In preparation for the removal of the statutory procedures under the provisions of the Employment Bill in April 2009, ACAS has produced for consultation a revised draft Code of Practice which takes into account the changes in the Employment Bill. ACAS has also now produced a draft Guide which is intended to be a fuller, free-standing and non-statutory guide to the operation of the Code. This focuses on the practical side of operating the disciplinary and grievance procedures.

Guidance on data protection issues in TUPE transfers
The Information Commissioner's Office has published guidance to help companies comply with their obligations under the Data Protection Act 1998 when providing employee liability information under reg 11 of The Transfer of Undertakings (Protection of Employment) Regulations 2006. Employers who provide the information will not be in breach of the DPA, however, the guidance confirms that both parties need to comply with data protection principles when handling this information such as ensuring that it is up-to-date, accurate and secure.

The guidance also covers issues such as due diligence requests, the retention of employment records and personal information in the context of a TUPE transfer. For a copy of the guidance please see here

Immigration and TUPE - good news for transferees
We have previously reported on the changes to the immigration rules which came into force on 29 February this year which included the new criminal offence of knowingly employing someone without permission to work in the UK and liability for a new civil penalty where an employer has negligently employed someone without permission to work in the UK. This raised some difficulties on TUPE transfers but the Home Office has given further guidance.

As a result of the changes in February the UK Border Agency (UKBA) changed its approach to the document-checking obligations on a TUPE transfer. Previously the buyer could rely on checks carried out by the seller before the transfer. The UKBA guidance on the new regime stated that buyers only have a "grace period" of 28 days after the transfer to carry out checks. This gave rise to a number of concerns and in particular whether the buyer should carry out the checks at the time that each individual was employed or at the time of the transfer. It has now been confirmed by the Home Office that the guidance is not sufficiently detailed but that buyers do not need to make individual document checks on employees as long as they can show they were acquired as part of a TUPE transfer.

All employees who are expecting babies on or after 5 October 2008 will be entitled to the same benefits during OML and AML. This follows the amendments to the Sex Discrimination Act in April this year. The Government is meant to be making amendments to the Maternity Regulations to reflect this, although these have yet to be made.

The HMRC has issued guidance on the entitlement of women to receive non-cash benefits and salary sacrifice during OML and AML. For further information see here.

Working Time Opt-Out
The EU Employment Council has reached agreement on a compromise text that provides for the possibility of retaining the opt-out from 48 hour maximum working week. The compromise text requires that the opt-out "be accompanied by a number of conditions in order to guarantee the protection of health and safety of workers".

Agency Workers Directive
The EU Employment Council has also reached a common position on the draft Directive on agency work - this follows on from the recently agreed deal between the Government, TUC and CBI to give agency workers equal treatment with permanent counterparts after 12 weeks.

Business Visitors
On 25 June 2008 the Government's UK Border Agency ("UKBA") announced forthcoming changes to the UK's visitor visa regime, which will complement the UK's new Points Based System which is being rolled out through 2008 and 2009.

The UKBA is to create a new class of visa, called "Business and Special Visitors", and will be amending the Immigration Rules to make it clear what business visitors can and cannot do whilst visiting the UK. This will include clarifying the arrangements for entry of advisers, consultants and other similar individuals who are employed abroad by a company with a branch, or a client, in the UK. It will also clarify the arrangements for individuals entering the UK as business visitors more generally. This announcement is very welcome, as the issue of what activities are, or are not, permitted to be undertaken whilst in the UK as a business visitor has become an increasingly grey area.

The UKBA will publish its Statement of Intent on Business and Special Visitor Visas in September 2008, and the new arrangements are expected to be incorporated into the Immigration Rules shortly thereafter.

Illegal Migrant Workers - Employers to be "Named and Shamed"
The UKBA has announced its intention to "name and shame" employers of illegal migrant workers.
With effect from 19 June 2008, the UK Border Agency will publish the details of employers who have been found to be liable for payment of a civil penalty for employing illegal migrant workers, or convicted of the new criminal offence of knowingly employing an illegal migrant worker.

