Tupe and the carrying on of the same “activities”

A question on any TUPE service provision change is whether the new provider of the service will be carrying on the same activities. If not, no TUPE. In this case a transport company provided warehouse and distribution services for a client. That contract ended and a new company took on the work. The new company accepted the warehouse staff under TUPE but refused the drivers, saying they intended to use sub contractors so they were not carrying on the driving activities.  The Appeal Tribunal looked at the contract, which said the new company would be responsible for the driving element (even if they were intending to use sub contractors) and therefore TUPE did apply. The lesson here is be careful what you allow in a contract when agreeing to it, if it’s worded wrongly, you may get more employees than you bargained for. The full case can be read at the following link:http://www.bailii.org/uk/cases/UKEAT/2014/0301_13_2103.html Back to legal...

Redundancy pay and custom and practice

The Appeal Tribunal this week reminded us all that Custom and Practice as a way of forming contractual terms is very much alive and well. In this case the employer had consistently paid the statutory redundancy, but without a cap on a weeks pay. They then carried out a redundancy where they reverted to the statutory with a cap. The court ruled that where there was evidence that a practice was consistently applied, and well understood, and there was no evidence to the contrary, then this was a term of the contract. It helped in this case that the ex HR Manager gave evidence to say she thought it was “definitely custom and practice”. Read the full case at the following link:http://www.bailii.org/uk/cases/UKEAT/2014/0315_13_2503.html Back to legal...

LLP Can Be “Associated Employer” for Equal Pay Purposes

A recent case has established that LLPs rank as “associated employers” when it comes to claims under the Equal Pay Act.  This means that if you are an LLP, and are inheriting employees from a Council under TUPE, then those employees are able to compare themselves to employees back at the Council they left behind for the purposes of making claims for equal pay. This case can be read at:  www.bailii.org/uk/cases/UKEAT/2013/0027_12_2501.html.  Back to legal...

Final warnings subject to appeal

The courts have looked at whether an employer can take account of a final warning which is being appealed, at the time a fresh offence and therefore dismissal was being considered. The answer is that an employer can take the final warning into account, even though it was being appealed. The important point to note is that the employer did consider the circumstances of the final warning before dismissing for a similar offence. It will be important to demonstrate such consideration if relying on a final warning that is being appealed, so emails, notes or memoranda will be useful. The case is called Rooney v Dundee City Council and can be read at this link.http://www.bailii.org/uk/cases/UKEAT/2013/0020_13_1510.html Back to legal...