REDUNDANCY TUPE UPDATE Stuart Brittenden Old Square Chambers

REDUNDANCY & TUPE UPDATE Stuart Brittenden Old Square Chambers 20/02/2021 1

Collective Redundancies (1) Taylor; (2) Unite v Birmingham City Council [2017] EWHC 2576 Reorganisation of waste collection services S. 188 notice issued - proposed deletion of 109 Grade 3 Lead Hand roles High profile strike action ACAS mtg 15 Aug 2017 – joint press release "Birmingham City Council cabinet members have agreed in principle that the grade 3 posts will be maintained. Consequently there are no redundancy steps in place". • Cabinet ratification by email • Council renege / notices of redundancy issued • Fraser J grants interim injunction • • 20/02/2021 2

Vining & Ors v LB Wandsworth [2017] IRLR 1140 CA Redundancy of LA parks police officers S. 200 ERA 1996 UD exclusion for employees in “police service” S. 280 TULR(C)A 92 exclusion from collective redundancy rights Officers appeal vs EAT ruling preventing UD claims UNISON appeal vs EAT ruling preventing protective award claim under s. 189 CA decide could not rely upon art 8, 14 ECHR to challenge fairness of dismissal • BUT s. 3 HRA 1998 used to disapply s. 280 • • • 20/02/2021 3

Vining cont… • “… the starting point is that since the decision of the ECt. HR in Demir it has been established that 'the right to bargain collectively with the employer has, in principle, become one of the essential elements' of the rights afforded by Article 11, and that those rights are enjoyed by employees of public authorities as well as by employees in the private sector…” [para 61] • “… In our view a right of the kind conferred by ss. 188– 192 of the 1992 Act – that is, (in the case of the union) to be consulted, and (in the case of the employees) to be consulted for – falls squarely within the 'essential elements' protected by Article 11… the consultation rights afforded to a recognised trade union by sections 188– 192 …” • Gov’t under a positive obligation to secure the “effective enjoyment of those rights” [para 64] 20/02/2021 4

(1) Individual rights: redundancy & mobility clauses Kellogg Brown and Root (UK) Ltd v Fitton EAT • Site closure • Redundancy situation per s. 139 ERA 96 • Dismissals for serious misconduct • Application of Home Office v Evans [2008] ICR 302 CA • ? contracting out of ERA – scope for challenge? 20/02/2021 5

(2) Individual rights: Suitable alternative employment s. 141 ERA 1996 Dunne v Colin and Avril Ltd EAT • Bookkeeper 24 hr p/w • Refused 16 hrs bookkeeping plus 8 hrs warehouse work • EAT re-state correct 2 stage test • (1) Is alternative role objectively suitable? • (2) Are EE’s subjective reasons for rejecting unreasonable? • EE can rely upon factors not communicated at time 20/02/2021 6

TRANSFER OF UNDERTAKINGS (TUPE) Reg 3(3) “organised grouping” & “principal purpose” • ? Application to the care sector • Tees Esk & Wear Valleys NHS FT v Harland [2017] IRLR 486 • London Care Ltd; Carewatch Care Services v Henry & Ors; Sevacare & Ors UKEAT – hearing early 2018 20/02/2021 7

Reg 3(2 A) activities “fundamentally the same” Salvation Army Trustee Co v Bahl [2017] IRLR 410 EAT • Accommodation support services for homeless • “activities must be defined in a commonsense and pragmatic way … they should not be defined at such a level of generality that they do not really describe the specific activities at all. Thus it would be wrong to characterise a fully catered canteen as merely the provision of food to staff … On the other hand, the definition should be holistic, having regard to the evidence in the round, avoiding too narrow a focus in deciding what the activities were. . . A pedantic and excessively detailed definition of “activities” would risk defeating the purpose of the SPC provisions. ” [para 22] > Judicial call for ET reform? see obiter remarks [para 27] 20/02/2021 8

(1) What liability transfers under reg 4(2)? • ARD makes provision for joint & several liability • TUPE only makes limited provision eg failures to inform/consult • Reg 4(2)(a) provides: ‘… all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee • Reg 4(6) - express exclusion on transfer of certain criminal liabilities 20/02/2021 9

(2) Reg 4(2) personal Injury Baker v British Gas Services (Commercial) Ltd [2017] EWHC 2302 • Electrician suffers injury post-transfer • Breach of duty occurred pre-transfer • No cause of action crystallised as at date of transfer • BUT liability transferred: … The Regulations are not designed to protect the transferee from unknown liabilities. On the contrary, the situation where a breach of the employer's duty occurs before the transfer but injury occurs after falls squarely within the Regulations. . . [para 66] 20/02/2021 10

(3) Liability to third parties? Doane v Wimbledon Football Club (unrep, Sheffield County Court, 2. 12. 07) • Sheffield Utd player injured by Wimbledon player in an allegedly negligent tackle • Subsequent TUPE transfer from Wimbledon to MK Dons • Transferee inherited liability to 3 rd party victim WFS v Sohail & Ors UKEAT – hearing in 2018 • ET decides reg 4(2) only transfers liability owed to transferring employees (not to 3 rd parties) • EAT to consider scope of reg 4(2) > Implications? 20/02/2021 11

Thank you Contact London 10 - 11 Bedford Row London WC 1 R 4 BU DX 1046 London / Chancery Lane T 020 7269 0300 Bristol 3 Orchard Court, St Augustines Yard Bristol BS 1 5 DP DX 78229 Bristol 1 T 0117 930 5100 E clerks@oldsquare. co. uk W oldsquare. co. uk @Old. Sq. Chambers 20/02/2021 12