The Government has published 10 factsheets that provide further details of the measures included in the Bill. The factsheets cover:

Each factsheet typically sets out the current legal framework applicable to a particular employment right. It then describes the Government’s aims for the proposed changes and briefly describes the proposals.

The table below summarises some key proposals as described in the relevant factsheet:

The government plans to introduce significant changes to some key areas of employment law, primarily through the new Employment Rights Bill. The content of the Bill is not yet known, but a briefing note from the government sets out the main proposals.

They are to:

The government says these changes will be introduced within its first 100 days of taking office, so the draft bill is anticipated shortly. The bill will apply to England, Scotland and Wales.

In addition, the government also announced a new Equality (Race and Disability) Bill which intends to “enshrine the full right to equal pay in law” for persons from ethnic minorities and disabled persons. This bill proposes mandatory ethnicity and disability pay gap reporting. We await further details as to how such reporting will work in practice.

Photograph: “Pedestrians” by Pixabay user Brian Merrill used under Pixabay content licence

Under UK employment law, an employer needs a fair reason in order to dismiss an employee. It is unclear what reason P&O is likely to rely upon to justify the sackings. The company reportedly said the sackings were necessary “to reduce our crewing costs by 50 per cent, secure the future of our business and set it up for growth”.

One reason P&O Ferries might rely on is redundancy. This reason is appropriate where dismissal is due to a need to reduce headcount. However, P&O Ferries could struggle to prove that this was a genuine redundancy situation. It does not appear that staff numbers are being reduced; the main motivation appears to be reduction of staffing costs.

Alternatively, P&O Ferries could rely on the catch-all category of “some other substantial reason” (SOSR). This reason is typically used by employers where the reason for dismissal does not align neatly with one of the other legally accepted reasons for dismissal.

Whatever reason is chosen an employer must follow a fair procedure when dismissing staff. The appropriate procedure to follow depends on the reason for dismissal. With either redundancy or SOSR, a fair process involves consulting with employees prior to their dismissal. Given the swift manner in which the dismissals took place, no form of consultation seems to have occurred.

Without a fair reason or a fair procedure being followed prior to dismissal, P&O Ferries may find itself facing claims of unfair dismissal in the employment tribunal. However, those are not the only claims it could potentially face.

Where 100 employees or more are facing dismissal, an employer is legally required to take certain steps under collective consultation legislation. These include consulting collectively with employees at least 45 days before the date of the first dismissal. The penalty for not engaging in collective consultation is a protective award for each employee of up to 90 days’ gross pay. This is one of the most expensive liabilities an employer may face in employment law.

Another requirement is the need to notify the Secretary of State of the Department for Business, Energy and Industrial Strategy (BEIS) of the planned dismissals. The notification must be sent to BEIS at least 45 days before the first dismissal. Failure to do so is a criminal offence punishable by a fine. According to reports, the Government only learnt of the planned dismissals the night before the P&O Ferries announcement. The company’s directors could face criminal proceedings for failing to comply with the collective consultation obligations.

According to reports, P&O Ferries has offered its employees severance packages containing enhanced redundancy payments. These are likely being offered as a means of staving off claims for unfair dismissal and failure to carry out collective consultation. However, the company cannot dispel the potential criminal charges the company [...]]]> http://lawandlabour.com/po-ferries-sackings-are-they-unlawful/feed/ 0 http://lawandlabour.com/xerox-employees-job-did-not-transfer-to-the-philippines/ http://lawandlabour.com/xerox-employees-job-did-not-transfer-to-the-philippines/#comments Sun, 01 Oct 2017 08:59:09 +0000 http://lawandlabour.com/?p=2520 Generally, the fact that one’s work is being transferred overseas is enough to make an employee object to the transfer. But in the case of Xerox v Zeb, the employee decided that he was willing to relocate from Wakefield in the UK to Manila in the Philippines. The question was whether he was entitled to transfer with his UK terms and conditions of employment preserved.

Mr Zeb worked in the Finance Accounting team at Xerox in Wakefield. In 2014, Xerox decided to move the services carried out by his team offshore to Manila. The transfer of services was covered by the transfer of undertakings legislation (TUPE). The affected staff were given a choice of either objecting to the transfer, in which case they would receive an enhanced redundancy package, or not objecting, in which case they would receive statutory redundancy pay only.

