Employees and workers, Equality

Court of Appeal - March 2001 Redundancy selection of fixed-term contract employees can be unlawful indirect sex discrimination Facts Whiffen was employed as a part-time school teacher of modern languages. For five years, she worked under a series of fixed-term contracts from one academic year to the next. When redundancies became necessary, the school governors followed a selection policy under which staff employed on fixed-term contracts would be dismissed first, in other words not…

Terms and conditions

Court of Appeal - January 2001 Written particulars issued after employment started were not binding Facts When Lovett was interviewed by the local authority for the post of mechanical engineer, the terms and conditions of employment were discussed and a verbal offer was made, which Lovett accepted. The terms discussed were subsequently confirmed in writing. The terms included a statement that progression beyond salary scale 6 was conditional on "gaining appropriate qualifications and…

Terms and conditions

High Court - September 2000 Employer must not exercise discretion irrationally or perversely Facts The company operated an annual bonus scheme which was stated to be discretionary. During his second year of employment, Clark was dismissed, allegedly for poor time-keeping, lack of attendance at management meetings and unsatisfactory appearance (although none of these matters had been brought to his attention). He was not awarded any bonus for that year despite the fact that he had earned…

Tupe

Employment Appeal Tribunal - July 2000 Can terms and conditions be altered once a certain period of time has passed since the transfer? Facts Taylor worked as a company administrator for the South Eastern Train Company, part of British Rail. British Rail was privatised and the part that Taylor worked for was sold to Connex South Eastern Ltd in 1996. In 1997, he was offered a new contract as deputy company secretary, but revised terms and conditions were never agreed between the parties…

Equality

Employment Appeal Tribunal - June 2000 Refusal of a request to work from home may amount to indirect sex discrimination Facts Lockwood, an account executive/technician, had taken maternity leave and when she returned to work, her mother undertook to care for the baby. When, however, her mother became ill, she was unable to continue with the childcare. Lockwood put forward various suggestions to her employer, one of which was to allow her to work at home, and she offered to purchase any…

Equality

Court of Appeal - March 2000 No fair trial where hearing was not held in public Facts All employment tribunal cases are required to be held in public, unless there is a matter of national security or children are involved in the case.   Storer took a claim to the employment tribunal, and on the day that his case was due to be heard there were twelve tribunal rooms in operation. His case was listed as a "floater" - a case that would be heard when one of the tribunals became free to…

Employees and workers, Equality

European Court of Justice - February 2000 Refusal to appoint a pregnant woman to a post on health and safety grounds was direct sex discrimination Facts Mahlburg, who worked on a fixed-term contract as a nurse, applied for a permanent job in an operating theatre. She was in the early stages of pregnancy at the time.   Although Mahlburg had the necessary qualifications and experience to be appointed to the post, her application was rejected because German law prohibited pregnant women…

Family friendly and flexible working rights

Employment Appeal Tribunal - January 2000 Does suitable alternative employment for a pregnant woman need to include allowances? Facts Moore and Botterill were both pursers with British Airways. They became pregnant and, in accordance with their contracts of employment, could not continue with flying duties after their 16th week of pregnancy. They were reallocated to ground-based posts. Their basic pay remained the same, but they were no longer paid flying allowances. The employer did…

Termination

Employment Appeal Tribunal - December 1999 Can customer complaints be referred to in a reference if the employee is not aware of them? Facts During Harris’ employment at TSB there had been seventeen customer complaints about her. She had not been made aware of these complaints. Harris applied for a job with the Prudential, who sought a reference from the TSB. In the reference, mention was made of the 17 complaints against Harris. At this time four had been upheld, and a further eight…

Recruitment and selection, Equality

House of Lords Discriminator’s conscious motivation not a necessary ingredient of unlawful victimisation   Nagarajan had previously brought a number of race discrimination complaints against his employer, London Regional Transport (LRT) which had been largely unsuccessful. When he applied internally for a vacant post, he was rejected. One of the members of the interview panel had given him only one point out of 10 for articulateness and noted that he was "very anti-management". The only…

