Employment News
What’s been making employment news lately?
Some of the latest HR and employment news from Humana Resources.
TUPE LATEST
Metropolitan Resources v Martin Cambridge
The Employment Appeals Tribunal (EAT) considered in Metropolitan Resources v Martin Cambridge whether a contractor taking over the provision of services but providing those services in a new way at a new site meant that TUPE no longer applied.
The EAT held that a "..common sense and pragmatic approach is required.."; that the fundamental question for a tribunal is "..whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor.." According to the EAT, "Where one contractor ceases and another commences service provision with differences in time, manner and/or place, TUPE can still apply."
EMPLOYMENT DISPUTE
Bank worker not required to repay overpayment of wages (Keenan v Barclay's).
An Employment Tribunal (ET) has held that a bank worker does not have to repay any of the £20,000 she was overpaid over a three-year period and she must be allowed to keep her inflated salary.
The worker, Mrs. Keenan worked part-time for the Woolwich and was told that when Barclay's took them over she would receive a 'significant' pay rise. Therefore, when her salary increased from £9,500 to £17,000 she assumed this was her promised increase. Unfortunately due to an error she should have been paid a pro rata amount of £17,000 to reflect her part-time hours.
To make things worse, on the basis of her increased wage she applied for a mortgage. Barclay's even gave her a reference confirming her salary as £17,000 per annum as part of that mortgage application. Mrs. Keenan also continued to receive pay rises and a performance-related bonus without the bank spotting their error. It was only after three years that the overpayment was finally realised and the bank tried to reduce her salary and to recover the £20,000 over-payment.
The ET held Barclay's to be totally to blame for the error. The tribunal also found that Mrs. Keenan was an honest person who would have spoken up if she had thought the bank had made a mistake. Therefore, there was no 'unjust enrichment' on Mrs. Keenan's part and she should keep the money.
This case illustrates the common law of 'estoppels' - Mrs. Keenan was not at fault; she had spent and committed the money; her employer had effectively confirmed the wages were hers; and a great deal of time had gone by before the bank realised its error. Of course, if it was patently obvious that an employee knew they had been overpaid and had just kept quiet then the outcome could have been totally different.
UNFAIR DISMISSAL
Fireman wins case after unfair sacking.
A senior fireman, who was dismissed for gross misconduct and sexual harassment after being involved in defacing a colleague’s name badge, has won £45,000 in damages. Andrew Bridge had been a member of the Lancashire Fire and Rescue Service (LFRS) for 26 years and held the post of Crew Manager prior to his dismissal. Mr Bridge tampered with his colleague’s identification badge to turn her name, Jeanette McFall, into an offensive word. She was very upset at the prank.
The employment tribunal held that the LFRS had not followed correct procedures, such as offering a written warning or a demotion, and they had not taken account of Mr Bridge’s unblemished work record. They further found that the internal investigation carried out had procedural failings. The LFRS plans to appeal.
