The Royal Mail Group (RMG) has won a legal victory against the Communication Workers Union (CWU) in a case that was not related to the current wave of postal worker strikes.

The case centred on a proposed trial franchise arrangement with WH Smith that dated back to June 2006. The CWU had expressed concern that the trial was being undertaken on the assumption that TUPE regulations did not apply.

In response, RMG accepted that there were would be a transfer of undertakings, but stated that it believed that no employees would be transferred, as all staff affected would either be redeployed (via an express contractual right) or would take voluntary redundancy before the transfer occurred.

During the case, the tribunal found that RMG had not complied with the TUPE regulations, which require a transferor to notify affected employees of the “legal, social and economic” implications of the transfer. The tribunal also determined that the RMG’s belief that employees would not be transferred was not a genuine belief.

The decision was appealed and taken to an Employment Appeal Tribunal (EAT). The EAT found that, while employers are required to provide their genuine belief of the legal, economic and social implications of the transfer, they are not obliged to warrant the legal accuracy of the information they provide.

Further, the EAT determined that an employer is not in breach of TUPE regulations if its genuine belief as to the legal, economic and social implications of the transfer turns out to be incorrect.

It was found that the RMG was incorrect in its belief that no employees would be transferred, but that this did not mean that the belief was not genuine. In fact, there was no evidence to suggest that the belief was not genuine. This judgement was subsequently upheld by the Court of Appeal.

Technorati Tags: Employment Appeal Tribunal, TUPE Regulations, Voluntary Redundancy

Following a significant security breach, Mr Anthony Sumara, the Chief Executive of Mid Staffordshire NHS Foundation Trust, has pledged to take action to ensure that the organisation does more to comply with the Data Protection Act in future.

The breach happened when a member of the Trust’s Human Resources staff transferred information, including personal information about a Trust employee, on to their home computer. Some of the information related to a previous criminal conviction the employee had.

The Information Commissioner’s Office (ICO) investigated the breach, and found that the information had not been protected by encryption or a password. The ICO determined that the Trust had committed a serious breach of the Data Protection Act by failing to comply with information security requirements.

In response to this, Mr Sumara signed an Undertaking with the ICO in which he pledged to introduce a wide range of information security reforms, including new rules for staff on keeping sensitive information secure when working from home.

One of the main criticisms the ICO had of the Trust was that, after it had learned of the breach, it did not act with the appropriate urgency to remedy the situation and secure the data concerned. The Trust has now pledged to respond more quickly to similar situations in the future, and take action to either recover or prevent access to any insecure data as soon as possible.

Assistant Information Commissioner Mick Gorrill commented: “I strongly advise organisations to avoid instances where employees can download and transfer personal information to home computers. This incident should never have occurred and could easily have been averted.

“If personal details fall into the wrong hands, individuals can experience considerable distress. It is vital that personal information is handled securely, especially where sensitive personal information, such as conviction data is concerned.

“I am pleased that the Trust is taking remedial action to guard against security breaches of this nature.”

Technorati Tags: Data Protection Act, Data Security, Information Commissioner's Office

According to figures recently released by the Health and Safety Executive (HSE), there has been a marked improvement in the UK’s workplace health and safety record.

The new statistics, covering the period from April 2008 to March 2009, show that there has been a significant reduction in the number of people killed, injured or suffering from work-related ill health.

All in all, 29.3 million working days (which averages out to 1.24 days per worker) were lost to injury and ill health last year, down from 33.9 million the previous year.

Fatal injuries in the workplace also fell considerably, down from 233 to 180, and there were over 7,000 fewer instances of injuries at work classified as serious or incurring more than three days off work.

When compared with similar figures published across Europe, the UK is now one of the safest places to work in the EU.

Major injuries in the workplace have been consistently falling since 2000, and the new figures show this trend continuing, with the number down from 29,389 last year to 28,692 this year.

