Global Ltd v Nurmohamed . That case concerned an employee making a disclosure about contractual matters (commission payments) where 100 senior managers were affected. The EAT found that provided a section of the public, rather than simply the individual, was concerned, this was sufficient to meet the test.
The Chesterton case is the subject of an appeal to the Court of Appeal (listed for October 2016).
TUPE: Change in Identity of Employer 16 November 2015
Is there a transfer of an undertaking when an employee changes from being employed by a single employer to a group of employers which includes the original employer?
No, held the Employment Appeal Tribunal (EAT) in Hyde Housing Association v Layton , upholding the employers' appeal, there was no transfer of the Claimant's employment on the facts. The EAT also noted that multiple transferors would not prevent TUPE applying.
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
The Claimant had been employed by Martlet, a provider of social housing, which joined with other providers to form the Hyde Group, which was not a separate legal entity. After a restructure the Claimant was dismissed by Martlet and re-engaged on a new contract by a group of employers including Martlet, an arrangement reportedly common in the sector. The Claimant claimed unfair dismissal, the issue was whether his employment transferred under TUPE regulation 3 (1) (a). The EAT held that since Martlet had retained liability for the Claimant's employment notwithstanding that its liability was now joint and several with other employers, the change of employer was not legally relevant for TUPE purposes. The EAT also held that the Acquired Rights Directive did not require TUPE to apply, as the employer's legal position with regards to the employee was unchanged (as with a change of shareholders). Noting the potential importance and novelty of the issue, the Claimant received leave to appeal.
Disability Discrimination and Reasonable Adjustments 21 December 2015
Should the duty to make reasonable adjustments under s.20 of the Equality Act be abolished?
No, held the Court of Appeal in Griffiths v Secretary of State for Work & Pensions .
With thanks to Daniel Barnett’s employment law bulletin for a summary of the case.
The Appellant was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She asked the Respondent to withdraw the warning issued after a 66-day absence from work, mostly attributable to her disability, and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee. The Respondent refused, and the Appellant complained of a failure to make reasonable adjustments required under the Equality Act. The provision, criterion or practice (PCP) relied on was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” The employment tribunal and EAT felt bound by the perplexing decision of the EAT in Royal Bank of Scotland v Ashton to hold that the PCP did not put the Appellant at a disadvantage compared with those who were not disabled, because a non-disabled employee absent for a similar period would have been subject to the same process. Hence no s.20 duty arose. The trouble with Ashton was that it abolished the duty to make reasonable adjustments at a stroke. If the correct comparator is a person on whom the practical effects of a PCP are the same as they are on the disabled person, no s.20 duty can ever arise: the devoted pet-owner’s dinner is as much disrupted by the restaurant’s ban on dogs as the blind diner’s.
Though dismissing the appeal (for other and less interesting reasons), Elias LJ has finally laid Ashton to rest.
CIPP Policy News Journal
25/04/2016, Page 79 of 453
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