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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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RECENT CASES |
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In this case, the employee’s contractual retirement age was agreed as a result of the transfer to be 65 (the employee’s contractual retirement age with the transferor had been 60). However, after the transfer the transferee notified the employee that they would be retiring him on his 60th birthday. The EAT held that the employee could rely on his contractual retirement age being 65 so that he was eligible to claim unfair dismissal. Power v Regent Security Services Ltd [2007] IRLR 226, EAT now reported at [2007] ICR 970, EAT Comment 1. On the other hand, the EAT opined, if the employee wants to, he can object to any variation which he considers to be to his detriment (even if the change has compensating advantages) and can treat it as void. In such situations, the EAT commented that the employee may well have to give up any related compensating benefits obtained under the varied contract as a condition of doing so. The EAT emphasised that this ability to choose which terms to rely on applies to employees only and no similar right is to be conferred on the transferee. As a result of this case, the Department of Trade and Industry (now called the Department of Business, Enterprise and Regulatory Reform) has amended its Guide to the new TUPE Regulations to make it clear that changes to contracts agreed by the parties which are entirely positive are not prevented by the Regulations. See http://www.berr.gov.uk/files/file20761.pdf. 2. Note that the upper age limit of either the normal retiring age for a job or the age of 65 (if lower) for unfair dismissal claims has been removed with effect from 1 October 2006 by the Employment Equality (Age) Regulations (see ¶8412).
Information and consultation in the workplace Domestic information and consultation Failure to reach agreement ¶7715 Certain employers are required to inform and consult UK-based employees on an ongoing basis about potential measures which will affect their employment prospects and which are likely to lead to substantial changes in the workplace. This process is governed by the locally-negotiated information and consultation agreement. Where there is no agreement, employees may make a formal request to initiate negotiations towards reaching an agreement. Where a valid employee request has been made by more than 40% of employees, the employer is under an obligation to initiate negotiations for an agreement. Where a valid employee request has been made by between 10% and 40% of employees, the employer may ballot the workforce to establish whether there is general support for the request. The decision on whether or not to require a ballot must be taken by the employer and the employer must inform all relevant employees within 1 month of receiving the request (¶7685). Where the employer chooses not to require a ballot, the employer will be deemed to have accepted the request. The standard information and consultation provisions (¶7745) will be deemed to apply from 6 months after the employee request has been received. In this case, an employer M received a valid request on 15 March 2006 from around 14% of its employees. M had a pre-existing agreement in place, but this only affected one of its sites. M neither negotiated with its employees, nor reached an agreement with them, nor allowed elections of information and consultation representatives to take place. The employer was asked on 15 March to hold a vote to elect information and consultation representatives but by 15 October 2006 had not done so. The CAC therefore gave an order that an election should be held. Amicus v Macmillan Publishers Ltd [2007] IRLR 378, CAC |