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Winter 2016Your quarterly bulletin on legal news and views from Cox Cooper Solicitors

Cox Cooper LtdSolicitors

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awUPDATE The apprenticeship levy on

employers, first announced bythe Chancellor of the

Exchequer in the July 2015 Budget, is being introduced in April 2017 with the aim of enabling the Government toincrease its spending on post-16apprenticeships in England toachieve its target of three million apprenticeships by 2020. A consultation exercise followedthe announcement and theGovernment's response has nowbeen published.

How Will the Levy Operate?The levy will apply to employersacross all sectors. It will be set at arate of 0.5 per cent of an employer's wage bill, excludingother payments such as benefits inkind, and will be collected via thePAYE system. Employers will receivean annual allowance of £15,000to be offset against the levy payment. The effect of thisallowance is that the levy will onlybe payable by employers withwage bills in excess of £3,000,000(estimated as fewer than two per

cent of employers). Those with a lower wage bill will not pay anything.

The levy will be paid into a centralfund, which all employers will beable to access to gain support forapprenticeships via the DigitalApprenticeship Service. Employerswho have contributed to the fundwill have two years in which to usetheir funding. Any unspent moneywill be made available to otheremployers. Employers who pay thelevy will also be able to accessfunding support above the level oftheir contribution by way ofGovernment top-ups to their digitalaccounts.

In order to minimise the burden ofimplementing these changes, HMRevenue and Customs are to workclosely with employers andproviders of payroll services, andthe Government intends to provideclear guidance for employers onhow the system will work in relationto different types of workers. Inaddition, a new independent,employer-led body, the Institutionfor Apprenticeships, will be established to regulate the qualityof apprenticeships within the context of achieving three millionstarts by 2020.

Although the apprenticeship levy will apply to employers across the UK, as skills training is adevolved policy area in NorthernIreland, Scotland and Wales, onlyemployers in England will receivefunds in their digital account tospend on apprenticeship trainingin England. Further work is neededso that arrangements can be putin place ahead of the levy’s implementation to ensure the system works for employers acrossthe UK.

The Advisory, Conciliation and Arbitration Service(Acas) has updated its guidance on peripateticworkers.

The section on working time has been amended totake into account the recent decision of the Court of Justice of the European Union in Federacion deServicios Privados del Sindicato ComisionesObreras v Tyco Integrated Security SL andAnother that time spent travelling to and from a customer's premises at the beginning and end of theday by a worker who is not assigned to a fixed placeof work constitutes working time as defined by the EUWorking Time Directive (which is implemented into UK law by the Working Time Regulations 1998).

The section gives further examples of when a worker isor is not considered to be at their employer's disposal.

In addition, the guidance stresses that a health andsafety risk assessment should be undertaken for peripatetic workers, taking into account the fact thatthey will be working away from the normal work base,or will have no base, and also the type of work thatwill be carried out.

The guidance also contains information on employment status and the National Minimum Wage.

The revised guidance can be found on the Acaswebsite www.acas.org.uk.

The Apprenticeship Levy

Acas Guidance on Peripatetic Workers

When a bank employee was dismissed for gross misconduct as a result of his behaviour at an officefunction, the Employment Tribunal (ET) found that

his dismissal was unfair because of the inconsistency of histreatment when compared with that of a colleague who was given a final written warning for his part in the incident.The ET's approach was criticised by the Employment AppealTribunal (EAT), however, which overturned the decision onappeal (MBNA Limited v Jones).

Mr Jones was employed by MBNA Limited as a collectionsofficer at its offices in Chester. In November 2013, the bank held an event at Chester Racecourse to celebrate its20th anniversary. Staff were told that it was a work event, so normal standards of conduct would apply and any misconduct would be dealt with under the bank's disciplinaryprocedures.

The event began at 7:00pm. Mr Jones and a colleague, Mr Battersby, started drinking before it commenced and continued during the evening. There had been an incidentinvolving the two men earlier in the day, which other members of staff regarded as no more than 'fun/banter'.Later on, things turned nasty when Mr Battersby kneed Mr Jones in the leg when he saw that he had his armsaround Mr Battersby's sister. Mr Jones punched Mr Battersby in the face. After the celebration, Mr Jones went with someother colleagues to a club. Mr Battersby waited outside andsent Mr Jones seven texts, threatening to ‘rip his head off’.There was no more trouble between them, however. Mr Battersby did not act on his threats, which were notreceived by Mr Jones until the following day.

