Comments are closed. Previous Article Next Article Related posts:No related photos. Case round upOn 1 Apr 2004 in Personnel Today Our resident experts at Pinsents bring you a comprehensiveupdate on all the latest decisions that could affect your organisation, andadvice on what to do about them Harper v Virgin Net Limited, Court of Appeal No damages for lost opportunity to claim unfair dismissal * * * Harper was dismissed 33 days short of one year’s continuousemployment. Her statutory notice period was one week and her contract includeda three-month notice period. Harper successfully claimed wrongful dismissal. The tribunal awarded herdamages for the contractual notice period she had not received and for the lostopportunity to claim unfair dismissal. Had she been given contractual noticeshe would have been able to make such a claim. The tribunal ruled that herdismissal would have been clearly unfair and awarded a full compensatory award.Both the EAT and the Court of Appeal ruled that this approach was wrong. Key pointsThe Court of Appeal ruled that Harper had not lost the opportunity to claimcompensation for unfair dismissal as she never had the right to make such a claim.Her statutory entitlement was to one week’s notice and had she received thisshe would still have fallen short of the qualifying service to claim unfairdismissal. To allow employees to effectively access statutory rights via aclaim for contractual damages would expose courts and tribunals to chaos. What you should do – Include a payment in-lieu of notice clause in contracts to allow you tobring the contract to an immediate end. This provides greater flexibility whenterminating contracts – Remember that if you fail to provide statutory minimum notice this will beadded to the employee’s length of service. Ramsey v Walkers Snack Food, EAT Use of anonymous statements was fair * * * Ramsey and two employees were dismissed on suspicion of stealing moneyinserted into crisp packets as part of a sales promotion. Management invitedwitnesses able to identify those involved in the theft to come forward on ananonymous basis. The informants expressed a desire to remain anonymous. Theapplicants were dismissed for gross misconduct, primarily on the basis ofanonymous written statements. The applicants claimed unfair dismissal, arguing that the manner in whichthe statements were taken, their lack of detail, and the inability to questionwitnesses, rendered the whole disciplinary process unfair. Previous case lawguidance on the use of anonymous statements had not been followed. The tribunaland the EAT held that in the specific circumstances of this case, thedismissals had been fair. Key pointsThe EAT concluded that the tribunal’s ruling that the arrangements foranonymity were not unreasonable. Walkers genuinely and reasonably believed thatno information would be provided other than on a confidential basis. Theinformants would not sign any statement unless it was edited in such a way asto remove any risk of identification. Informants were not willing to be exposedto further questioning by managers during the investigatory and disciplinaryprocess and refused to answer questions raised by the accused employees. What you should do – Remember that using anonymous statements is undesirable and is legitimateonly in exceptional cases – Ordinarily investigators should meet with informants and take detailed statementsto be anonymised later. They should explore carefully the evidence given, lookfor corroboration and investigate why the informant desires anonymity – Managers hearing disciplinary cases should also meet informants to weighup their evidence – Remember that these standards can only be departed from in exceptionalcases. Collins v Royal National Theatre Board, Court of Appeal Failures to make reasonable adjustments unlikely to be justified * * * Collins, a carpenter’s labourer, injured his right hand at work. Herefused surgery on the advice of his GP. His employer set him some controlledtasks to assess his capability and determined that he could not workefficiently or safely with his injury. Collins was dismissed as there was noother job that he could do. Collins successfully claimed disabilitydiscrimination, in particular a breach of the duty to make reasonableadjustments. There had been insufficient attempts to see what adjustments couldhave been made to accommodate his disability. Key pointsThe issue in the Court of Appeal was a technical but important point – canan employer’s failure to make adjustments to accommodate a disabled employee beunreasonable but justified? The DDA prevents two forms of discrimination – less favourable treatment anda failure to make reasonable adjustments. Both forms of discrimination arepermitted when an employer can show justification. For less favourabletreatment, the justification test is easily satisfied. The employer must showthat the treatment concerned was taken on grounds that were ‘material andsubstantial’. If the employer can show that its action was taken on aconsidered basis and fell within the range of reasonable responses to the knownfacts, the treatment will be justified. The justification defence in reasonableadjustment cases is expressed with the same words. The difficulty is that ifthe same text is applied in less favourable treatment cases, the duty to makereasonable adjustments is easily bypassed. Tribunals must assess whether this duty has been complied with byestablishing what is reasonable for the employer to do on the facts of thecase. An employer found to have breached the duty will be found to have behavedunreasonably. The Court of Appeal ruled