Choice of companion at disciplinary hearings

Employees have the right to be accompanied by a trade union representative or colleague at disciplinary hearings. There is no statutory right for employees to be accompanied at investigatory meetings.

In Stevens v University of Birmingham, the High Court considered whether an employer’s refusal to allow an employee to be accompanied by a representative of a medical defence organisation at an investigatory meeting was a breach of the employee’s contract.

Professor Stevens worked as a clinical academic for Birmingham University. His responsibilities included overseeing the conduct of clinical trials. He was accused of misconduct in relation to the conduct of the trials and was invited to an investigatory meeting.

The university’s disciplinary procedure stated that employees had the right to be accompanied by a colleague or trade union representative at investigatory meetings. However, Professor Stevens wished to be accompanied by Dr Palmer, a representative of the Medical Protection Society (MPS), who was familiar with clinical trials. When the university refused to allow this, Professor Stevens sought a declaration that he was permitted to be accompanied by Dr Palmer.

The High Court took the view that as the investigation was at a critical stage and the seriousness of the allegations could result in disciplinary action which could end Professor Stevens’s career, it was important for him to have as much assistance as possible. As the investigating officer has been granted the support of a technical adviser, it was appropriate for Professor Stevens to have meaningful assistance from a companion who had sufficient knowledge of clinical trials. As there was no good reason why the investigating officer could not exercise his discretion to allow Professor Stevens to be accompanied by Dr Palmer, his refusal to allow this was a breach of the implied contractual term of trust and confidence.

This means that in certain circumstances, employees should be allowed to be accompanied at investigatory meetings (and disciplinary hearings) by companions who are not trade union representatives or colleagues. Employers should carefully consider agreeing to any request to be accompanied by a companion who is not a trade union representative or colleague if the allegations against the employee are particularly serious, or if the issues are complex and the employee wishes to be accompanied by someone who has relevant expertise.

Employee on long-term sick leave was not assigned to the business for the purposes of TUPE

In BT Managed Services Ltd v Edwards, the Employment Appeal Tribunal considered whether an employee who was on long-term sick leave was assigned to the team in which he had previously worked, when his team transferred to another employer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
Mr Edwards was employed by BT Managed Services Ltd as a Field Operations Engineer. He was part of a team which provided mobile phone network maintenance under a contract (the Contract). Mr Edwards had been off sick for five years and was unable to work. He had been accepted onto BT’s permanent health insurance scheme and once those benefits were exhausted, he remained on BT’s books so it could continue to make discretionary payments to him.

In 2013 the Contract was transferred to Ericsson Ltd. The employment of the employees who were assigned to the Contract transferred to Ericsson under the “service provision change” provisions in TUPE. However, Ericsson claimed that Mr Edwards’s employment had not transferred, as he had not been assigned to the team of employees who were working on the Contract at the time of the transfer.

The EAT agreed. In order to be assigned to an organised grouping of employees at the time of the transfer, an absent employee “will generally require some level of participation, or, in the case of temporary absence, an expectation of future participation in carrying out the relevant activities on behalf of the client”. Simply being on the employer’s books was not, in itself, enough.

When considering which employees are assigned to an organised grouping of employees for the purposes of TUPE, consideration should be given to the position of any employees who are on long-term sick leave. If they are only on the books for administrative reasons and there is no prospect of them returning to work, their employment may not transfer under TUPE.

Government announces measures to improve national minimum wage compliance

On 1 September 2015, the Department for Business, Innovation & Skills announced a package of measures which are intended to improve compliance with the national minimum wage (NMW) and the new national living wage (NLW), which comes into force in April 2016.

The measures include:

  • Increasing the penalty for non-payment of the NMW/NLW from 100% of arrears to 200% of arrears, (although the penalty will be halved if payment is made within 14 days). The maximum penalty per employee will remain unchanged at £20,000;
  • Increasing the budget for enforcement of the NMW/NLW;
  • Establishing a new team of HMRC compliance officers dedicated to pursuing serious cases of non-payment of the NMW/NLW, which will have the power to use all available sanctions including penalties, prosecutions and the naming and shaming of employers;
  • Introducing a new penalty of disqualification from being a company director for up to 15 years for non-payment of the NMW; and
  • Creating a new position of Director of Labour Market Enforcement and Exploitation, which will oversee NMW/NLW enforcement.

Business Secretary Sajid Javid commented, “There is no excuse for employers flouting minimum wage rules and these announcements will ensure that those who do try and cheat staff out of pay will feel the full force of the law.”

Employment Law Update September 2015