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Everyone’s favourite subject is back on the agenda; with a consultation on a number of proposed changes to the provisions within TUPE having been initiated by the Government. This consultation is expected to run until 11th April 2013 and any changes arising out of this consultation will likely take effect from October 2013. That said; any proposed repeal of the ‘service provision’ changes are likely to be given a long lead in time of between 3 and 5 years. 
The proposed changes being consulted upon include: 
Removing the service provision changes from the scope of TUPE (i.e. those that involve outsourcing, insourcing and re-tendering) 
Amending the wording of the provisions that restrict changes to employee terms to reflect the minimum requirements in European law more closely 
Removing the obligation to provide specific employee liability information (replacing this with a simple requirement that information necessary for the purpose of information and consultation should be disclosed to the transferee in advance of the transfer) 
Ensuring that dismissals due to a change in the location of the workplace are regarded as an 'economic, technical or organisational' (ETO) reason, with the result that such dismissals are not automatically unfair 
Clarification that collective redundancy consultations are not necessary in addition to pre-transfer consultations for the purposes of TUPE - any consultation by the transferee, before the transfer, with representatives of transferring employees will count for the purposes of collective redundancy consultation 
Allowing micro-businesses to consult directly with individual employees, rather than having to elect representatives (unless union representatives or workplace representatives are already in place). 
Limiting the future applicability of terms and conditions derived from collective agreements to one year after the transfer. 
Whether ETO dismissals should be allowed to take effect prior to the transfer. 
We will wait to see the outcome of the consultation and keep you posted on developments in this area
Agency Worker Regulations  
When the Agency Worker Regulations 2010 were introduced in October 2011, they also included a provision known as the ‘Swedish Derogation Model’; this model enabled agency workers to sign a type of employment contract with their Agency and by doing so, give up the right to ‘pay parity’ with direct recruits employed by the ‘Hirer’ in return for some guaranteed pay from the Agency between assignments. In a recent case, an employment Tribunal has confirmed that this is a valid model under which Agencies can take on agency workers and for employers to ask agencies to operate. 
The case in question involved an Agency who has a long-term arrangement to provide tanker drivers to BP. When the Agency Workers Regulations came into force, BP became concerned that the Unions representing their direct recruits would demand a ‘parallel pay rise’ if agency workers were given equal pay and as a consequence, BP required its Agencies to switch to the ‘Swedish Derogation Model’. 
A group of the Agency’s tanker drivers signed the new agreements, albeit reluctantly and these agreements appeared to comply with the requirements of the Agency Workers Regulations for these exceptions to apply. Included within the agreement was: - 
The contract of employment must contain a statement that the agency worker gives up the right under the Agency Workers Regulations to the same employment as direct recruits insofar as they relate to pay and; 
The Agency must take reasonable steps to obtain suitable employment for the agency worker and pay them for at least four calendar weeks before it can terminate the contract. 
The tanker drivers challenged the validity of these agreements in a bid to claim equal pay with BP’s own directly recruited tanker drivers and having considered the detailed provisions of the Swedish Derogation Model, the Tribunal concluded that it was a valid model to use. 
Equality Act 2010 
It has now been announced that the provisions for ‘third-party’ harassment contained within the Equality Act will be repealed from March 2013. The provision had placed employers at the risk of being held liable for any acts of ‘harassment against an employee committed by a third party i.e. a customer, client, supplier etc. The Act stipulated that for liability to exist; 
Harassment would have occurred on at least two previous occasions 
The employer is aware that it has happened 
The employer had failed to take reasonable steps to prevent it from happening again. 
Although repealed; employers are advised to adopt a ‘best practice approach’ to this issue and to put in place appropriate provisions within their internal employment policies to protect their employees from the impact of harassment from a third party e.g. customer, supplier, clients etc. 
Also; Section 138 of the Act, which covered the Questionnaire procedure used by an individual who suspects that they may have been discriminated against to gather information their employer will be repealed at the same time 
Extension of Flexible Working Rights 
A consultation will be issued by ACAS during 2013 to look at the Statutory Code of Practice and Best Practice Guide on the extension of flexible working rights to all employees and not just those with caring/parental responsibilities. Specifically, the consultation will look at ‘setting out what a reasonable process requires’. 
As is the case currently, with the extended scheme, an employee will have the right to request flexible working if they have at least 26 weeks’ continuous service with their employer. Flexible working options include such things as; job-share, compressed hours, staggered hours, working from home, part-time working, annualised hours to name but a few. 
