the 17-year-old had tweeted homophobic and racist remarks before she landed the job. The police admitted they had not vetted social media during her recruitment. This highlights a growing issue for many employers. Do you think organisations should vet the social media accounts of potential employees, or can this lead to discrimination?

HR magazine asked two HR directors for their views. Today: Stella Cheetham, HR director at Dimensions (a charity that supports people with autism and learning disabilities) offers her opinion.

“As a national support provider for people with learning disabilities and autism, the values of our 5,000 employees are core to our organisational mission. We help vulnerable people to have choice and control over their lives, so attitude is extremely important.

Ensuring that anyone working for us shares our values is a vital part of recruitment and selection.

We do not review social media usage prior to recruitment and have no plans to. We use other ways to identify people’s values and how they apply in a work context, including situational judgement questionnaires based on the behaviours of our top-performing support staff.

We also draw on the judgement of the people we support throughout the selection process, inviting them to interview potential employees. This technique has shown the people we support are excellent judges of who has the right approach. I believe the system we use would have teased out the issues in question without the need to track back through Facebook or Twitter accounts.

I think monitoring social media usage as a recruitment tool carries the risk of age discrimination against younger people. The over-50s age group will have less social media presence, resulting in less potential for negative information about them being available than those in their 20s. On social media sites, people reveal their age, marital status and whether they have children. This information should not play a part in recruitment, but once available it is hard to defend whether it influenced a selection decision.

A year ago we introduced a social media policy, which I feel is necessary to protect the organisation’s reputation and the privacy of people we support. The policy is communicated to all staff and links to our disciplinary process.

While I understand why some HR departments vet social media, the fact that other stringent processes are successful for us when employing staff means we have no plans to introduce it here.”

Zero-hours contracts and the rise of the disengaged workforce

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In April 2013, results from the Workplace Employment Relations Study highlighted a dramatic rise in zero-hours contracts for UK workers.

The contracts, initially popularised in the part-time and student workforce, have risen 11% since 2004 with a growing number of large charities and public sector organisations opting for the structure, arguing they provide flexibility for those juggling family commitments.

Zero-hours contracts by definition do not guarantee an employee a fixed number of working hours per week. As such, available work is often dictated by business performance, which can mean that for smaller companies whose quiet periods can often extend over a number of weeks, workers can be faced with nearly a month without income.

The retail sector is a primary purveyor of this ad-hoc structure, with even big-name brands like Abercrombie and Fitch and Hollister hiring large swathes of employees under un-fixed contracts, suitable for the undergraduate hoping to earn a little spending money but having a crippling effect on those dependent on the wage.

Brand engagement firm Maverick commissioned an independent survey in March 2013, into worker engagement levels across all sectors in the UK. Of those questioned, retail employees were some of the most disconnected in the country with 77% admitting to ‘not engaging’ with their company’s brand values.

Employees of any kind, at any level, should be actively ‘selling’ their companies and its associated values to people in every conversation they have; with investors, customers, suppliers and even when talking about their jobs with friends. The research found, not only were the majority of UK workers unlikely to do this, many didn’t even know what the values were in the first place.

We all know it’s easy for people to get bogged down in day-to-day tasks and forget the basics, but as the research found the fundamental lack of grassroots training is reaching worrying levels. The report highlighted that a further 63% of workers in the retail sector confessed to never being trained on the importance of their company’s values. This may not be such a problem for part-time workers but as we have seen, increasingly these no-fixed-term arrangements are appearing for roles which demand a higher degree of knowledge including those in law enforcement and the NHS. For these employees, a precarious work structure offers them little encouragement to go beyond the call of duty, something desperately needed in front-line public sector roles.

The findings mirror the issues under close scrutiny by the wider UK business community, following the launch of the Engage for Success taskforce. In its research, the initiative revealed, by investing just 10% more in staff engagement, UK businesses in all sectors could add £2,700 per employee per year in profits. This could result in a staggering £49 billion growth across UK plc, equivalent to 3% of the country’s GDP.

Add to that the fact a quarter of employees working for companies who regularly advertise weren’t aware of their firms’ promotional messages, or what they were expected to do to support marketing campaigns at the point of sale, and it’s not difficult to see why the Budget’s failure to freeze the sharp rise on business rates has brought little comfort to UK retailers.

We cannot expect a magic formula to make engagement happen. It’s a long journey that in most cases starts at the top of the organisation and slowly filters down throughout the business. It’s worth remembering, beyond brand values and visions, what employees seek – indeed, what we all seek in our work life – is a blend of tangible and intangible elements that together create an environment of trust, stimulation, contribution, recognition, development, learning and support (monetary and otherwise), attributes which short-sighted zero-hour contracts are unlikely to inculcate.

Only organisations that understand and work towards these fundamentals are likely to enjoy sustained success.

This article is published courtesy of HR magazine and was writtenby Simon Kenwright, director of engagement at brand engagement firm Maverick