The information published will include the name and location of the company, the name of the responsible person within that company, the number of illegal workers found, and the size of the civil penalty levied.

The information will be published the UKBA's website on a monthly basis. The UKBA has also confirmed that it will release this information to media organisations, including local newspapers and radio stations.

Disability-related discrimination - the House of Lords narrows the scope
The House of Lords has recently handed down a potentially far-reaching decision concerning the meaning of disability-related discrimination and overturned the established position on the correct comparator. This is likely to make it much more difficult for employees to bring certain types of claim under the Disability Discrimination Act. More.

The case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm concerned a housing authority's decision to evict a schizophrenic tenant who had unlawfully sublet his flat. Although this was a housing case the principles are relevant to employment cases. Their Lordships overruled the Court of Appeal's decision in Clark v TDG Ltd t/a Novacold and held that the correct comparator is construed much more narrowly. For example, if an employer dismisses a disabled employee for long-term absence their Lordships held the correct comparator would be someone who had been absent long-term but who was not disabled. This is contrary to Clark where the Court of Appeal held that there was no requirement for the comparator to be "in the same or similar circumstances" as the disabled claimant, i.e. a person who was not absent from work and who would therefore not have been dismissed. Clark made it very easy for claimants to establish a prima facie case of discrimination but this decision will mean that in future it will be much more difficult for claimants to establish this.

Finally, they also held that in order to be liable for discrimination, a respondent must know, or ought reasonably to know, of the claimant's disability, again, contrary to an EAT decision.

Could changing terms and conditions really be redundancy?
In Martland & Ors v Co-operative Insurance Society Ltd CIS tried to agree changes to terms and conditions of employment with its employees. The CIS was facing severe financial difficulties and to address this it decided to introduce changes to the nature of the workforce which included altering the duties of its financial advisers and introducing a new remuneration system for them. The FAs refused to agree to the changes and the CIS implemented them by terminating the contracts and offering to re-engage on the new terms. Seven of the 123 dismissed FAs brought claims for unfair dismissal and claimed that the reason for their dismissal was in fact redundancy and that they were therefore entitled to an enhanced contractual redundancy payment.

The case focused on whether their dismissals fell within the statutory definition of redundancy. The tribunal decided that the changes to the way in which the work was performed did not constitute a change in the kind of work and therefore there was no redundancy situation.

The tribunal accepted that the changes were significant but rejected the argument that these amounted to a redundancy as a matter of law. The EAT upheld this decision and held it was a matter of fact for the tribunal to determine.

Although the tribunal and EAT did not find that there was a redundancy situation, employers should be aware that this is an argument which could succeed in another case as each case will depend on its facts. If the nature of the role stays the same, then any change to the way in which it is carried out, will not trigger a redundancy. However, if the employer seeks to change the nature of the role through a re-organisation process, it is risking this argument potentially being successful.

Garden leave and the right to work
The recent case of SG &R Valuation Service Co v Boudrais and Ors examined the issue of garden leave where there is no contractual right to exclude an employee from the workplace in this way.

Mr Boudrais and Ms Smith were employed by SG & R Valuation Services. They resigned on notice, but the company became concerned about their activities, asked them to remain at home and subsequently sent letters suspending them.

The employees argued that keeping them at home was a repudiatory breach of contract as they had no garden leave clauses in their contracts. There was evidence that the employees planned to join a competitor, had taken confidential information and had solicited other employees. Following an application for an interim injunction, the employees returned the confidential information and gave undertakings not to solicit fellow employees during the remainder of their notice.

The court upheld the employers right to put them on garden leave. They found that an employee's "right to work" is on the basis that they are ready and willing to work in accordance with the terms of their contract. The court found that in this case that was not the position as the employees had breached their contracts and shown "hostility" towards SG & R, the court therefore granted the injunction.

This case shows that even when there is no specific garden leave clause, the "right to work" is affected where the employee's behaviour makes clear they are not ready and willing to do the work.

For more information about our Employment & Pensions Team please contact Jo Wort at joanna.wort@charlesrussell.co.uk

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