Employees and workers

House of Lords - June 1999 Lack of obligation to offer or accept work meant individuals were not employees Facts The two claimants were engaged on a ’casual as required basis‘ and trained by the employer to fulfil the role of tour guides.   The documentation issued to them did not contain any information indicating how much work they would be offered, nor any details of matters such as notice periods, sick pay entitlement, or disciplinary or grievance procedures.   They were,…

Equality , Business principles

Employment Appeal Tribunal - May 1999 Failure to conduct a pregnancy risk assessment was direct sex discrimination   Day worked as a counter assistant in a sandwich shop. She became pregnant and became so nauseous that she was unable to continue at work.   When her employer ceased to pay her she claimed unfair constructive dismissal and sex discrimination. The employer had not carried out a risk assessment which she argued would have resulted in her being suspended from work on full pay…

Terms and conditions

Employment Appeal Tribunal - March 1999 No continuity of service because of gaps between fixed-term contracts Facts This case was centred on three employees who had worked at a US Air Force base on a series of fixed-term contracts. At the end of each contract, there was a short break in service after which a new contract of employment was issued. When each 'new' contract was issued, they returned to the same job with the same tools and equipment. EAT However, the breaks in…

Business principles

Northern Ireland High Court - March 1999 What is a night worker? Facts The claimant was asked to move to a new shift pattern which required her to work night shifts one week in every three. In the weeks when she worked nights, three of the hours that she worked fell during the period defined as 'night work'. She started to suffer some health problems, which she linked to the shift pattern, and hence she asked to be moved to different shifts.   Burns brought a claim to court arguing…

Equality

Employment Appeal Tribunal - February 1999 Is a claim for sexual harassment valid where the employee did not formally complain? Facts Stedman was employed as a secretary for a year, during which time she was subjected to sexually provocative remarks and suggestive behaviour by Reed, the company’s marketing manager. She found this behaviour upsetting and made it clear to Reed that she found it unacceptable, although she did not make any formal complaint. Stedman eventually resigned on…

Employee relations

Employment Appeal Tribunal - 1999 Can an employer’s policy form part of a collective agreement? Facts Brown’s contract of employment provided that variations in his terms and conditions would result from “negotiations and agreements with a specified union or unions”. The contents of relevant collective bargaining agreements were incorporated into local authority employees’ contracts of employment, including Brown’s.   He applied for regrading. The local authority had a policy which…

Equality

House of Lords - December 1998 Common terms and conditions can include terms that vary amongst themselves Facts Leverton worked as a nursery nurse and she brought an equal pay claim using clerical staff employed by the same local authority as her comparators. However, these clerical staff did not work at the same location as Leverton. Leverton argued that she could use them as comparators because she was working under the same national terms and conditions as the clerical workers (this…

Termination

Court of Appeal - October 1998 Reference must be true, accurate and fair and must not give a misleading impression Facts Bartholomew had been suspended on allegations of financial irregularities. Following a claim for race discrimination, the disciplinary proceedings against him were suspended, the race case was withdrawn and he was allowed to take voluntary severance.   When Bartholomew applied for a new job elsewhere, the local authority provided a reference to the prospective…

Equality

 Court of Appeal - 2000 Equal pay claim cannot be for higher pay than that of comparator Facts Evesham and a number of colleagues who were speech therapists had already succeeded in a claim for equal pay as against a male clinical psychologist.   However, she had been in her job six years longer than her male comparator and so had benefited from six years of annual increments to her salary. Her comparator on the other hand, was in his first year of employment and was therefore on the…

Equality

House of Lords - May 1988 Each element of pay package stands to be compared individually Facts Hayward was a cook employed in a shipyard. She took an equal pay claim, arguing that her work was of equal value to that of painters, installation engineers and joiners who worked on the same site.   Hayward's base pay and overtime rates were lower than those of the men she cited as comparators. However, she was entitled to free meals, and she had better sickness benefits and a better…

