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Employment Law Update from EmployEasily HR

Workers falling ill during statutory annual leave must be entitled to reschedule the affected leave

The ECJ has held that a worker who becomes unfit for work during a period of statutory annual leave must, under Article 7(1) of the EC Working Time Directive, be entitled to reschedule the period of planned leave that coincides with the period of unfitness for work. It was already clear from Pereda v Madrid Movilidad SA that a worker who becomes unfit for work before a period of statutory annual leave must be able to take that leave at a later date. In the ECJ's view, it would be arbitrary, and contrary to the purpose of the Directive, to take a different approach where a worker falls ill after the leave has started. (Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others C-78/11 (ECJ).)

TUPE service provision changes: Effect of change of client

The EAT has overturned a tribunal decision that there was a service provision change for the purposes of regulation 3(1)(b) of TUPE 2006 on the change of a contractor where there was also a change in the client for whom the services were being carried out. The EAT held that there was no reason not to follow its earlier decision in Hunter v McCarrick that the service provision change definition requires the services carried out before and after the change to be on behalf of the same client. Therefore, the change in ownership of a building prevented a security guard, whose contract was terminated when his employer lost a contract to provide security services at the building, from relying on TUPE to claim unfair dismissal against the new contractor.

This decision and Hunter are significant for second generation outsourcing transactions in general and for commercial property transactions in particular. They mean that where ownership or management of a commercial property changes and at the same time facilities services are changed, facilities staff (such as cleaners or security guards) will not transfer to the incoming facilities provider and liability for termination of their contracts will remain with the outgoing provider, unless it can establish that there was a business transfer for the purposes of regulation 3(1)(a) of TUPE 2006. Hunter has been appealed to the Court of Appeal and is due to be heard in October 2012. (Taurus Group Ltd v Crofts and another UKEAT/0024/12.)

Redundancy: reduction in headcount not required

Under section 139(1)(b)(i) of the Employment Rights Act 1996 an employee is dismissed by reason of redundancy if their dismissal is wholly or mainly attributable to the fact that their employer's requirements for employees to carry out work of a particular kind have ceased or diminished or are expected to do so. The EAT has confirmed that it is not necessary to have a reduction in the number of employees carrying out work of a particular kind in order to satisfy this definition of redundancy. Therefore, reducing the amount of work to be done by the same number of employees can give rise to a "redundancy situation". In reaching this decision, the EAT departed from Aylward and others v Glamorgan Holiday Home Ltd UKEAT/167/02. (Packman t/a Packman Lucas Associates v Fauchon UKEAT/0017/12.)

Proposed wording on settlement offers, Enterprise and Regulatory Reform Bill

An amendment to the Enterprise and Regulatory and Reform Bill, tabled in Committee on 19 June 2012, contains proposed wording on settlement offers. This provides that, subject to exceptions, an offer made or discussion held with an employee with a view to terminating employment cannot be taken into account in unfair dismissal proceedings. The rule will not apply in cases where the complaint is one of automatically unfair dismissal. 


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