Agency Workers

Hot on the heels of the EAT's decision in James v Greenwich Council (see bulletin 22/12/06) comes another decision on agency workers from a differently constituted division of the EAT.

In Craigie v Haringey, Bean J. declines to follow the Court of Appeal's decision in Dacas v Brook Street Bureau on the grounds he preferred to focus on the more traditional 'necessity' test for implying a contract. He upheld a tribunal's decision that there was no 'necessity' to imply a contract of employment between agency worker and end-user.

The EAT commented that the law on agency workers is unsatisfactory, but that it needs legislation to change it (para. 17).

Craigie v Haringey

New ET1 Data Upload Facility

The Employment Tribunals Service has, today, introduced a data upload facility on its website.

The system is designed to handle and process details of large numbers of cases which are being lodged as a group (a multiple) in one submission and has been developed for corporate users who have their own IT support. The ETS states that this is not suitable for individuals without advanced IT support.

For more information, click here (note: tomorrow the ETS will be adding an explanatory powerpoint display at this address)

Who is a Worker?

The EAT has, this morning, handed down a lengthy analysis of the meaning of the word 'worker'. Although the decision is in the context of the minimum wage legislation, it has ramifications for other areas of employment law.

Elias P. stated that the essential question is:

"...whether the obligation for personal service is the dominant feature of the contractual relationship or not. If it is, then the contract lies in the employment field..." (para 67).

The case also considers issues relating to mutuality of obligation - it is a useful case to read.

James v Redcats

[Thanks to Ed Mallett of Littleton Chambers, junior Counsel for the successful employee, for telling me about this case]

How not to Inform and Consult

The CAC has ruled against Macmillan Publishers for failing to respond properly to an employee request for information and consultation.

The CAC decision is highly critical of the employer. The case is a salutary lesson in how not to respond to an employee request under the Information and Consulation of Employees Regultions 2004.

Amicus v Macmillan

[Thanks to Philip Sack, Director of Policy at the European Studies Group, for telling me about this cas]

New ET Practice Directions, Scotland

In 2004, the new procedural rules gave the Presidents of the Employment Tribunals power to issue national Practice Directions.

The President in Scotland has recently issued three Practice Directions, available here and dealing with:

* providing a list of documents 14 days before a hearing

* sists (stays) for mediation

* contractual counterclaims

No Practice Directions have yet been issued in England or Wales

Restrictive Covenants

The Court of Appeal has, this morning, handed down a decision considering the reasonableness of a 12-month post-termination non-competing restrictive covenants for the managing director of an insurance broker.

The Court, in a judgment considering many of the authorities on such covenants, upheld the enforceability of the non-competition clause.

Thomas v Farr plc

Minimum Wage - gas & electricity

he Court of Appeal has, this morning, handed down its decision in Leisure Employment v HMRC, upholding the decision of the EAT (see bulletin 13/4/06).

In a judgment combining policy arguments with a detailed analysis largely lifted from Elias P.'s earlier decision, the Court of Appeal held that a deduction from wages of £3 per week, in respect of a payment for gas and electricity, was part of the provision of living accommodation (in respect of which the employer had already taken advantage of the maximum allowance) and, in the alternative, that the deduction was for the employer's own use and benefit.

Accordingly, the employer could not count the £3 per week towards the employees' wages. This, in turn, meant that the employer (which owns the Butlins brand) was in breach of the national minimum wage legislation.

In a (partially) dissenting judgment, Wilson LJ described this consequence of the national minimum wage legislation as "regrettable", as it would amount to a disincentive to employers who wish to help provide living accommodation to low-paid staff.

Leisure Employment Services v HMRC

[Thanks to John Bowers QC of Littleton Chambers, who represented Leisure Employment Services, for telling me about this decision.]

Expired Disciplinary Warnings

Expired warnings can never be taken into account when deciding whether to dismiss an employee, the EAT has stated in Airbus UK v Webb.

Three weeks after a final written warning expired, Mr Webb committed a similar offence (with four colleagues) to that for which he had previously been warned. He was dismissed. They were not. The employment tribunal, by a majority, found the dismissal was unfair because of inconsistent treatment. The employer appealed, on the basis that it was legitimate for an employer to take an expired disciplinary warning into account.

