employment case law
appreciated during the tender process. The Learning and Skills Council offered £1.9 million to assist with these costs. Additionally, the College Principal made a proposal to the Board for staff restructuring and efficiency savings. Three hundred redundancies in offender learning were suggested, along with a review of terms and conditions in staff employment contracts. Staff were put at risk of redundancy and consultation commenced on the re-negotiation of contracts with university and college union. Subsequently, both claimants were told that they were no longer at risk but their salary would be subject to cuts of between 13.2% and 18.5%. The claimants objected to the pay cuts and ultimately, because of their refusal, were told by the college that they had no other alternative but to terminate their employment. In due course, agreement was reached and the claimants continued to work for the college. The Transfer of Undertakings (Protection of Employment) Regulations 2006 provide that it is unlawful to amend terms and conditions, or dismiss an employee, where the reason is the transfer itself, or a reason connected with the dismissal, unless there is an “economic, technical or organisational reason entailing changes in the workforce” (an ‘ETO reason’).
‘Changes in the workforce’ is read as changes in the numbers or functions of the staff. Case law shows that changing terms and conditions merely to avoid running two different pay scales, known as harmonisation, is not permitted. Though the tribunal found that the dismissals were for a reason connected with the transfer, the reason for dismissal was not the redundancy process but the refusal to agree to the new terms and conditions that the college were trying to impose. In terms of time, the redundancy process was over and the claimants had been told that they were no longer at risk by the time they received the letter regarding a change to their pay. The change in pay was for an ETO reason, but it did not entail changes in the workforce. The tribunal rejected the college’s assertion that where harmonisation is accompanied with redundancies, that this was not unlawful. The dismissals had therefore been unfair and it was ordered that the claimants be re-engaged on their previous salaries. This meant that the employees were entitled to return to work on their previous salaries.
...EMPLOYER’S OBLIGATIONS TOWARD AN EMPLOYEE ARE VASTLY MORE SIGNIFICANT THAN TOWARDS A SELF-EMPLOYED INDIVIDUAL
Upon appeal, the college argued that the whole process (that of redundancies and changes to terms and conditions) should be viewed as one and not looked at separately. The Employment Appeal Tribunal (EAT)
agreed with the original tribunal decision that the processes were separate and upheld the finding of unfair dismissal. The college also asked to review the tribunal’s decision to re-engage the claimants on the grounds that there would be worker discontent if the claimants were re- engaged on their previous salary. The EAT rejected this, relying partly on the evidence given by a witness in which it was stated that, should re-engagement on previous terms occur, the other workers would handle it.
Rogers v Craigclowan School UKEATS/0027/13/BI
Mr Rogers, the claimant, taught children how to play the bagpipes at Craigclowan School (‘the school’), a preparatory school run by the respondent charity. On starting he received a letter from the head teacher setting out certain terms of engagement, including notice periods, pay, and the fixed term nature of the contract. When the question arose as to the nature of the engagement, Mr Rogers contended that he was an employee of the school. However, the school came to the conclusion that he was a self- employed contractor. The determination of this question has many consequences
because an employer’s obligations toward an employee are vastly more significant than towards a self-employed individual. When Mr Rogers sought a declaration as to his employment terms and conditions at tribunal, at the same time as claiming that an unlawful deduction had been made to his pay, the tribunal found that he was a self-employed contractor. Mr Rogers appealed. The EAT agreed with the original tribunal decision. The tribunal will ask itself certain questions of the working relationship when determining the employment status of an individual. The areas of questioning are set out below: l Control – does the ‘employer’ have control over the working practices of the individual? The tribunal found that Mr Rogers himself controlled how he worked. The school did not specify the syllabus to be taught and Mr Rogers was free to choose which accrediting body the pupils should study for. Mr Rogers supplied the necessary materials initially, and subsequently the pupils were responsible for providing them. He was not required to attend training days, parents’ evenings or take part in appraisals. He had never taken paid holidays, nor received statutory sick pay when he was ill. l Personal service – in order to be an employee, the individual must be required to do the work themselves. It was found that on an occasion when Mr Rogers was not well and could not teach, he provided a substitute to teach his classes therefore there was no requirement for him to do the work himself. l Mutuality of obligation – there must be an obligation on the ‘employer’ to provide work, and the individual must be required to accept it. The tribunal found that Mr Rogers was not obliged to take on any pupil and he was only paid for hours worked. It was noted that Mr Rogers had never refused to take a child on. Although Mr Rogers was paid net of tax and national insurance, the tribunal placed no weight on this. The tribunal had been entitled to find that Mr Rogers was a self- employed contractor and the appeal failed.
PP
PayrollProfessional 41
HR and employment information HR focus
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56