Important changes to UK employment law
Employment lawyer Ilana Swimer recaps on some of the recent issues she has come across.
Ilana graduated from Cambridge University in 1997 and trained and qualified at Herbert Smith, where she spent over 10 years in the employment law department. Ilana advises across a range of employment law matters, both contentious (claims in the Employment Tribunal and High Court) and non contentious (redundancies, disciplinaries, TUPE transfers, discrimination).
TUPE and relocation on service provision change
Timing – widespread practice is to consult with the affected employees prior to the transfer date, and run collective and individual consultations related to the redundancies at the same time as the TUPE information and consultation process. This does however run the risk of a claim of a failure to complywith consultation obligations as technically, the new provider can only consult when it becomes the employer, which only takes place after the transfer of services.
The good news is that the government has recognised these difficulties and is proposing to amend TUPE 2006 to make it clear that the new service provider can consult with the redundant employees prior to the transfer and that such redundancies will not amount to an automatic unfair dismissal. These, and some of the others changes to TUPE 2006, should take effect from October 2013.
Termination for some other substantial reason
A key strategic client tells you that they want one of your employees off their project team due to their performance or they will send their work elsewhere. What can you do? Faced with this problem, my client had no vacancies on any other accounts, so wanted to terminate that employee’s employment. I advised them to rely on some other substantial reason to do so.
It was not a performance-related dismissal as they would have placed the individual on another account had there been a vacancy and they did not want to follow a performance management process. Equally, it was not a redundancy, as had the employee been performing, there was a role for her.
I advised the client to follow their disciplinary procedure due to the fact that the termination of employment arose out of issues relating to the employee’s performance, even though performance was not the principal reason for the termination.
Employee unable to perform role due to severe dyslexia
To avoid a disability discrimination claim, before terminating the employment of any employee with severe dyslexia, ensure that you have taken independent medical advice, put in place any reasonable adjustments and assessed their effectiveness over a sufficient period of time, as well as going through a performance management process. It will also be vital to consider any other suitable roles and/or changing that employee’s role as appropriate. Finally, always strive to keep dialogue with the employee open and positive.