This month's newsletter includes the following :-
- Working grandparents to be entitled to shared parental leave and pay
- A national occupational health service?
- HMRC Guide to tax and national insurance contributions treatment of business travel
- BIS and ACAS publications
- Culpability should not be decided by HR
- No particular ‘degree’ of association necessary for associative discrimination complaint
- Permanently incapacitated employee did not transfer under TUPE
- Transfer of a business including assumption of subsidiary’s obligations and assets
- ECJ rules that working time for workers with no fixed workplace includes travel to first and from last customers
It has been announced that shared parental leave and pay to working grandparents will be extended. We understand that it is intended that the legislation be put into force by 2018.
The Fit for Work (FFW) Service is now available for employers across England and Wales to refer employees who have been off work for four weeks or more (including self certified absence). There are two parts to this service. The first is free health and work advice through its website and advice line. The second is a free referral for an occupational health for employees who have reached, or whose GP expects them to reach, four weeks of sickness absence.
It is important to note that the service is not mandatory since it depends on the employee consenting to the referral and the referring GP or employer considering that there is a reasonable likelihood of the employee making at least a phased return to work.
The main aim of the FFW is establishing a return to work plan with a view to encouraging employees back to work.
HMRC have published a revised guide to the tax and NICs treatment of business travel by employees. It explains what counts as ‘business travel’ and for employees other than those using their own vehicles, the kinds of expenses which qualify for tax relief.
For further information please visit:-
Measures to ensure fair pay
BIS has announced a package of measures to ensure workers receive fair pay. These include:-
- Doubling the penalties for non-payment of the National Minimum Wage and the new National Living Wage from 100% of arrears to 200%
- Increasing the enforcement budget
- Setting up a new team in HMRC to take forward criminal prosecutions against those who do not comply
- Ensuring that anyone found guilty will be considered for disqualification from being a company director for up to 15 years
A new team of compliance officers will have the power to use all the available sanctions, including penalties, prosecutions and naming and shaming the most exploitative employers
Acas guides on recruiting staff and inductions
Acas have launched two practical guides to help employers and managers recruit and ‘settle in’ staff
The EAT provided useful guidance to HR professionals if they are assisting a decision maker during a disciplinary process.
The test to establish a fair misconduct dismissal is set out in BHS v Burchell  IRLR 379 . The test is that at the time of dismissal the employer must believe that the employee is guilty of misconduct; have reasonable grounds for so believing; and have carried out as much investigation as was reasonable in the circumstances.
In Chhabra v West London Mental Health NHS Trust  UKSC 80, the Supreme Court held that Human Resources must limit its advice to matters of law and procedure.
In Ramphal v Department for Transport, Mr Ramphal was an aviation security compliance inspector who was subject to disciplinary proceedings in relation to abuse of expenses and hire cars.
The EAT held that it is possible to bring a claim based on associative victimisation and that it was not necessary to establish a particular kind of relationship between the claimant and those who had done the protected act.
Mr. Thompson was a bus driver and he was dismissed following an incident where he gave his high visibility vest to another employee. He issued claims for unfair dismissal, notice pay and victimisation. He also raised an internal appeal, the result of which was to overturn his dismissal and impose a 21 day unpaid suspension and final written warning. Therefore the only claim to proceed was the victimisation claim which was based on the protected acts of others.
The EAT held that an employee who was permanently incapacitated and receiving PHI was not "assigned to" a particular grouping on a service provision change.
Under Regulation 3(3)(a) Transfer of Employment (Protection of Employment) Regulations 2006 there must be an organised grouping immediately before a service provision change which has as its principal purpose the carrying out of activities for the client. Regulation 4(1) transfers those employees who are assigned to the organised grouping. When determining whether an employee is assigned, a tribunal must look at all the facts and take into account all relevant circumstances.
Ferreira da Silva e Brito and others v Estado portuges C-160/14
The ECJ found that there had been a transfer of a business pursuant to TUPE where a majority shareholder assumed a subsidiary’s obligations and assets.
The ECJ had to consider whether Article 1(1) of the Acquired Rights Directive covered a situation where AIA (a company offering charter flights) was wound up and TAP (the main shareholder in AIA) began to operate some of the flights previously run by AIA.
Federación de Servicios Privados Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL 
The ECJ has delivered a preliminary ruling holding that where workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’.
In this case, Tyco carried out in many Spanish provinces the installation and maintenance of security systems. It closed its provincial offices and the employees were attached to the main office in Madrid. The technicians used company vehicles to travel every day from their homes to install/ maintain the systems. They used the same vehicle to return home at the end of the day. Tyco regarded the time spent travelling between home and customers as rest periods. The Spanish court asked the ECJ if Article 2 of the Working Time Directive 2003 (implemented as the Working Time Regulations 1998 in the UK) should be interpreted in this way. Article 2 defines ‘rest period’ as meaning any period which is not working time.