1. Legal News - TUPE and RedundancyYou may recall that we alerted you a couple of years ago, to an anomaly arising because of contracting-out under TUPE in relation to s.46 enhanced pension benefits. These benefits apply in redundancy, providing that the member is at least 50 years of age and has at least 5 years' service. The benefit is significant in that it can effectively double service in the pension scheme up to a maximum of 10 years. Mrs Osbourne and Mrs Galopin had been TUPE'd from the PHLS to CLS but were unable to take up their posts with CLS, because their location changed and they were unable to move with the job. They were therefore made redundant and received redundancy pay under Whitley terms. They were also eligible for S.46 benefits, but CLS refused to pay them on the grounds that they were pension entitlements, which are not covered by TUPE. We have always disagreed with this analysis, because the entitlement is payable in a redundancy situation and allied to the redundancy scheme. However, the case of Beckmann had been referred to the European Court of Justice (ECJ) on the same point and we have been awaiting the outcome. We have now heard that the ECJ found for Ms Beckmann and therefore we intend to pursue our members' claims to the High Court. This is a far-reaching decision for NHS employees and we are awaiting a copy of the decision and commentary from our solicitors, so that we can further brief members.
You may recall that we alerted you a couple of years ago, to an anomaly arising because of contracting-out under TUPE in relation to s.46 enhanced pension benefits. These benefits apply in redundancy, providing that the member is at least 50 years of age and has at least 5 years' service. The benefit is significant in that it can effectively double service in the pension scheme up to a maximum of 10 years.
Mrs Osbourne and Mrs Galopin had been TUPE'd from the PHLS to CLS but were unable to take up their posts with CLS, because their location changed and they were unable to move with the job. They were therefore made redundant and received redundancy pay under Whitley terms. They were also eligible for S.46 benefits, but CLS refused to pay them on the grounds that they were pension entitlements, which are not covered by TUPE.
We have always disagreed with this analysis, because the entitlement is payable in a redundancy situation and allied to the redundancy scheme. However, the case of Beckmann had been referred to the European Court of Justice (ECJ) on the same point and we have been awaiting the outcome.
We have now heard that the ECJ found for Ms Beckmann and therefore we intend to pursue our members' claims to the High Court. This is a far-reaching decision for NHS employees and we are awaiting a copy of the decision and commentary from our solicitors, so that we can further brief members.
2. The Beckmann Ruling
Redundancy Benefits Under S.46 of the Whitley Council Agreement & TUPE
Introduction
Where an employee is made redundant aged over 50, with at least 5 years reckonable service in the NHS Pension Scheme, the Whitley Council agreement provides for enhanced redundancy benefits.
Employees are also entitled to redundancy payments under s.45 of the Whitley Council agreement, which are then abated if s.46 also applies.
TUPE and the Acquired Rights Directive
The issue has always been whether or not entitlement to benefits under s.46 of the Whitley Council agreement transfers under TUPE and/or the Acquired Rights Directive.
Test Case
A test case-Katia Beckmann v Dynamco-was taken. Ms Beckmann worked for the North West Regional Health Authority until 1995 when her employment transferred under TUPE to Dynamco. She was made redundant in May 1997 and claimed benefits under s.46.
On 4 June 2002, the European Court of Justice ruled: · s.46 benefits are not related to "old age" for the purpose of Article 3 of the Directive; and · entitlement to them therefore transfers under the Directive.
Implications in the NHS
The ECJ ruling should apply to all Amicus/MSF members made redundant, aged 50 over, by a private sector employer after a TUPE transfer from the NHS. However, the claims will be based on a breach of the employment contract and the value of the benefit claimed is likely to exceed £25000-the maximum award a Tribunal can make in a breach of contract claim. Claims may also therefore have to be submitted in the High Court.
Time Limits & Precautions
The time limit for a Tribunal claim will be 3 months from the date of leaving employment.
High Court claims need to be brought within six years of the earlier of the date of payment of any redundancy payment and the date of termination of employment.
It is vital that members who may be eligible to make claims do not effectively waive their right to pursue a claim. The terms of any compromise (or other) agreements entered into at the time of redundancy must be carefully checked to ensure that claims relating to enhanced redundancy benefits are excluded.