Mr Zeb chose not to object to the transfer. He argued that under TUPE he was entitled to transfer to Manila on his UK terms and conditions of employment. These were much more favourable than the local terms and conditions on offer for the job, therefore Xerox (who was hoping to make cost savings by moving the jobs offshore) disagreed. Xerox dismissed Mr Zeb in October 2014 and paid him statutory redundancy.

Mr Zeb complained that he had been unfairly dismissed. He argued that redundancy was not the real reason for his dismissal, but, if it was, Xerox had failed to follow the correct procedure before making him redundant. The Employment Tribunal agreed with Mr Zeb that redundancy had not been the real reason for his dismissal. It further found that his contract had been varied under TUPE and he was entitled to work in the Philippines under his UK terms and conditions. Xerox appealed the Tribunal’s decision.

The Employment Appeal Tribunal (EAT) disagreed with the Tribunal’s judgment. It found that Mr Zeb’s employment contract had not been varied because the parties had not agreed as to the proposed change to his terms. Mr Zeb wanted to changed his place of work to Manila, but retain his remaining UK terms, while Xerox would only accept his relocation to Manila if he was employed under the same terms as local staff. No agreement had been reached and the contract could not be varied unilaterally, therefore Mr Zeb’s contract had not been varied.

The EAT also found that the Tribunal had erred when considering the reason for dismissal as the judge had failed to apply the requisite test for redundancy dismissals correctly. The EAT found that the Tribunal should have focused on the reason for Mr Zeb’s job being terminated, and not why Xerox had refused to employ him offshore. A further error was the Tribunal’s failure to consider Regulation 7 of TUPE which covered transfer-related dismissals.

In conclusion, the EAT allowed Xerox’s appeal and remitted the case to a new Tribunal for reconsideration.

CASE Xerox Business Services Philippines Inc Ltd v Mr J Zeb, Employment Appeal Tribunal, 24 July 2017

Mr Ktorza was employed in JP Morgan’s sales team. His salary was £270,000, but bonus payments could take his remuneration into the millions. In November 2014, he was suspended for having engaged in “short-filling” – an activity in which only part of a client’s order was carried out – which was viewed as being improper. At that time, JP Morgan had just changed its practices around short-filling following scrutiny by the US authorities. Short-filling became the domain of the trading team, but sales staff were forbidden from carrying it out.  When Mr Ktorza was asked to account for his actions at a disciplinary hearing in May 2015, he stated that he was unaware that the bank had changed its practices regarding short-filling.  The bank did not accept his explanation as it felt that he should have been aware of the change of practice and in June 2015 he was dismissed with notice.

Mr Ktorza subsequently brought a claim of unfair dismissal against JP Morgan.  He succeeded in his claim after the Employment Tribunal decided that the bank had failed to show that his conduct had been culpable, which it interpreted to mean “negligent, with guilty knowledge, dishonest, or just reckless”.  The bank appealed to the EAT.

The EAT allowed the appeal after finding that the employment judge had substituted his own conclusions for those of the bank.  The EAT found that the key mistake made by the Tribunal judge had been to mix the various stages of the test for unfair dismissal from section 98 of the Employment Rights Act 1996:

“In effect, therefore, the Employment Judge has elided two different aspects of section 98: section 98(1), where it is for the Respondent to show the reason; and section 98(4), where the decision as to whether the Respondent acted reasonably in treating the reason as sufficient is one for the Employment Tribunal taking into account of all the circumstances and keeping carefully in mind that there may be a range of different ways in which an employer may act reasonably.” Employment Appeal Tribunal

The Tribunal  judge had erred by holding that for a dismissal to be fair the employee should have a “subjective awareness” that their misconduct would incur “the disapproval of employer, clients or fellow employees”. That approach was wrong at law and imported a criminal concept of dishonesty into the realm of employment law. The EAT concluded that it was not for JP Morgan to establish that Mr Ktorza knew what he was doing was wrong; the bank merely had to establish the reason for which Mr Ktorza was dismissed.  The Tribunal’s job, in deciding whether the dismissal was fair, was to consider whether the bank had acted reasonably in treating the reason as sufficient to dismiss.

The case was remitted to a different Tribunal to be reconsidered.

CASE JP Morgan Securities Plc v Mr P Ktorza, Employment Appeal [...]]]> http://lawandlabour.com/culpability-not-relevant-to-unfair-dismissal/feed/ 0