The number of self-reported injuries also fell, going down to 246,000 from last year’s 299,000. Thanks to this fall, 1.6 million fewer working days were lost through all types of injury.

In addition, the number of people suffering from work-related ill health dropped by 79,000 compared with last year, reaching a new low of 1.2 million.

Judith Hackitt, Chair of the HSE, commented: “The improvements shown in these statistics point to other factors than simply a reduction in activity levels in a recession. While the recession will undoubtedly have an impact, the effect is not direct and easy to explain.

“History suggests that when we start moving back into economic growth the rate of work-related injuries will tend to increase. Preventing history from repeating itself is a challenge facing everyone with a stake in health and safety in the workplace - regulators, employers and employees alike: we all need to be part of the solution.”

The HSE continues to do its part in enforcing safety legislation by taking action against companies that put their workers at risk through non-compliance. 1,231 cases were taken to court in 2008/9, and 8,054 enforcement notices were issued.

Technorati Tags: Accidents at Work, Health and SAfety Executive, Workplace Safety

If a new trial scheme is found to be successful, employment tribunals may also hold evening sittings.

Beginning in early November, the Tribunals Service will pilot evening sittings at two tribunals in East London and Cardiff. The pilot will run for six months, and will see cases from around 6pm to 8pm.

The new initiative is being trialled in response to anecdotal feedback given by tribunal users. Many employers and employees have requested the option of attending a tribunal outside normal working hours to make it easier for them to fit proceedings around their other commitments.

The pilot will not include complex cases at this stage. Only cases that require a judge but do not need a panel or a full day’s hearing - wage claim cases, for example - will be scheduled for evening sittings.

Hearing such cases later in the day will mean that more time can be devoted to complex cases in conventional tribunal hours.

In recent years, the number of cases heard by employment tribunals has steadily grown. Much of the rise is due to the tens of thousands of equal pay claims against public sector employers. The pilot may be an attempt to deal with the backlog of cases that has resulted from this.

An additional factor is the current state of the economy, and the increase in unfair dismissal and redundancy-related cases this has caused. Tribunals are finding it difficult to keep up with this rise in cases. While there is currently a drive to recruit new judges, it is thought that this may not be enough to work through the backlog.

Once the pilot scheme is completed, the Tribunals Service will evaluate its success and decide whether or not to roll out evening sittings throughout the country next spring.

Technorati Tags: Employment Tribunals, Evening Sittings, Pilot Scheme

A recently published study claims that job applicants with African or Asian names are being discriminated against by employers.

In the study - which was commissioned by the Department for Work and Pensions - researchers sent thousands of fake CVs to companies across the country.

Three different identities were created for the CVs. All three had similar experience and qualifications, but each was given a name that reflected a different ethnic background - Nazia Mahmood, Mariam Namagembe and Alison Tayler were the names used.

The researchers found that, while the applicant with the British-sounding name had to send out an average of nine CVs before being offered an interview, the other two candidates had to send out 16 before achieving a similar result.

In total, 987 vacancies were applied for between November 2008 and May 2009. A broad range of different job types were included in the study, including accountancy, IT, care work and sales, and the cities involved were Birmingham, Bradford, Bristol, Glasgow, Leeds, London and Manchester.

The report concluded that there could be no other plausible reason for the discrepancy other than discrimination based on race.

Jim Knight, employment minister, commented: “This research clearly shows that some employers are discriminating when it comes to choosing staff. This has no place in a modern society and racial discrimination cannot be allowed to continue.

“We introduced laws to stop discrimination at work and strengthened them in 2000. We also introduced new diversity and equality requirements in DWP contracts with suppliers.

“Employees can use the Race Relations Act to take employers to a tribunal if they are being treated unfairly and they will also get support and advice from the European Human Rights Commission to do so.

“We are determined to stop this scourge on society - the Equality Bill will strengthen our hand and we are already preparing to publish specific plans for dealing with discrimination in the workplace later this year.”

