Employment Law Monthly Update – October

Oct 2, 2018

We are pleased to provide you with the Herrington Carmichael LLP employment law update for October 2018.

This is a key note summary of some of the main developments in employment law in the last month.

1.Parental Bereavement (Leave and Pay) Act 2018
The Parental Bereavement (Leave and Pay) Act 2018 has now received royal assent. It is expected that this will be enacted by 2020. The Act permits employees two weeks leave in the event of the death of a child (under the age of 18). The Act also entitles employees to be paid for this leave. However, the rate of this pay will be determined in regulations which have yet to be published. It is likely that this will be at the statutory levels in the same way as paternity leave. However, we wait to see.

2. Ambiguous resignations
In the recent case of East Kent Hospitals University NHS Foundation Trust v Levy, an employee had been conditionally offered a new role in another department.  Accordingly, she gave notice to her current department that she would be leaving. Her manager accepted her “resignation”, but did not then deal with any of the usual termination arrangements, such as outstanding annual leave or any of their internal procedures. The conditional offer to move to another department was then withdrawn and the employee attempted to retract her notice to remain in her original department. Her manager did not accept her retraction and subsequently dealt with all of the usual termination issues.

The Employment Appeal Tribunal (“EAT”) held that an employee’s “notice” was not unambiguous enough to amount to a resignation.  Therefore, the employee was dismissed when her manager failed to accept the retraction of her “notice”.  The EAT held that the employee’s notice had been an intention to transfer department, not to terminate her employment.

While there is no duty for employers to ensure that an employee’s notice is unambiguous, it should be borne in mind that these things can be judged objectively. It is therefore important to ensure that notice is dealt with in a clear and unambiguous manner by employers to avoid any confusion.

3.Removal of outdated contractual terms not void by reason of a TUPE transfer
In the recent EAT case of Tabberer v Mears Ltd, a group of electricians were transferred from Bristol City Council to Mears.  Following the transfer, Mears served the Claimants notice to remove a clause from their contract which entitled them to payment of a travel time allowance. The allowance dated back to 1958. The Claimants claimed that the amendment was void as the reason for it was the transfer.

The EAT held that the reason for the amendment was not the transfer, but was in fact due to the clause being outdated and was therefore not void.

The EAT did not apply a “but for” test in deciding this matter, but instead looked at the reason Mears removed the allowance. This is a good example of circumstances in which an employer can change employment terms, following a transfer.

4.Transferees in TUPE transfers can now be liable for all minimum wage liabilities
Where there is a TUPE transfer, the previous position in relation to national minimum wage or living wage was that the transferor would be charged penalties by HMRC for a failure to pay the national minimum / living wage.  However, the HMRC has recently published an update confirming that, where TUPE applies, all liabilities, including penalties are applied to the transferee.  As a result, it is essential that when a transfer is taking place, this matter is dealt with correctly. Where there is a commercial transaction, appropriate warranties and indemnities will be required.  Alternatively or in addition, the employee liability information received will have to be appropriate checked to ensure that the employees are receiving more than the appropriate level of wages.

For further information or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com.