Employment Law Bulletin - Issue 153 - 23 July 2013

Tuesday 23 July 2013

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Employment Case Law

European Court of Human Rights

Article 6(1) | Delay

Plut and Bicanic-Plut v Slovenia - 7709/06 - Chamber Judgment [2013] ECHR 706
18 July 2013

The Applicant is a Slovenian national. She brought proceedings against her former employer in the domestic labour court on 27 October 1998. The entire proceedings before the domestic court, including the appeal process, concluded on 9 January 2007, the date of the domestic Supreme Court's judgment. It therefore lasted eight years and two months at three levels of jurisdiction.
The ECHR reminded itself that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute.
The ECHR noted that in the present case, it took the first-instance court three years and eight months to schedule the first hearing. The ECHR held that such a delay on the part of the domestic authorities in a labour dispute, where additional diligence is required, cannot be considered reasonable. Click here to read the decision.

Court of Justice of the European Union

TUPE | Dynamic terms

Mark Alemo-Herron and Others v Parkwood Leisure Ltd [2013] CJEU C-426/11
18 July 2013

In 2002 Lewisham contracted out its leisure services to a private sector undertaking called CCL Ltd. The employees working in that leisure department became part of the staff of CCL. In May 2004, CCL sold that business to Parkwood, another private sector undertaking.
Under Lewisham, the employees working in that department had the benefit of the terms and conditions negotiated by the National Joint Council for Local Government Services (the NJC). The agreements negotiated were not binding as a matter of law but as a result of a contractual term contained in the relevant contracts of employment.
At the time of the contracting out to CCL, a collective agreement for 1 April 2002 to 31 March 2004 applied. Parkwood did not participate in the collective bargaining and would have been unable to do so since it is a private sector undertaking and not a public authority.
In June 2004, a new agreement was reached within the NJC, which was retrospectively effective from 1 April 2004 and was to continue in force until 31 March 2007. The new agreement was therefore reached after the transfer of the undertaking to Parkwood. Parkwood concluded that the new agreement was not binding on it and notified the employees to that effect, refusing to grant the pay increase agreed within the NJC for the period from April 2004 to March 2007.
The employees brought a claim before an employment tribunal, which was dismissed in 2008. They appealed against that decision to the Employment Appeal Tribunal, which upheld their appeal on 12 January 2009. Parkwood appealed against that decision to the Court of Appeal.
On 29 January 2010, the Court of Appeal upheld the appeal brought by Parkwood and restored the decision of the employment tribunal dismissing the claims brought by the appellants in the main proceedings. The appellants in the main proceedings appealed against that decision of the Court of Appeal to the Supreme Court of the United Kingdom, which decided to refer a number of questions concerning the interpretation and effect of Directive 2001/23 to the Court of Justice for a preliminary ruling.
The Supreme Court asked, in essence, whether Article 3 of Directive 2001/23 must be interpreted as precluding a Member State from providing, in the event of a transfer of an undertaking such as that at issue in the main proceedings, that dynamic clauses referring to collective agreements negotiated and agreed after the date of transfer are enforceable against the transferee.
The Court of Justice held that the answer to the three questions referred is that Article 3 of Directive 2001/23 must be interpreted as precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee, where that transferee does not have the possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer. Click here to read the judgment.

Employment Appeal Tribunal

TUPE | Definition of "service provision change"

London Borough of Islington v Miss J Bannon & CSV UKEAT/0221
The Claimant was employed by CVS as a part time project co ordination manager. Islington decided to discharge its statutory duties under the Children Act through the medium of CSV, and to that end CSV was awarded a contract for the period 2005/2006.
Islington later proposed to award the contract to Action for Children but this proposal foundered as Action for Children were unwilling to take on the project with the Claimant in place given unresolved disciplinary issues. On 31 March 2011, there being no agreement to extend the relationship with CSV or for it to be rescued by Action for Children, the Claimant was dismissed by reason of redundancy.
The Claimant brought a claim for unfair dismissal. At a preliminary hearing it fell to be decided whether TUPE applied to the three parties concerned in the litigation.
In dismissing the appeal and upholding the decision of the ET, the EAT (HHJ McMullen QC sitting alone) held that a diminution of work load does not mean there is a change in service provision. Click here to download a copy of the judgment.

Employment Law Events

Discrimination Law Association Annual Conference
21 October 2013

The Discrimination Law Association will hold its annual conference at the London office of Baker & McKenzie. The Theme will be Equality 2015: Setting the Agenda. Click here for the conference announcement.


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