A new duty will be placed on employers to consider any requests for flexible working in a reasonable manner and within a reasonable period of time. Employers will still have the right to refuse a request for flexible working, providing that they can show that they are acting reasonably in reaching that decision. 
The Guidance, once issued, will advise employers on balancing requests for flexible working with current discrimination legislation and employers will be advised to put in place a policy for managing flexible working requests in order to show that they are acting fairly. The policy should reflect the provisions contained within the Code of Practice. 
The changes are expected to be introduced in early 2014 and unlike some other employment provisions, will affect those employers considered to be ‘micro’ employers i.e. those with fewer than ten employees. 
Disclosure and Barring Service Checks 
This month has seen the reporting of a case which has challenged the scope of DBS (formerly CRB) checks made when recruiting staff; finding that ‘blanket’ requirements to disclose minor offences and cautions amounts to a breach of Article 8 of the European Convention of Human Rights (ECHR), the right to a private/family life. 
The Court of Appeal in R (on the application of T) v. Chief Constable of Greater Manchester has held that statutory criminal record checking scheme is incompatible with the ECHR. In its ruling, the Court has stated that whilst the scheme pursues a legitimate aim, that of protecting employers and vulnerable persons and enabling the former to make an assessment as to whether a person is suitable for a particular kind of work; placing a requirement for the disclosure of all recorded convictions and cautions is disproportionate in the achievement of that aim. 
Whilst certain criminal convictions, warnings and cautions etc. are generally deemed to be ‘spent’ after a specified period of time and do not have to be disclosed to a prospective employer, some will never be considered to be ‘spent’. However, the enhanced DBS (CRB) check conducted on individuals looking to work with vulnerable adults and young people will reveal all such entries on that individual’s record to the prospective employer, regardless of whether they are ‘spent’ or not. It is this aspect of the scheme that the Court of Appeal found to be ‘objectionable and disproportionate’. 
The Court rejected the Governments’ argument that employers can be trusted to assess the relevance of a conviction or caution and will take into account such matters as the seriousness of the offence, the age of the person at the time of the offence and the period of time which as lapsed since the offence was committed; in rejecting this argument the Court has indicated that the evidence suggests that employers do not interpret the information correctly and fairly and in the absence of adequate resources and appropriate training, will err on the side of caution in deciding on how to act upon the outcome of the DBS check. 
An appeal will be submitted to the Supreme Court by the Government, but if the Supreme Court upholds the decision of the Court of Appeal, then it is likely we will see some changes being made to the DBS enhanced checking system. 
Health & Safety Update ~ Corporate Manslaughter 
The Crown Prosecution Service is bringing three more prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007. Up until now, there have only been three successful convictions under this Act across the whole of the United Kingdom.  
An Organisation can be found guilty of an offence under the 2007 act if: - 
A fatality is caused by a gross breach of a relevant duty of care and; 
If the Senior Management of the Organisation has organised its activities in a way that formed a substantial element of that breach. 
A conviction can result in the application of unlimited fines; with a recommended starting point of £500,000 although the convictions so far have seen much lower fines imposed, with £480,000 being the highest fine to date in a case against Lion Steel Ltd in July 2012. The three cases being brought are: - 
A Garden Nursery is to be prosecuted following the fatal electrocution of a worker, when the metal hydraulic trailer he was towing touched an overhead power line. The nursery operator faces charges of Corporate Manslaughter and also of breaching the Health and Safety at Work Act 1974 for failing to ensure the safety of its employees. 
A mining company is to be prosecuted following the deaths of four miners working at one of its Collieries. In addition, the Manager of the Mine will also face charges on four counts of ‘gross-negligence manslaughter’ as it is alleged by the CPS that the manner in which the activities were organised at the mine were managed by senior management in such a way that they failed to ensure a ‘safe system of working’. It is alleged that this failure amounts to a gross breach of the duty of care owed by the Company to the miners and this ultimately resulted in the death of the four miners. 
The final case involves a sporting club; who will be prosecuted for Corporate Manslaughter following the death of a young-girl, who fell from a ‘banana boat ride’ and was then hit by the boat that was towing the ride. The Club will also be charged with breaches of the Health and Safety at Work Act for failing to conduct their business in a way that ensures, as far as is reasonably practicable, that others are not exposed to risk. A director of the Club will also be charged under this act. 
We will continue to monitor these cases and bring you an update when they become available. 
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