Reciting the competing arguments, Elias P. said he considered it to be a finely balanced point (para. 56). That being the case, he chose to follow the Scottish Court of Session case of Diosynth v Thomson (see bulletin 1/2/06), and held that "a tribunal is obliged, and not merely entitled, to ignore expired warnings" (para. 60)

Airbus UK v Webb

Age Discrimination and Retirement Ages

The Advocate General has, this morning, delivered his opinion in the Spanish case of Palacios v Cortefiel Servicios SA.

In considering whether a national law allowing for compulsory retirement upon reaching a certain age was inconsistent with the EU Equal Treatment Framwork Directive 2000, the Advocate General stated that the EU Directive does not apply to state laws setting retirement ages (paras. 63-67). And even if the Directive did apply, such a national provision was justified (paras. 72 and 78).

An Advocate General's opinion is not binding upon the ECJ, but it is unusual for it not to be followed. If the ECJ reaches the same conclusion, it does not bode well for Heyday's challenge to the UK mandatory retirement procedures contained in the Employment Equality (Age) Regulations 2006.

Advocate General's Opinion in Palacios v Cortefiel Servicios SA

Paying salary as a reasonable adjustment under the DD

The EAT has handed down a decision confirming that it will not normally be incumbent on employers to pay salary to those on long-term sick, who qualify as disabled, as a reasonable adjustment under the DDA 1995.

Reaffirming its earlier decision in O'Hanlon v HMRC, the EAT stated that such an adjustment was not normally reasonable because it would not help the employee return to work. It confirmed that the (seemingly) contrary decision of the Court of Appeal in Nottinghamshire County Council v Meikle should be regarded as a decision on its own facts.

Fowlet v Waltham Forest

Working with Cancer

Cancer is now deemed to be a disability under the DDA 1995.

The CIPD, in association with Working with Cancer charity, has produced a superb booklet entitled 'Cancer and working: guidelines for employers, HR and line managers'.

It contains guidance on best practice for employers dealing with employees suffering from cancer, together with information on adjustments that can be made. This is a very worthwhile document for all employers, and for those litigating cases involving employees suffering from cancer.

Download the Guide here

Statutory Dismissal Procedure

The EAT has this morning handed down a decision dealing with two matters relating the statutory dismissal procedure:

• when there is a concession by the employer that the dismissal is automatically unfair because of failure to comply with the procedure, there is no obligation for the tribunal to make findings on the substantive 'ordinary' unfair dismissal case.
• an uplift of 40% is appropriate where a large employer "blatantly failed to comply" with the obligation to send a step 1 letter. The test on appeal is one of perversity, which is a difficult hurdle to overcome.

Metrobus Ltd v Cook

Agency Workers

The Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill has been introduced in the House of Commons. The Bill:

• prohibits direct (but not indirect) discrimination against agency workers, unless objectively justified
• obliges an end user to inform all agency workers provided to him of "any vacancies in his organisation". Bizarrely, this is not limited to suitable vacancies
• allows for Regulations providing for joint liability between agency and end user

Note that this is a Private Member's Bill, so it may have little chance of reaching the statute books.

The Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill

When is a contract not a contract?

The EAT has handed down a useful decision summarising the position as to when a tribunal is entitled to look outside the terms of written documentation to determine the terms of a contract of employment.

HHJ Richardson summarised the principles in Carmichael v National Power as follows:

• First, a Tribunal faced with a document or documents said to be contractual, must decide whether the parties intended the document or documents to be the exclusive record of the terms of their agreement.
• Secondly, this question is a question of fact for the Tribunal.
• Thirdly, if it was the parties’ intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal is generally restricted to consideration of the documents. The meaning of the documents is a question of law, and therefore the question whether the claimant is employed under a contract of service is a question of law.
• Fourthly, if it was not the parties’ intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal will look at other relevant materials to determine the terms of the contract. These may include oral exchanges and conduct.

See paragraphs 39 onwards of Ministry of Defence Dental Services v Kettle.