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May 31, 2018

U.K. Employment Law Update: Disability Discrimination, ‘Bumping' in a Redundancy Situation and Service Provisions Changes Under TUPE

In United First Partners Research v Nicolas Carreras [2018] EWCA Civ 323 the Court of Appeal considered whether an expectation (rather than a requirement) could amount to a provision, criterion or practice (PCP) under U.K. disability discrimination law.

Mr Carreras was employed as an analyst by a brokerage firm. He initially worked 12 to 14 hour days, but following an accident he worked reduced hours for a six-month period. Thereafter, he was asked to work late into the evenings and an expectation arose that he would continue to do so. However, he later formally objected to working late and, following a heated exchange with one of the firm’s owners, he resigned.

Mr Carreras claimed that his condition was a disability and brought a disability discrimination claim, arguing that the expectation for him to work late was a PCP which placed him at a substantial disadvantage compared with non-disabled employees. This had triggered a duty on his employer to make reasonable adjustments which Mr Carreras contended it had failed to comply with.

While the Employment Tribunal accepted that Mr Carreras was disabled, it found that his employer had not failed to make reasonable adjustments as the expectation to work late was not PCP because Mr Carreras had not been forced into working late. This approach was rejected by the Court of Appeal which found that the Employment Tribunal had taken too narrow an approach to the issue. It was enough that it had been made clear by a pattern of events that there was an expectation and assumption that Mr Carreras would work late, which created a pressure for him to do so.

Employers should beware of creating workplace practices which make employees feel pressured into working in a particular way.

Redundancy Consultation: Is It Necessary to Consider ‘Bumping’?

In Mirab v Mentor Graphics (UK) Ltd UKEAT/0172/17/DA, the Employment Appeal Tribunal (EAT) considered the extent to which employers must consider ‘bumping’ during the redundancy consultation process.

Bumping is where an employee whose role is redundant is moved into another role and the employee in that other role is dismissed instead. Dr Mirab was employed as a Sales Director, responsible for a team of six account managers. Following a restructure of the business, it was decided that his role was redundant. A consultation process was carried out, which included considering alternatives to redundancy. However, consideration was not given to bumping one of the (more junior) account managers and Dr Mirab did not raise that possibility. He was dismissed and brought an unfair dismissal claim.

The EAT found that the Employment Tribunal had made an error in law in stating that bumping only needed to be considered if the employee had raised it. It held there is no general rule that employers must always consider bumping for a dismissal for redundancy to be fair, but that there is also no rule that they need not consider it unless the employee raises it themselves. The relevant question is whether, in the circumstances, the employer acted within the range of reasonable responses in failing to consider it.

In light of this decision, employers would be well advised to consider bumping as part of their redundancy consultation procedure, even if they ultimately decide that it would not be appropriate. It is also important to keep records to demonstrate that the issue was considered if ever challenged on it.

TUPE: Service Provision Change & Fragmented Services

In London Care Ltd v Henry and others UKEAT/0219/17, the Employment Appeal Tribunal (EAT) considered whether there had been a service provision change (SPC) under TUPE where services had been fragmented following a transfer.

Under TUPE, there will be an SPC if, immediately before the relevant transfer, there is an organised grouping of employees which has as its principal purpose the carrying out of certain activities on behalf of a client and where these activities remain fundamentally the same following the transfer.

The claimants were carers employed by Sevacare Ltd, which had a contract with the London Borough of Haringey to provide carer services to some of its residents. In 2016 Sevacare terminated its contract with Haringey and the carer services were transferred to four main providers. In some cases, a carer’s work was split across more than one provider. The first issue to be considered was whether the transfer of the services amounted to an SPC under TUPE.

The EAT held that when assessing whether there had been an SPC, the issue of fragmentation should be considered at an early stage, namely at the same time as the question of whether the activities were fundamentally the same post transfer. The Employment Tribunal at first instance had considered the issue too late in its analysis and so the case was remitted back to it for further consideration.

In assessing whether there has been an SPC employers should clearly determine the scope of any pre-transfer activities and consider how fragmentation might affect those activities following the transfer. They should also ensure that appropriate warranty and indemnity cover is included in the relevant contracts.

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