Policy News Journal - 2016-17

The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal

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TUPE: Employee Liability Information 30 March 2017

When giving Employee Liability Information to a transferee pursuant to reg 11 of TUPE, a transferor incorrectly stated that a Christmas bonus was non-contractual, when it turned out it was contractual. Was this a breach of reg 11, giving rise to a compensation claim?

No, held the EAT in Born London Limited v Spire Production Services Limited .

Born took over a contract from Spire to print Sotheby's catalogues. Before the transfer, Spire provided Born with Employee Liability Information. Spire provided details of the employees' Christmas bonus, and stated that it was 'non-contractual'. Born contended that, because the bonus was contractual in nature, Spire had given incorrect Employee Liability Information and Born should be compensated for this misstatement under reg 12 of TUPE. The employment tribunal concluded that Born's claim had no reasonable prospect of success. For, even assuming the bonus was contractual, all regulation 11 had required Spire to do was to provide particulars of employment as defined by section 1 of the Employment Rights Act 1996. This did not require Spire to state whether or not remuneration was contractual. The EAT agreed. Section 1 of the ERA 1996 sets out the requirements on employers in respect of a statement of employment particulars. Those particulars were not to be read as limited to contractual terms and conditions. But there was no obligation to state whether the particulars were contractual or not. Saying that the bonus was non- contractual went further than the particulars required to be provided for reg 11 purposes. There was therefore no breach of reg 11. In cases like this it is up to the transferee to undertake more due diligence on whether employee remuneration is contractual or not. And had this been a case where the transferee enjoyed well drafted warranties and indemnities from the transferor, a claim against the transferor might have arisen accordingly. But in service provision change cases these are usually non-existent.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

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Supreme Court: Indirect Discrimination 10 April 2017

To succeed with an indirect discrimination claim, is it necessary to establish the reason for the particular disadvantage to which a group is put, compared to another?

No, held the Supreme Court in the decisions of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice .

The essential element is a causal connection between the provision, criterion or practice (‘PCP’) and the disadvantage suffered, not only by the group, but also by the individual.

In these important judgments, the Supreme Court has provided much needed clarification of the law and described a number of features of indirect discrimination with lots of helpful examples designed to assist.

Lady Hale explains that there are various reasons, or ‘context factors’ why one group may find it harder to comply with the PCP than others. They can be genetic, social, or even another PCP.

The PCP does not need to put every member of the group sharing the protected characteristic at a disadvantage.

The disparate impact or disadvantage can be established on the basis of statistics. Finally, the PCP may be able to be justified and there is no stigma or shame in doing so.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.


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