Employment Law Bulletin - Issue 157 - 30 October 2013

Wednesday 30 October 2013

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Employment Law News

Judicial review of Tribunal fees

The High Court's decision on the trade union Unison's challenge to the Government's introduction of employment tribunal fees is expected in November. To read more, click here.

Grangemouth workers facing further attacks

Workers at the Grangemouth oil refinery have been told to expect redundancies and cuts to their pensions, despite last week's deal with the union Unite. To read more, click here.

Employment Case Law


Employee status

Troutbeck SA v White & Anor [2013] EWCA Civ 1171

In deciding whether a claimant is an employee, the test to be applied is whether she worked or works under a contract of service or apprenticeship (section 230(2) Employment Rights Act 1996). A contract of service is defined in the case law as a contract of mutual obligation, with the employee being required to perform the service personally and the employer having an element of control of the work (Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 CA). Can there be an employment contract if the worker is not subject to the employer's day-to-day control? The Court of Appeal has held that there can be, in a case concerning two farmworkers governed by what the employer considered a commercial, not an employment contract, although the agreement provided for annual leave and referred to itself as an "employment agreement". Key to the Employment Tribunal's judgment was its finding of fact that the employers did not control the work done on a day-to-day basis. In the leading judgment of Sir John Mummery, the Court of Appeal held that, looking at the relationship in the round, the appellant had provided work to the claimants, at a workplace of the employer's designation, and paid them wages, and therefore that, "the claimants were not operating as independent contractors". For the full text of the judgment, click here.


Reasonable adjustment / frustration of contract

Warner v Armfield Retail & Leisure Ltd [2013] EAT 0376/12

As a general principle of common law, where any contract ends through the intervention of external circumstances, without either party being at fault, the contract is impossible to perform and each is stopped from suing for the breach. This principle can be applied to employment contracts, although the Tribunal should "guard against too easy an application of the doctrine, more especially when ... the true situation may be a dismissal by reason of disability" (Williams v Watsons Luxury Coaches [1990] IRLR 164 at para 20). Does the statutory obligation to make reasonable adjustments (section 20 Equality Act 2010) have priority over the operation of the doctrine of frustration? The Employment Appeal Tribunal (EAT) has held that it does, in a case concerning a small business with just four employees, whose site manager suffered a severe stroke and was made virtually unable to walk. After a period when they had not heard from the claimant, but they were aware that his recovery was delayed longer than hoped, the respondent simply sent him his P45 without further enquiry. In the words of HHJ Richardson: "In the case of a disabled person, before the doctrine of frustration can apply there is an additional factor which the Tribunal must consider over and above the factors already identified in the authorities - namely whether the employer is in breach of a duty to make reasonable adjustments" (at para 46). The Employment Tribunal did not consider at all whether the respondent treated the claimant unfavourably by failing to carry out any form of capability procedure, however basic, and by dismissing him without any procedure. The EAT held that the matter should be remitted to the Tribunal to properly consider these points. For the full text of the judgment, click here.

Zero hours contracts

Borrer v Cardinal Security Ltd [2013] EAT 0416/12

In a case where an employee's written contract did not specify a minimum number of hours, but recorded that "Your working hours will be specified by your line manager", and where the employee was required to check with his employer each week to ascertain whether there was any work for him to do, was the claimant employed on a zero hours contract, so that the employer could lawfully stop offering him work and stop paying him without the claimant being able to resign and sue for constructive unfair dismissal? The EAT held that these circumstances were not enough to outweigh the evidence of the claimant that he had been working at a regular 48 hours per week, prior to his resignation. In the words of Supperstone J: "the two matters that the Tribunal considered to be interrelated ... neither individually nor cumulatively lead to the conclusion that the claimant had no guaranteed hours of work ... In our judgment, the true agreement between the parties, considering the evidence as a whole and by reference to the specific findings made by the Tribunal that we have referred to, is that the claimant did have a contractual entitlement to work 48 hours each week." For the full text of the judgment, click here.

Notices & coming events

"Tribunals: the Industrial Jury is out"
Wednesday 30 October, 18:00 - 20:00
The Prince's Room in Middle Temple
The Employment Law Bar Association (ILS) will be hosting a lecture by His Honour Judge McMullen QC. For more information, click here.

TUPE: The New Regulations
Tuesday 28 November, 18:30 - 20:00
1.5 CPD Hours
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
For more information, click here.

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