Technorati Tags: CV Study, Department for Work and Pensions, Racial Discrimination

Following a successful challenge by five police authorities, employers conducting Criminal Record Bureau checks on prospective employees will have access to more information about any older convictions they may have.

Formerly, the Information Commissioner and the Information Tribunal had stated that the police should not retain information on spent criminal convictions, as doing so would put them in breach of the Data Protection Act. Due to this new ruling, however, the police will now be able to keep this information for “as long as they feel necessary”.

This means that employers will now be able to access more detailed records when screening job applicants, although the type of information available to them will not change.

A spent conviction will remain a spent conviction, and employers will be made aware of the status of all convictions. Guy Lamb from legal service provider DLA Piper warned that employers should use this new information wisely.

“Just because someone has a conviction is not a good reason for not employing them,” he said, “and that’s amplified if now you can start to get convictions that are considerably older. The same rules apply. Employers must think what relevance is the conviction to the role and how long ago it was.”

Senior associate at law firm Weightmans Kevin McKenna added: “So the theft of a 99p packet of meat in 1984 for a person who was under 18 at the time and was fined £15 (one of the examples in this case) will be regarded as a spent conviction unless you are dealing with one of a number of specified jobs. If an exemption applies, then it is necessary that the information exists in a database to ensure the individual is accurately confirming their past criminal record.”

Technorati Tags: CRB Checks, Data Protection Act, Spent Convictions

The recent Employment Appeal Tribunal (EAT) case of Beijing Ton Ren Tang Ltd v Wang has highlighted the importance of taking all of an individual’s circumstances into account when deciding if they have acted reasonably in attempting to mitigate their loss after being dismissed.

Ms Wang was recruited from her native China to work in a health shop in London in 2001. In January 2008, she was unfairly dismissed from her position by her employer. When determining the amount of compensation Ms Wang was entitled to, the tribunal concluded that she would not have been able to keep her job beyond June 2008 due to the onset of tuberculosis.

Beijing argued that Ms Wang had failed to make any attempt to mitigate her loses and so her compensation should reflect this fact. The tribunal rejected this claim after taking into account Ms Wang’s individual circumstances, which included the facts that:

• She had been shocked by the manner in which she was dismissed. The way in which she had been treated by Beijing was bad enough to merit a 50% uplift in her compensation.
• She had been very isolated in the London Chinese community since she had arrived in the country in 2001.
• She spoke no English, and was unfamiliar with other parts of the country where some of the jobs Beijing claimed she could have taken were located.
• After her unfair dismissal, she was so short of funds that she had to borrow £30 from a company director to buy food - this lack of money in itself would have made it more difficult for her to search for a new job.

Beijing appealed on this point of mitigation and lost.

HHJ Peter Clark confirmed that mitigation is a question of fact, and that the employer must show that the dismissed employee has acted unreasonably in failing to mitigate any losses suffered as a result of their dismissal. In considering such cases, the tribunal must take into account the individual circumstances of the claimant.

The EAT found that Ms Wang had been left in an “unusual and vulnerable position” after her dismissal, and that, although she had done nothing to find new employment for 17 weeks, when all her unique circumstances were taken into account, she had not acted unreasonably.

Technorati Tags: Employment Appeal Tribunal, Loss Mitigation, Unfair Dismissal

Mrs Steele had been employed by Sodexho Defence Services as a manager of a convenience store. When cashing up, the money was counted and bagged up in an office monitored by CCTV. On four dates between April and July, money amounting to over £10,000 had gone missing. On all four occasions, Mrs Steele had been responsible for handling the cash and had signed all the paperwork relating to the process.

An investigation into the missing money was carried out, and it was found that Mrs Steele had turned off the CCTV when bagging up with her colleague Mrs Saunders on a particular instance when money went missing in July. The tape clearly showed Mrs Steele approaching the camera and turning it off.

