| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Discover the Government’s Latest Proposed Reforms to TUPE
As part of its review of EU-derived employment law, the Government has launched a consultation on further reforms aimed at simplifying and clarifying the TUPE regulations. The proposals address two rulings which have created uncertainty about whether TUPE applies to workers as well as employees and about what happens when a service is split between multiple providers. We explain the proposed changes.
Proposal 1. Clarifying that TUPE Only Protects Employees
In a surprising decision in 2019, an employment tribunal held that TUPE applies to workers, not just those with full ‘employee’ status.
Tribunal-level decisions aren’t binding on other tribunals but this put the established understanding of TUPE in doubt. If correct, the ruling means you have to include workers in your TUPE information and consultation exercise. This is, however, pointless given that workers can’t claim unfair dismissal, so you or the new employer can then terminate their contracts anyway to prevent them transferring over.
The Government is proposing to amend the definition of ‘employee’ in the regulations to clarify that workers don’t have protection under TUPE.
Potential Impact
This sounds sensible and would reaffirm the traditional interpretation of TUPE, providing certainty for employers. If the new employer wants to take on any workers and the current employer terminates their contracts, it could offer re-engagement on its own terms. However, neither the old nor the new employer would have any obligations under TUPE towards those workers.
Proposal 2. Confirming that an Employee Can Only Transfer to One Employer
When there’s a TUPE transfer, the existing business or service may sometimes be split between two or more new providers. For example, one company may have had the contract to provide the catering at two buildings and instead two companies take over the service, each operating at one building.
This situation was considered by the European Court of Justice (ECJ) in 2020. In that case, a cleaning contract came to an end and the work was awarded to two new cleaning providers. The ECJ held that the employees’ contracts should be split, so they worked part-time for both new companies. This is clearly impractical not just for employers but for employees, who would have to work at multiple sites but can’t be in two or more places at once.
The Government is proposing to amend TUPE to clarify that an employment contract should only transfer to one employer. The employers taking over the business or service would have to agree who should be responsible for each employee’s contract.
Potential Impact
This seems a good starting point. However, we don’t know what would happen if the contract is split between two new service providers – who are likely to be competitors – and neither of them wants to take on particular employees where it’s not clear where they ‘belong’.
What Should You Do Now?
The Government estimates that 6,900 small employers go through a business transfer each year and 18,000 employers in total go through one. It also calculates that around 30,000 service provision changes occur each year.
If TUPE is a significant issue for your business, you should consider responding to this consultation. You have until 11 July to do so. With a general election on 4 July, any changes may be kicked into the long grass. There are also other key areas of TUPE that are arguably ripe for reform that this consultation doesn’t tackle. However, this is your opportunity to have your say on these two issues. You can access the consultation paper here.
| HEALTH & SAFETY
Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
New: HSE Launches the Back Injury Risks in Driving (BIRD) Tool
Today, the Health and Safety Executive (HSE) launches a new paid-for resource as a key part of their suite of tools to help prevent musculoskeletal disorder. The HSE has identified a higher risk of lower back pain and injury amongst workers in certain industries, such as driving and transport, agriculture, shipping and mining, and developed this tool in response. The new BIRD Tool takes a holistic approach to reducing the risk of back pain, by looking at key factors such as posture, twisting, manual handling and vibration exposure. We explain why you should consider using the BIRD Tool by focusing on how this applies to employees who drive for work.
You can use the BIRD tool to support your risk assessment process, in this case, specifically for driving activities. The tool considers all of the 5 main risk factors for driving such as 1) Static and dynamic posture, 2) Manual handling, 3) Vibration from road conditions, 4) Driving time, and 5) Seat condition and set up.
The tool directs you through each of these potential risk factors and produces a Red, Amber Green outcome that you can email to yourself and use as part of your driving risk assessment. It will also help you identify and implement effective risk controls measures.
You should consider using the BIRD tool for anyone within your organisation whose role includes high levels of driving for work, such as sales representatives, peripatetic care givers, delivery drivers, etc.
The BIRD Tool Helps to Identify Hazards
The Tool allows you to consider and identify hazards linked to:
- The ergonomic design of controls within the vehicle and how this affects the ability of the driver to operate the machine or equipment.
- The adjustment arrangements by the driver to reduce the need to twist, bend, lean and stretch or adopting poor postural positions.
- Sitting for long periods of time, without an adequate break to change position.
- Manual handling activities, especially for delivery drivers.
The HSE states that the BIRD tool should be used in conjunction with other tools, such as their MAC Tool (to help assess the risk from manual handling activities) and ART Tool (which helps you assess the risk from undertaking repetitive tasks). Using this suite will help you:
- Tailor and set demographics to fit your organisational structure.
- Complete the identifiers (the key risks) offline via a bespoke mobile app.
- Easily access all tasks once completed.
- Examine the identifiers through an overall organisation report.
- Analyse results based on the various demographics, such as location, the assessor and the department.
- Manage the risks more effectively, as the Tool consolidates all the tasks in one central system, so they can be easily reviewed and analysed.
The system also includes the functionality to filter the output to help you understand the priorities that need to be managed and addressed first.
By utilising the HSE’s BIRD tool, you will enhance your risk assessments by taking into consideration all of the potential risks and also implement effective risk control measures to mitigate the risk of pain and injury to your employees.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
End of May Deadline Approaches for Issuing P60 and Payrolled Benefits
As an employer, not only are you obliged to provide employees with a payslip detailing their pay and deductions each time you pay them but you must also give your employees details of their income and deductions for the tax year as a whole, plus details of any taxable benefits and expenses received. Employees will need this information if they need to complete a tax return. They may also need it for proof of earnings, for example, if they need to apply for a mortgage.
Certificate of Pay and Tax Deducted
You have a legal obligation to provide all employees who were on your payroll on 5 April 2024 with a P60 for the 2023/24 tax year by 31 May 2024. This is a certificate of pay and tax deducted. It will be generated by your payroll software package and can be given to the employee in electronic or in paper format.
The P60 contains details of the employee’s pay for the year and tax deducted from that pay, both for the current employment and any previous employments that the employee held in the 2023/24 tax year where this information was provided to the employer on the employee’s P45 from their previous job. The P60 also contains details of the employee National Insurance contributions for the year.
If the employee left before 5 April 2024, you do not need to provide them with a P60, even if you made payments to them in the 2023/24 tax year.
In the event that you need to change your P60, for example, because you made a correction to your payroll for 2023/24 after you had given the employee their P60, you should issue the employee with a new P60. This should clearly be marked ‘replacement’. You should also give the employee a letter setting out what has changed.
Payrolled Benefits
If you opted to payroll taxable benefits that you provided to employees in the 2023/24 tax year, you will need to provide your employees with details of those benefits by 1 June 2024.
You will need to provide details of the benefit provided, for example, private medical insurance, the cash equivalent value of taxable amount under the alternative valuation rules, as appropriate, and the tax that has been deducted.
You can provide the information on the employee’s payslip, by letter or by email.
Other Benefits
If you did not payroll benefits, or payrolled some benefits and not others, you will also need to tell the employee about these benefits. However, you have a bit more time in which to do this.
Taxable benefits provided to employees in the 2023/24 tax year which have not been payrolled must be reported to HMRC on form P11D by 6 July 2024. You must also provide the employee with details of those benefits by the same date. The easiest way to do this is by giving the employee a copy of their P11D. Although the P11D must now be filed electronically, you can give the employee their copy in whatever format is convenient to you. You can also provide the information in an email or a letter rather than giving the employee a copy of their P11D if you prefer.