that any issue considered by the tribunalwhen deciding if the employer’s conduct was unreasonable cannot then be takeninto account as justification. In short, justification has to be based onsomething other than the conduct that has been found to be unreasonable. This decision makes justification of a failure to make reasonableadjustments exceptionally difficult. From 1 October 2004, the justificationdefence will be repealed in such cases, so that the issue will be whether theemployer has failed to take reasonable steps to prevent the disabilityresulting in a substantial disadvantage. What you should do – If a medical condition affects an employee’s ability to do their job,explore all possible adjustments or accommodation that could be made – Ensure you obtain medical advice to assist your assessment – Take the medical position into account when timing your assessment. Herethe employer’s assessment was carried out soon after the injury when theeffects had not settled down. Crossley v Faithful and Gould Holdings Limited, Court of Appeal No duty on employer to protect employee’s financial well-being * * * Crossley was on long-term sick leave and unable to return to work.Under his contract he was a member of the company’s disability insurancescheme. He submitted a claim under the scheme but resigned and took earlyretirement. As a result, he lost his entitlement under the scheme. Crossleyargued that his employer had breached an implied term of his contract to takereasonable care of his economic well-being by failing to warn him that hisletter of resignation would result in his loss of the disability benefits. Heclaimed damages for the lost benefits under the scheme. Key pointsRejecting Crossley’s claim, the Court of Appeal ruled that no such termcould be implied into the contract of employment. It would place an unfair andunreasonable burden on employers. The company was entitled to assume thatCrossley would have realised the implications of his actions or had the meansto find out what they were. What you should do – Ensure the terms of insurance schemes are clearly communicated andavailable to employees – Remember that the position in this case would be different had thedismissal occurred on the employer’s initiative. Case of the month by Linda JonesAgency workers are employed by agency’s clientBrook Street Bureau v Dacas, Court of Appeal Court of Appeal suggests that agency workers are employed by theagency’s client * * * * * Mrs Dacas was an agency worker supplied by an employment agency towork for Wandsworth Council as a cleaner. The council became dissatisfied withher performance and the agency terminated her assignment. Dacas claimed unfairdismissal against the council and the agency. To succeed, she had to show thatone of the two respondents had been her employer. An employment tribunal ruled that the council had no direct contract withher and so was not the employer. The contract between Dacas and the employmentagency was not a contract of employment as it lacked the necessary mutuality ofobligation and the agency had no direct control over the work carried out. Dacas appealed the decision relating to her claim against the employmentagency, but not the finding in relation to the council. The Court of Appealconcluded that the tribunal correctly found that no employment relationshipexisted with the agency. However, two of the three judges expressed the viewthat, on the facts, the council was the true employer. Key pointsNumerous cases have examined the employment status of agency staff, butthese have essentially been concerned with the relationship between agency andworker. In some cases, an employment relationship between agency and worker hasbeen established and so indicated that the risk of employment liabilities laysquarely with the agency. This case shatters those assumptions. First, the Court of Appeal rejectedthe possibility of an employment contract between Dacas and the agency,accepting the arguments that the agency is not obliged to provide work and theworker is not obliged to do any work offered and it is the client who hasday-to-day control over the worker. Second, the Court of Appeal ruled that the absence of a written and expresscontract between worker and end-user is not the determining factor as far as aclaim against the end-user is concerned. Tribunals should examine whether thereis an implied contract and whether that contract is a contract of employment.The end user’s day-to-day control over the work carried out will increase therisk of employment status being established by this route. There is now a real danger that those using agency staff are exposed to arange of employment liabilities, in particular claims for unfair dismissal. Theend-user will follow no procedure to terminate an assignment, on the assumptionthat doing so is unnecessary and that following any procedure could indicatethe existence of an employment relationship. This approach will result inunfair dismissal if the end-user is the employer. That position will beexacerbated under the new dismissal procedures introduced with effect from 1October 2004 where a failure to follow the statutory procedure will result inautomatic unfair dismissal and increased compensation. What you should do – If you use agency workers, you should review your arrangements,particularly for terminating assignments – Review your contractual arrangements with agencies to reduce risk, forexample through indemnities – Where agency staff have worked with you for more than a year, they may beable to claim unfair dismissal. Consider whether you need to use agency stafffor such long periods.