She admitted that once sealed, the money bags could not be re-opened, and that she should have left the camera on throughout the cashing up process. Sodexho determined that there was no way the money could have been taken after it had been bagged up.

Mrs Steele was subsequently dismissed for theft, although Mrs Saunders had left the company before the commencement of the disciplinary process for an unconnected reason.

Mrs Steele brought a claim for unfair dismissal against her employer. In the original tribunal, she won: Sodexho was criticised for not bringing disciplinary action against Mrs Saunders, despite the fact that she was no longer employed by the company.

The tribunal found that the difference in treatment between Mrs Steele and Mrs Saunders meant that a comprehensive investigation had not been performed. In the eyes of the tribunal, the dismissal was therefore automatically unfair. Sodexho appealed to the Employment Appeal Tribunal (EAT).

The appeal was upheld. The EAT found that the tribunal had substituted its own views for those of the employer rather than confining itself to determining the reasonableness of their conclusions. It also found that there had not been any disparity of treatment as Mrs Saunders had not been employed by the company when the investigation began.

Technorati Tags: Employment Appeal Tribunal, Theft Dismissal, Unfair Dismissal

The Government has released a draft of the Agency Workers Regulations 2010, which are intended to implement the EC Agency Workers Directive in the UK, along with draft consequential amendments to the Conduct of Employment Agencies and Employment Business Regulations 2003, SI 2003/3319.

These draft regulations are included as annexes to a consultation document. The consultation period will end on 11th December 2009.

In a press release issued on October 15th, the department for Business, Innovation and Skills (BIS) stated that the Government is committed to getting this legislation on the Statute Book by the end of this Parliament, and that the law should be in force in the UK by October 2011.

Once the regulations are enacted, they will ensure that agency workers are treated the same as contracted workers after 12 weeks in a specific role. This equality extends to all basic working and employment conditions, including holidays and pay.

Also, from their first day of their employment with a new company, agency workers will be entitled to:

• Be notified about any vacancies that arise within the company they are working for, to give them an opportunity to secure a permanent position.
• Equality of access to any on-site facilities, such as childcare or transport services.
• New mothers and women who are pregnant will have additional rights, including the right to reasonable time off for ante-natal appointments and to request adjustment to working hours and conditions.

To help enforce the new regulations, employment tribunals will have jurisdiction to hear cases from agency workers who feel that their rights have been breached or that they have suffered a detriment for trying to assert their rights. In cases where agency workers have suffered a detriment, tribunals will have the power to award compensation for injury to feelings.

Technorati Tags: Agency Worker's Directive, Draft Regulations, New Legislation

EEF, the manufacturer’s organisation, has called for the introduction of a formula to determine future increases to the National Minimum Wage (NMW), to give employers “some form of certainty about its potential impact”.

It is not the first time the EEF has called for such a formula. In previous years they have made the same request, saying that any formula that is eventually introduced should be fixed and “based on movements in basic pay across the economy”.

David Yeandle, the head of employment policy at EEF, explained: “In these difficult times, it is even more important for manufacturers to have greater certainty about future increases in the national minimum wage and the potential direct and indirect impact on their business.

“Increases in line with basic rates of pay across the economy will help to achieve this objective and ensure that future increases in the national minimum wage reflect the economic circumstances of the time.”

At the start of this month, the NMW was raised from £5.73 to £5.80 per hour, an increase of 1.2 per cent. This was the lowest raise since the NMW was introduced over a decade ago in April 1999. To put this in perspective, the annual NMW increases enacted between 2000 and 2008 ranged between 2.4% and 10.8%.

However, although the increase is low compared with past rises, the 1.2% boost is actually above the whole economy headline pay award as determined by pay specialists IRS.

With the Low Pay Commission set to publish its recommendations on the 2010/2011 NMW increase early in the new year, affected parties will await next year’s increase with a high degree of interest.

Technorati Tags: EEF, National Minimum Wage, Wage Formula