MBNA held a disciplinary investigation. The manager conducting the procedure was unconvinced by Mr Jones'sclaim that he had acted in self defence after substantiveprovocation, and the decision was taken to dismiss him forgross misconduct on the basis that his behaviour had thepotential to seriously impact on the reputation of the bank.Mr Jones appealed, but the bank's decision was upheld.Whilst it acknowledged that there had been some provocation, this was not considered sufficient to justify his actions.

In the meantime, Mr Battersby had been given a final writtenwarning. While his texts were found to be 'of an extremely violent nature' and were 'wholly inappropriate', they were sentafter the event itself, following provocation, and MBNA didnot believe he intended to follow through on his threats.

The ET upheld Mr Jones's claim of unfair dismissal on thebasis that the punch had been an overreaction to provocation from Mr Battersby and that there was an unfairdisparity between MBNA's treatment of the two men. Hadthey both lost their jobs for what were 'proven acts of grossmisconduct', their dismissals would have been fair.

In upholding MBNA's challenge to that ruling, the EAT foundthat dismissal was a reasonable response to Mr Jones'sbehaviour, which is the central question when applying thetest set out in Section 98(4) of the Employment Rights Act1996. Whether or not the employer was unduly lenient toanother employee was 'neither here nor there'.

Furthermore, the ET had failed to apply the guidance on disparity of treatment laid down in Hadjioannou v CoralCasinos Limited. The circumstances of Mr Jones and Mr Battersby were not sufficiently similar to render an argument on disparity of treatment appropriate. A distinctioncould properly be drawn between a deliberate punch in theface during a work event and threats issued afterwards thatwere not, in fact, carried out.

In the light of the ET's finding as regards the seriousness of Mr Jones's conduct, the EAT was in a position to substitute aruling that the dismissal was fair in the circumstances.

Contact us for advice on any disciplinary matter.

Unfair Dismissal – The Correct Legal Test

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Employment Law UPDATE

The Department for Business, Innovation and Skills has issued guidance explainingwhat zero hours contracts are and how they should be used. This provides information on:

n how they affect employment rights;n appropriate use;n inappropriate use;n alternatives;n best practice; andn exclusivity clauses.

The guidance can be found at http://bit.ly/1jDxq5o.

Government Issues Guidance on Zero Hours Contracts

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Employment Law UPDATE

It is incumbent on an Employment Tribunal (ET) to give adequate reasons for any decision it reaches, setting out,broadly speaking, its findings of fact, the questions of law

and the resolution of disputes before it. The reasons shoulddemonstrate to the parties involved that the ET has givenacceptable answers to the right questions.

A black computer software consultant and business dataanalyst, who was dismissed by a high street bank when hewas less than three months into his contract, has won a freshchance to prove that he was a victim of race discrimination(Kibirango v Barclays Bank plc and Another).

Charles Kibirango had joined Barclays Bank in Coventry in late 2012 to assist with the management of informationabout complaints of alleged mis-selling of payment protection insurance. After 11 weeks, his employment was summarily terminated by his line manager after the production of a report missed its deadline and relationsbetween the two men had become strained.

Mr Kibirango brought a claim for race discrimination andharassment.

The bank insisted that his dismissal had nothing to do with hisrace and was due to his poor performance. The ET rejectedhis claim on the basis that it preferred the evidence of hisline manager as to the events in question and the motivesfor his dismissal.

In allowing Mr Kibirango's appeal, however, the EmploymentAppeal Tribunal found that the ET's reasons were insufficient toenable him to understand why he had lost his claim. It wasnot enough for the ET simply to state that it preferred one witness's evidence over another's without also stating why thatwas the case.

In those circumstances, it was impossible to be satisfied thatthe case had been tried fairly and the matter was sent backto a fresh ET for rehearing.

For advice on any dismissal or discrimination issue, contact us.

Bank Worker's Hopes Boosted in Race Discrimination Case

Every employer should know that the greatest care iscalled for when employees go on long-term sick leave,suffering from stress. In one case which illustrates the

point, a school which dismissed a senior teacher on medicalgrounds after she was assaulted by a pupil found itself facingclaims of unfair dismissal and disability discrimination (BoltonSt Catherine's Academy v O'Brien).

