Managing employees/workers
In Institution of Professional Civil Servants and others v Secretary of State for Defence the High Court rejects a complaint by various trade unions that the Secretary of State had not Informed and consulted them about a proposed transfer of two dockyards to commercial management, as required by s.1 of the Dockyard Services Act 1986.
In Spijkers v Gebroeders Benedik Abbatoir CV 24/85 [1986] ECR 1119 ECJ, the European Court of Justice ruled that Article 1(1) of the Acquired Rights Directive must be interpreted to the effect that the expression 'transfer of an undertaking, business or part of a business to another employer' envisages the case in which the business in question retains its identity.
In Delabole Slate Ltd v Berriman the Court of Appeal upholds the EAT's decision that a dismissal which occurs as a consequence of a change in terms of employment following the transfer of an undertaking is not a dismissal for "an economic, technical or organisational reason entailing changes in the workforce", and so is automatically unfair under reg.8(1) of the Transfer of Undertakings (Protection of Employment) Regulations 1981.
In assessing the reasonableness of the amount of paid time off for trade union duties under s.27(2) of the EP(C)A, the terms of a collectively agreed time off scheme ought to be taken into account, suggests the EAT in Ashley v Ministry of Defence.
An Industrial Tribunal's decision as to whether a contract is a contract of employment can only be overturned on appeal if the Tribunal misdirected itself in law or reached a perverse decision on the facts, the majority of the Court of Appeal concludes in the widely publicised case of O'Kelly and others v Trusthouse Forte Plc.
Where a contract of employment does not specify a limit to the duration of sick pay, it does not continue indefinitely but only for a reasonable period, holds the EAT, in Howman & Son v Blyth. However in deciding what is a reasonable period, Tribunals should consider the limit specified in a national agreement in the relevant industry.
One of the grounds on which an interval between two contracts of employment does not break continuity is that the employee is absent from work due to a temporary cessation of work. In a decision that will benefit many teachers and temporary workers, the House of Lords holds in Ford v Warwickshire County Council that it is not relevant that the interval was anticipated and lies between two fixed term contracts. The test in all cases is whether the gap is short In relation to the duration of the two contracts.
In Ross v Delrosa Caterers Ltd [1981] ICR 393 EAT, the Employment Appeal Tribunal held that, although continuity of employment is broken where a redundancy payment has been paid to an employee and the contract of employment is renewed or the employee re-engaged under a new contract, this is the case only if the redundancy payment is a statutory redundancy payment.
In Rowan v Machinery Installations (South Wales) Ltd [1981] IRLR 122 EAT, the EAT held that the Industrial Tribunal had erred in finding that the appellant's period of continuous employment had been broken when his contract of employment had been terminated by the respondents and he was paid an amount calculated in accordance with the statutory redundancy payment provisions, in circumstances in which there was no liability on the respondents to make a redundancy payment.
In Savage v J Sainsbury Ltd [1980] IRLR 109 CA, the Court of Appeal held that where a disciplinary procedure provides a right of appeal against dismissal and treats the employee as suspended without pay until the appeal is heard, the effective date of termination if the appeal is rejected is when the dismissal initially took effect and not when the appeal was rejected.
HR and legal information and guidance relating to managing employees/workers.