Where a member already has an Employment Tribunal case encompassing s.46 benefits in progress, that claim should not be withdrawn from the Employment Tribunal without seeking legal advice. This is because withdrawal of the claim could preclude the member from pursuing the claim in the High Court.
The full briefing document on this case can be found on our website at www.msfhealth.org
3. Trusts Paying Less Than Whitley Rates
The following Trusts have been identified by the Staff Side to the Department of Health as paying less than Whitley rates. Amber Valley PCT Arrowe Park Cornwall Health & Social Care Partnership Derbyshire Mental Health Trust Derbyshire Mental Health Trust Devon Partnership Trust Doncaster PCTs Dorset County Hospital Dudley South PCT George Elliot Hospital Trust Hinchinbrooke Kensington and Chelsea PCT Kettering (midwives only) Langbaurgh PCT Lincoln County and Lincoln Healthcare Trust Mansfield PCT Middlesborough PCT Northallerton Health Services Trust North Devon Healthcare Trust North Dorset PCT North Tees Hospitals Trust North Tees PCT Pembrokeshire and Derwent NHS Trust Plymouth PCT Poole NHS Trust Portsmouth Community Trust Royal Bournemouth and Christchurch Trust Royal Cornwall Hospital Trust Scarborough & North East Yorkshire NHS Trust Sheffield Teaching Hospital NHS Trust South and West Dorset PCT South Derbyshire Acute Trust South Tees Hospitals Trust Southern Derbyshire & Dales PCT Tees and North East Yorkshire Mental Health Trust West Cumbria PCT
The following Trusts have been identified by the Staff Side to the Department of Health as paying less than Whitley rates.
It has become apparent that some Trusts whilst paying most employees the correct rate treat some groups differently and pay less than the Whitely rate. We believe that Whitley is the minimum that any individual should receive whilst working in the NHS and any local arrangements should be over and above this in order to address particular recruitment and retention problems or the need to staff certain rosters.
Small groups appear to be particularly vulnerable to unfavourable treatment. As a result of an initiative from the College of Healthcare Chaplains sessional rates and allowances have now been improved to the Whitley rate.
Could all Reps please check that the appropriate Whitely rates are paid for all terms and conditions and for all groups. If you need to clarify any aspect of terms and conditions available for a particular group please check with Colin Adkins, Health Section Research Officer (Colin.Adkins@amicus-m.org).
4. Stress At Work
HSE LAUNCHES REPORT ON INTERVENTIONS TO CONTROL STRESS AT WORK IN HOSPITALS The Health and Safety Executive (HSE) has issued a report into the control of stress within UK health services. The current research report describes: · A methodology for assessing psychosocial risks & organisational hazards; · How to prioritise findings to translate into interventions/action plans; · How to implement and evaluate interventions; and · Case studies to illustrate the model. Why not get your trust to purchase copies for its H&S Representatives? Copies of Interventions to control stress at work in hospital staff, Contract Research Report 435/2002, ISBN 0 7176 2360 2, price £20.00 can be ordered online at http://www.hsebooks.co.uk or are available from HSE Books, PO Box 1999, Sudbury, Suffolk, CO10 2WA, tel: 01787 881165 or fax: 01787 313995. HSE priced publications are also available from all good bookshops.
HSE LAUNCHES REPORT ON INTERVENTIONS TO CONTROL STRESS AT WORK IN HOSPITALS
The Health and Safety Executive (HSE) has issued a report into the control of stress within UK health services.
The current research report describes: · A methodology for assessing psychosocial risks & organisational hazards; · How to prioritise findings to translate into interventions/action plans; · How to implement and evaluate interventions; and · Case studies to illustrate the model.
Why not get your trust to purchase copies for its H&S Representatives?
Copies of Interventions to control stress at work in hospital staff, Contract Research Report 435/2002, ISBN 0 7176 2360 2, price £20.00 can be ordered online at http://www.hsebooks.co.uk or are available from HSE Books, PO Box 1999, Sudbury, Suffolk, CO10 2WA, tel: 01787 881165 or fax: 01787 313995. HSE priced publications are also available from all good bookshops.