Employment Law Newsletter – August 2012

Welcome to August’s edition of our employment law newsletter, keeping you up to date with changes in employment law, and informing you of recent case law developments.

Fees in the Employment Tribunal

The Ministry of Justice has published their results following consultation.  The changes are intended to be implemented in 2013 whereby claimants wishing to lodge claims will have to pay in order to do so.   There are various fees depending on the type of claim and whether it is in the Employment Tribunal or the Employment Appeal Tribunal.   The fees range from £160 to £400 for issuing and from £230 to £1200 for hearings.   

Drake and Ipsos Mori UK Limited

Mr Drake worked on an “assignment by assignment” for the Respondent for a period of 4½ years.   He claimed each individual assignment was a contract of employment to preserve his continuity of service in order to bring a claim for unfair dismissal.    The Respondent sought to argue that in fact he may have been a worker but he was not an employee.    The EAT reversing the Employment Tribunal’s decision stated that there was a contract in place and sufficient mutuality of obligation for Mr Drake to be an employee.   The EAT noted in their decision that the Respondent’s handbook referred to the “assignments” as being contracts.   As we have advised previously, many of these cases turn on their own facts.   However, it is a good reminder to ensure that the status of your employees/workers is clear and consistently referred to in any additional documentation.

Holiday Pay Carry Over

The Court of Appeal has held in NHS Leeds v Larner that a worker who has not taken paid annual leave in the relevant year due to sickness can claim a payment in lieu on termination of employment without having made any prior request to carry the leave forward.   The Claimant had relied on Article 7 of the Working Time Directive which had direct effect against the NHS as an emanation of the State.   The Court, however, went on to state that in the case of a private employer, under the Working Time Regulations it  could be construed, purposively, to give effect to the same position under Article 7 of the Directive. 

Employment Status

The Court of Appeal have held in the Hospital Medical Group Limited v Westwood that a GP carrying out hair restoration procedures for a private clinic was a “worker” for purposes of employment legislation.   Dr Westwood who ran his own GP Practice had been approached by the Respondent Company to undertake procedures relating to hair restoration on their behalf.   The doctors recruited by the Respondent Company were not engaged on contracts of employment.   On reviewing the position it was noted that Dr Westwood was contracted specifically and exclusively to carry out hair restoration surgery for the company and had been referred to as “one of our surgeons”.   As a result the Court felt he was clearly an integral part of the business and was providing services despite being in business on his own account as a GP.  

Breakdown of Trust “Dismissals”

The Court of Appeal in Leach v OFCOM have held that breakdown of trust cannot always be a substantial and sufficient reason for dismissal and it will very much depend on the relevant circumstances of each individual case.   The Court pointed out that although mutual trust and confidence is an integral part of an employment relationship breach of it is not a “convenient label to stick on any situation” in order to dismiss an employee in the absence of one of the other lawful reasons for dismissals.

Vicarious Liability

Despite its unusual facts this case will have great significance on the scope of vicarious liability in atypical employment situations.   In the case of J G E v The Trustees of the Portsmouth Roman Catholic Diocesan Trust, the Court of Appeal held that a catholic priests are not an employees, however, where non-employees were employed in a relationship so close in character to employment, it was just and equitable to hold “the employer” liable for their acts.   Thereby extending the scope of vicarious liability to non-employees.   This case arose out of J G E who was in a children’s home run by the Church.   She brought a personal injury claim alleging that she had been sexually abused.  The Court of Appeal set out four points to consider in identifying such relationships:-

  1. The control the organisation had over the individual;
  2. Whether the individual performed a core function of the organisation;
  3. Whether the individual was integrated into the organisation; and
  4. Whether the individual was in business for themselves.

 Disability Discrimination

The EAT have held in Olenloa v North West London Hospitals that the duty to make reasonable adjustments does not end when an employee goes on sick leave.   In this case Mr Olenloa argued that reasonable adjustments would have prevented him from going off on sick leave and even if made later allowed him to return.   Therefore the continuing failure to make reasonable adjustments could ultimately mean that a claimant has a longer period of time to lodge a claim.  

Death in Service Benefit

The EAT in Fox v British Airways has held that the estate of an employee who was unlawfully dismissed and died shortly after could bring a claim for loss of a death in service benefit.   Mr Fox had been unfairly dismissed in a discriminatory manner and died within days of being dismissed.   His estate launched a claim for unfair dismissal and discrimination and was successfully able to claim against the company.   However the case does turn on its own facts and therefore advice should be taken in any particular matter of this type.

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