Equality

Employment Appeal Tribunal - 1998 Employer liable for sexual harassment at work-related social event Facts Stubbs, a police officer, brought complaints of sexual harassment and sex discrimination to tribunal after she had experienced unwanted sexual attentions, malicious behaviour (when she made it clear the attentions were unwanted), sexually disparaging remarks, an unfairly poor appraisal and deliberate exclusion from an operation at the hands of her line manager. This type of conduct…

Employees and workers

Court of Appeal No contract of employment existed during periods when the individual was not working - December 1997 Facts Clark was a nurse and was included in a 'bank' of nurses retained by the employer.   Her agreement with the employer stated that she would be employed on a day-to-day basis and that there was no guarantee that work would be provided to suit her personal requirements. Nevertheless when she did work, she was subject to the employer's disciplinary and grievance…

Terms and conditions

Employment Appeal Tribunal - March 1997 Withdrawal of job offer amounts to a termination and breach of contract Facts A job offer was made in writing to Sarker which she accepted. The contract said that either party could terminate it by giving two months’ notice. A few days before Sarker started work, the offer was withdrawn. Sarker brought a claim for breach of contract in the employment tribunal. Tribunal The claim was rejected on the basis that because the employment had never…

Employee relations

Court of Appeal - 1997 Inducement to breach a contract Facts TimePlan, a recruitment agency for teachers, had agreed to place a series of advertisements in a magazine run by a teachers’ union in New Zealand. A dispute arose with the NUT over whether the agency paid the teachers which they supplied at a rate lower than the statutory pay rate.   The NUT contacted the New Zealand union to inform it of the ongoing dispute and suggesting that the union “might consider it inappropriate to…

Equality

Employment Appeal Tribunal - October 1996 Are employers responsible for discrimination by a third party? Facts In this case, two black female waitresses were working at a private function being held at the hotel where they were employed. Bernard Manning, a comedian (who was not employed by the hotel) was performing at the function, and during his after dinner act he made a number of highly offensive sexist and racist jokes. Some of these jokes were directed specifically at the two…

Family friendly and flexible working rights

Court of Justice of the European Union - February 1996 Employees on maternity leave not entitled to full pay Facts The 17 claimants were employed by various health boards in Northern Ireland. During their maternity leave - in accordance with the terms of a collective agreement - they were paid full pay for four weeks, 90 percent of full pay for the next two weeks, and half pay for the following 12 weeks. This was more generous than statutory maternity pay at the time. Agreements that…

Employee relations

Employment Appeal Tribunal - 1995 Employee’s dismissal was on account of her trade union membership Facts Armitage was dismissed after she asked her local union official to intervene with her employer to resolve a problem over its failure to provide her with a written statement of terms and conditions of employment. EAT Upholding an employment tribunal’s decision that she had been dismissed primarily by reason of her union membership, the EAT stated: "The activities of a trade…

Employee relations

Court of Appeal - 1995 Ballot still valid despite additional union members Facts RMT, the rail union, held a ballot of its members and there was a clear majority in favour of strike action (over a number of one and two day periods). After the ballot, a further 20 members joined the trade union, which London Underground was prepared to accept as making no difference to the validity of the earlier ballot. However, around one month later, notice was given of further industrial action and…

Equality

Court of Justice of the European Union - December 1995 Enhanced overtime pay need not be paid to part-time employees until after they have worked full-time hours Facts The employer operated a policy in line with the terms of a collective agreement that payment for overtime hours worked by part-time employees would only be made at an enhanced rate after they had worked the equivalent of full-time hours.   A group of part-timers claimed that this policy was indirectly discriminatory on…

Family friendly and flexible working rights , Equality

Court of Justice of the European Union - July 1994 Dismissal of employee covering for maternity leave was direct discrimination Facts Webb was recruited as a replacement for another employee who was on maternity leave, but it was intended that she would be kept on permanently once the other employee returned to work. After two weeks in the job, she disclosed that she was pregnant. She was then dismissed. The case was referred to the Court of Justice of the European Union (CJEU) to…