There has been considerable press coverage of the European Court of Justice’s decision in the first week of October that the Safe Harbour Framework which many businesses used to transfer employees’ personal data from the UK to the United States, does not comply with data protection legislation. The European Court held that there was not a sufficient level of protection for personal data to be transferred outside of the European Union. Whilst this case was fact specific in relation to the transfer of information to the United States, the principle will be the same in relation to the transfer of information to other countries outside of the EU. In all cases it would be prudent to review the level of protection for any personal data that is to be transferred to any country outside of the EU.
It may surprise you, as it surprised me, that the view of the Employment Appeal Tribunal in the case of EAD Solicitors LLP v. Abrams was that a limited company which itself was a member of a limited liability partnership, could bring a claim alleging that it had been the victim of direct discrimination based on the age of its principal shareholder and director. The Court held that such an arrangement bore similarities to that of an individual who used a personal service company to provide services and that therefore if the company had been the subject of less favourable treatment based on discriminatory behaviour it could sustain a claim. Whether this was in the minds of Parliament when the various branches of discrimination legislation were passed is a matter of some debate. This decision could lead to a series of future claims being brought by companies, charities and other legal entities alleging discriminatory behaviour against them. Whether this case is appealed further we wait to see.
There have recently been two further cases relating to service provision changes under TUPE and they concern circumstances where the employees were absent on long term sick leave and those who were absent as a result of a temporary lay-off. A service provision change is where a company has outsourced certain activities to a contractor and then reassigned those activities to a subsequent contractor or brings the activities in house. In order for employees of the first contractor to be entitled to be transferred to the new contractor there must have been an organised group of employees whose principal purpose was carrying out the activities of the first contractor in relation to its contract to supply the service to the original company. Often there is a dispute as to which employees were assigned to a particular group of employees servicing the company. The cases are highly fact specific and there are no clear rules which assist and employers having to make this assessment.
In relation to a temporary lay-off the Employment Appeal Tribunal held that a group of employees who had been engaged in all the relevant activities prior to the change, but who had been temporarily laid off were entitled to the protection of TUPE and had the right to be transferred to the new service provider. How long that lay-off had been for and whether it was sufficient to dissolve the organised group of employees is a matter of fact in each case.
With regard to employees on long term sick leave, the Employment Appeal Tribunal held that an employee who had been part of the relevant organised group but who had been on long term sick leave and who had no prospect of an immediate return to work but had been retained as an employee to enable him to gain from the benefits under a permanent health insurance policy, was no longer an active part of an organised grouping. This meant that the employee was not entitled to be transferred when a change of the service provider occurred. In this case the sole reason that the employee had been retained was to enable him to have the benefit of the PHI policy. Once again, this case is very fact specific and the key assessment for an employer will be whether an individual employee on long term sick leave has remained part of an organised grouping providing the relevant service to the customer immediately before the transfer.
If any of these changes causes you concern or is a matter which you would like further advice on, please feel free to contact Richard Keen of our employment team.
ENDS OCTOBER 2015
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