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August 2008 Updates

TUPE and equal pay claims

Following the Employment Appeal Tribunal's decision in Sodexho v Gutridge, a transferee (i.e. the new employer that employees transfer across to in a TUPE transfer situation) can be held liable for unequal pay practices carried on by the transferor (the employees' previous employer). This means that, despite having transferred over, employees can use former colleagues (who didn't transfer under TUPE and remained with the original employer) as comparators in an equal pay claim brought against their new employer.

Taking an employee off the payroll does not trigger a
termination of employment

In the case of Radecki v Kirklees Metropolitan Borough Council, the Employment Appeal Tribunal held that the act of removing an employee from the payroll whilst he was suspended and negotiating a compromise agreement was not sufficient to bring the employment relationship to an end.

Agency workers

The BERR (Government Department for Business, Enterprise & Regulatory Reform) has confirmed that new legislation relating to agency and temporary workers is now likely to come into force in either April or October 2009. It was originally anticipated that it would be adopted in October 2008. The Government, the CBI and the unions have already reached an agreement whereby agency workers are to be given the same rights as permanent employees in certain areas (primarily pay and holiday) after 12 weeks in a job. The Government has indicated that it intends to incorporate this into English law (subject to the final version of European legislation for the protection of agency workers which is currently being negotiated by Member States).

New Government initiative to crack down on rogue employers

The BERR has also announced a new Government drive to crack down on rogue employers who abuse vulnerable workers. The strategy includes a single telephone helpline for vulnerable workers to report abuses to the Government's workplace enforcement agencies. The strategy also involves a £6 million information campaign to raise awareness of employment rights and how to enforce them. This initiative will be overseen by a new Fair Employment Enforcement Board.


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