Ms O'Brien was a long-serving teacher at Bolton St Catherine'sAcademy, having commenced employment with the schoolin 2000, prior to its achieving academy status. She was awell-regarded member of staff with a clean disciplinaryrecord and no history of unacceptable sickness absence.

In March 2011, she had suffered physical injuries and acutestress as a result of the assault. She had returned to work for a short period, but suffered a relapse after seeing the pupilagain. A further attempt to get back to the classroom alsofailed and, by that time, her condition amounted to a disability within the meaning of the Equality Act 2010.

She had been on sick leave for 12 months when the schoolactivated its sickness management policy and convened ameeting before a panel of governors. Although Ms O'Brienwas undergoing therapy, there was no firm medical evidence as to when, if ever, she would be fit to return towork and she was ultimately dismissed on grounds of medical incapacity.

In upholding Ms O'Brien's unfair dismissal and disability discrimination claims, the Employment Tribunal (ET) found that the school had failed to show that her dismissal was a proportionate means of saving costs and fostering the efficient running of the school. There was no evidence before

the governors that her absence was having an adverseimpact on the school's business. A less discriminatoryresponse would have been to wait a little longer to see if she recovered.

In upholding the school's challenge to that decision, however, the Employment Appeal Tribunal noted that it wasobvious that the long-term absence of a senior teacher wasbound to have an adverse impact on the school, includingthe additional expense of arranging cover for her duties.

The ET had failed to grapple with the issue of how long theschool could be expected to wait for Ms O'Brien's recoveryand, in finding that her dismissal lay outside the reasonablerange of responses available to her employer in the circumstances, had substituted its own views for those of the employer.

The case was sent back to a freshly constituted ET for rehearing.

Stress and Long-Term Sick Leave

Reg. office: Cambrai Court, 1235 Stratford Road, Hall Green, Birmingham B28 9AA

Telephone: 0121 777 0015 Fax: 0121 325 5400 E Mail: law@coxcooper.co.uk Website: www.coxcooper.co.uk

Directors: David Cooper Andrew Cox Business and Employment Law Specialists

Authorised and Regulated by the Solicitors Regulation Authority.Company number 06213810. Registered in England & Wales.

The information contained in this newsletter is intended for general guidance only. It provides useful information in a concise form and is not a substitute for obtaining legal advice. If you would like advice specific to your circumstances, please contact us.

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Cox Cooper LtdSolicitors

Employment Law UPDATE

In Inex Home Improvements Limited v Hodgkins andOthers, the Employment Appeal Tribunal (EAT) had to consider whether or not a group of construction workers

whose principal purpose was to carry out the 'relevant activities' must actually be engaged in the activity immediately before a service provision change to be considered an 'organised grouping of employees' for thepurposes of the Transfer of Undertakings (Protection ofEmployment) Regulations 2006 (TUPE).

The workers were employed by Inex Home ImprovementsLimited to service a single contract for various building worksthat had been subcontracted to Inex by Thomas Vale. Thelatter released the work in tranches. After one tranche of workhad been completed during November and December2012, no further work was anticipated until January 2013.

Inex and Thomas Vale then had a disagreement, whichresulted in the next tranche of work being issued to a different company, Localrun. The work was substantially thesame as that carried out by the construction workersemployed by Inex. An issue therefore arose as to whetherthey continued to be employed by Inex or whether theiremployment had transferred to Localrun by operation ofTUPE.

In ruling on that crucial preliminary issue, the EmploymentTribunal (ET) decided that the transfer of the contract didamount to a service provision change. However, the workerswere not an 'organised grouping', within the meaning of TUPE,in that they were not actually working at the time of the

change. Due to their temporary lay-off, the activity in whichthey had been together engaged had ceased. In those circumstances, their employment with Inex had continued.

In overturning that decision, however, the EAT noted thatthere was nothing in TUPE to suggest that, in the case of aservice provision change, a temporary cessation of activitiesimmediately prior to the relevant transfer precluded the continued existence of an organised grouping of employees.In this case, the workers had been specifically told that theirlay-off was temporary. Such a temporary absence from, orcessation of, work did not in itself deprive them of their statusas an organised grouping and the matter was returned tothe same ET for reconsideration in the light of the EAT's ruling.

Contact us for advice on any employment law matter.

TUPE – Laid-Off Workers Can Still Be an 'Organised Grouping'