Transfer of Undertakings
In Power v Regent Security Services Ltd (20070
IRLR 226 EAT), a case brought prior to the 2006 TUPE Regulations
coming into effect, the EAT holds that an employee could
enforce a contractual variation agreed with the transferee,
even though the transfer was the reason for the change.
It was not open to the employee to seek resile from the
change on the grounds that the variation was by reason of
the transfer and therefore void. It is well established
that an employee cannot waive his or her right to continue
to be employed after a transfer on the same terms and conditions
as applied before the transfer.
In the Transfer of Undertakings (Protection
of Employment) Regulations 2006, which replaced the 1981
TUPE Regulations as of 6 April 2006, specific provision
regarding this is made in reg.4 (4). This provides that
any purported variation of a contract will be void if the
reason for it is either the transfer itself or a reason
connected with the transfer that is not an economic, technical
or organisational reason entailing changes in the workforce.
Nothing in the 1981 TUPE Regulations prevented
an employee from seeking to take the benefits of a contract
as varied by agreement with the transferee. The employer
could not defend a claim in relation to the contractual
term by arguing that the term was void because the contract
had been varied by a reason of the transfer.
Rights in relation to the variation of a contract
in the context of a transfer are given to the employee but
not the employer. An employer may not, therefore, resile
from a voluntarily agreed variation even where it was made
by reason of the transfer.
Whistleblowing: Worker's 'reasonable belief'
need not be factually correct
A recent case at the Court of Appeal held
that to qualify for protection from detriment or dismissal
for whistle blowing, a worker must hold a "reasonable
belief" that the information disclosed tends to show
that a criminal offence will be committed or that there
will be non-compliance with a legal obligation. However,
provided that the worker's honest belief is reasonably held,
protection will not be lost merely because he or she is
mistaken about the existence of such a criminal offence
or legal obligation.
The circumstances in which an employee may
be protected from detriment or dismissal as a result of
making a "protected disclosure" within the meaning
of PART IVA of the Employment Rights Act 1996 (ERA) are
complex. Different requirements as to the nature of disclosure
and the conduct of the employee apply depending on to whom
the disclosure is being made. The basic definition of a
qualify disclosure is given in s.43B, which states that
it is a disclosure of information "which, in the reasonable
belief of (the employee), tends to show one or more of the
following". The follows a list of matters ranging from
the commission of criminal offences or the breach of legal
obligations, to damage the environment.
Health & Safety
National Minimum Wage
Gordon Brown is drawing up plans to vary the
minimum wage region by region across Britain.
The Prime Minister is understood to have been
persuaded by academic studies which have found that having
a single minimum, currently £5.35 an hour, right across
the UK, is uneconomic.
A senior Labour Party source said that a "regional
minimum wage" was the "logical next step"
after Mr Brown's announcement as chancellor four years ago
that regional price indices would be published to show variations
in inflation rates across the country.
In the past, Mr Brown has signalled his intention
to move to a more flexible pay regime with more account
taken of variations in prices across the country. In June
2006, he declared in his Mansion House speech: "Britain
will have to become a more flexible economy – more ready
to change, with more local and regional pay flexibility,
better equipped for the long term, with more focus on the
jobs and skills of the future."
A recent report from The Economic Research
argued that northerners should receive lower unemployment
benefits and be paid a less generous minimum wage.
The council's study, which used a raft of
official labour market and price data, said the minimum
wage for Londoners should be boosted to £6.90 an hour. It
also said the level in the north-east should be cut by 57p
to £4.78 an hour, while workers in Yorkshire should get
a minimum of £4.95, employees in Northern Ireland should
be paid at least £4.80 and those in Wales more than £4.84.
The report called for Britain to adopt a similar system
to those operating in Switzerland and America, where local
authorities are allowed to set benefits, the minimum wage,
and the salaries of public sector workers.
The national minimum wage was introduced by
Labour in 1999, with an original level of £3.60 an hour.
Currently the legal minimum is £5.35 per hour for 22 year
olds and above, £4.45 per hour for 18 to 21 year olds and
£3.30 per hour for under 18s who have finished compulsory
education. There is no legal minimum for those who have
not yet finished compulsory education. More than 1.5 million
workers have benefited from the introduction of the national
EQUALITY AT WORK
A framework for fairness
The UK Government are consulting on proposals
for a single Equality Bill for Great Britain. The proposals
have been developed as a result of the Discrimination Law
Review, launched in February 2005 to consider the opportunities
for creating a clearer and more streamlined discrimination
legislative framework that produces better outcomes for
those who currently experience disadvantage.
Changes to sex discrimination legislation
The Government has confirmed that changes
to sex discrimination legislation, reflecting a High Court
decision that amendments to the Equal Treatment Directive
were not properly implemented, will be introduced 1 October
On 1 October 2005, the Employment Equality
(Sex Discrimination) Regulations 2005 amended the Sex Discrimination
Act 1975 to implement the amended Equal Treatment Directive,
which prohibits both sex-based harassment and sexual harassment.
The Regulations also amended the definition of indirect
sex discrimination to make it clear that less favourable
treatment on the grounds of pregnancy or maternity leave
amounts to unlawful sex discrimination.
The High Court, in judicial review proceedings,
agreed with the Equal Opportunities Commission that it is
necessary to amend various aspects of the legislation, as
they do not comply with the directive.
Paternity leave and pay is extended
The Government intends to allow fathers to
benefit from up to 26 weeks' paid additional paternity leave
if the mother of the child returns to work before the end
of the maternity leave period to which she is entitled.
The Work and Families Act 2006 will bring this provision
Staff caught short in ERI loo-roll
The Evening News recently reported that
staff at the Edinburgh Royal Infirmary have been forced
to hunt for toilet rolls after the contractors who supply
the hospital ran short of stock.
Frustrated workers at the hospital complained
of finding cubicle after cubicle with no toilet roll
in them. The private company Haden which supplies the
ERI blamed the problem on an unexpected surge in demand
for toilet paper.
One UNISON member said that he challenged
cleaners about the lack of loo roll, but was told that
it was being prioritised for hospital wards.
Around 2000 staff work at the ERI, dealing
with thousands of patients every year. Facilities management
at the hospital is handled by the firm Haden, which
is contracted to PFI operator Consort. James McCafferty,
director of acute services and workforce with NHS Lothian
commented: "Consort has assured us that this problem
has been addressed and that our staff will no longer