Pinsent Masons report on the case of FNV v Smallsteps ; a chain of childcare providers, Estro Groep BV (EG), owned almost 380 childcare centres employing approximately 3,600 people. It became clear that EG could not meet its obligations, and it devised a plan which provided for restructuring the group under a pre-pack arrangement. A new company called Smallsteps was created. In addition to the plan for the pre-pack arrangement, EG had an insolvency administrator appointed. Smallsteps purchased approximately 250 of the 380 childcare centres and two days later, the administrator dismissed all of the EG employees. Smallsteps immediately offered contracts to 2600 employees, but 1000 were dismissed. Four former EG employees (who worked in childcare centres taken over by Smallsteps but who had not been offered contracts) and a Dutch trade union brought claims, arguing that the Applied Rights Directive applied to the pre-pack arrangement, and they should have transferred to Smallsteps. The court referred the question to the ECJ which decided that TUPE applied. TUPE applies where a business is being salvaged, and does not apply where it is being liquidated. The pre-pack was prepared before the declaration of insolvency, and the exemption from TUPE did not apply. The case was referred back to the domestic court for consideration. This appears to be the first case where the ECJ has considered the application of TUPE in a pre-pack situation. The decision accords with how pre-packs are treated in the UK, i.e. that administration is not instituted with a view to the liquidation of the transferor's assets, and that therefore TUPE will apply to pre-packs. TUPE Webinar Pinsent Masons has recorded a webinar which will help you plan ahead to avoid common pitfalls when dealing with TUPE transfers. View the recording here .
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Tribunal under duty to consider stigma future loss claim 11 July 2017
The Court of Appeal in Small v Shrewsbury and Telford Hospitals NHS Trust ruled that when the evidence in a 'whistleblowing' case suggests that a Claimant should receive damages for stigma and loss of future prospects, an employment tribunal should determine that, even if it not raised by the parties. The Claimant was a project manager for the Trust. He successfully represented himself at an employment tribunal claiming a detriment related to a protected disclosure after his contract was terminated. He did not make an express claim for 'stigma' damages under Chagger v Abbey National , i.e. a Claimant can recover damages for the disadvantage in the labour market from bringing a 'whistleblowing' claim and having been dismissed because of whistleblowing (as with discrimination claims). The Claimant appealed on the basis that it had been incumbent on the tribunal have considered awarding damages applying Chagger , even if such a claim was not expressly made out. The Court agreed and emphasised the importance of a tribunal taking for itself points that arise "as a matter of course", irrespective of whether they have been taken by the parties. On the face of the Claimant's witness statement, there was very explicit evidence pointing to long-term losses that could come under Chagger .
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Whistleblowing: Public Interest Requirement 13 July 2017
Can a disclosure which is in the private interest of the worker making it become in the 'public interest' because it also serves the (private) interests of other workers as well?
Potentially yes, held the Court of Appeal in Chesterton Global Ltd v Nurmohamed , but it will be heavily dependent on the facts.
The Chartered Institute of Payroll Professionals
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