On appealOn 3 Jul 2001 in Personnel Today Previous Article Next Article Comments are closed. Continuing a regular series spelling out the implications of important caseswhich have been heard recently in the appeal courts. Sarah Lamont looks at theissuesCasual workers Stevedoring & Haulage Services v Fuller, CA 9.5.01 Fuller accepted casual employment as a docker for SHS in January 1996. Theoffer letter stated that there was no obligation on SHS to provide work, nor onFuller to accept it. Until 1999 Fuller worked for SHS under its control and ona reasonably regular basis. He then applied to an employment tribunal for a writtenstatement of particulars of what he alleged to be his employment with thecompany. The tribunal held Fuller was an employee under a global contract ofemployment. This was upheld by the EAT which said that, despite the expressterms in the contract documentation to the effect that there was no obligationto offer or accept work, the conduct of the parties implied different termsinto the contract which could override these express terms. The implied terms reflected the reality of the agreement between the partiesand indicated the company would offer a reasonable amount of work to Fuller andthat he would make himself available for work on at least a reasonable numberof occasions. The Court of Appeal disagreed. While the parties’ intentions can be inferredfrom their conduct, the implied obligation to offer and accept a reasonableamount of work could not be incorporated into a contract where it would becontrary to express terms in that contract. Further, as global contract ofemployment cannot exist unless there is an irreducible minimum of obligation tooffer and accept work between the parties, and no such term could be implied inFuller’s case, the appeal was successful. Sex discrimination Allonby v Accrington and Rossendale College, CA 23.3.01 Allonby was employed as a part-time lecturer by the college from 1990 to1996 paid on an hourly rate. Following a change in legislation requiring thecollege to pay part-time lecturers equivalent benefits to full-time lecturers,the college stopped renewing part-time lecturers’ contracts of employment andinstead, took them on as sub-contractors, via an agency (ELS) to save money. Allonby claimed that the dismissal was indirectly discriminatory on groundsof sex. She also claimed that: the college had discriminated against herfollowing her termination by denying her benefits available to salariedlecturers under s9 Sex Discrimination Act; that ELS was required to pay her prorata equivalent benefits to a male full-time lecturer at the college; and (againstthe Secretary of State) that the fact that, as a contract worker she wasexcluded from the Teachers’ Pension Scheme, was unlawful discriminatorytreatment. The employment tribunal and the EAT held that her dismissal wasindirect sex discriminatory but was objectively justifiable and that the restof her claims failed. The Court of Appeal agreed that the dismissal was discriminatory. Thecollege had applied a requirement for continued employment that the employeemust be employed either on a full-time basis or under a contract that conferredproportionate benefits to a full-time contract (that is, salaried as opposed tohourly paid employment). Therefore hourly paid employees had been disadvantagedand there were more female hourly paid staff than male. However, the tribunal should not have accepted the college’s justificationfor the discrimination, so that claim was remitted for a further hearing. In relation to the other claims, the Court of Appeal held that s9 SDA(requiring equal treatment) can apply as between a contract worker and anemployee (not just as between employees) so long as they are working for thesame principal. The case was therefore remitted to see if in fact there was a breach. Theclaim against ELS raised the issue of whether Allonby, as an employee of ELS,could compare herself with a male comparator employed by the college, giventhat the Equal Pay Act requires comparators to be in the “sameemployment”. The court referred was necessary to the European Court on the basis thatArticle 141 of the Treaty of Rome does not contain such a constraint over thecomparator’s employment. The court also referred the question of whetherArticle 141 would allow Allonby to claim access to the Teachers’ PensionScheme. Frustration of employment contract Collins v Secretary of State for Trade and Industry, EAT 16.5.01(1460/99) Collins worked for a transport company. In 1996 he was injured at work andwas absent thereafter, but remained on the company’s books until the beginningof 1999, at which stage it asked him if he wanted to take a redundancy payment.Collins chose to stay on their books instead but shortly afterwards the companywent into receivership. Collins applied for a redundancy payment from theSecretary of State but the payment was rejected on the basis that Collins’contract of employment had been frustrated by his long-term illness so that hewas not an employee. Both the employment tribunal and EAT held that the contract had beenfrustrated. Using the definition of some reasonably unforeseeable event”which makes the contract impossible or unlawful to perform…”. Theeffect of frustration is that the contract terminates without a dismissal bythe employer or a resignation by the employee. This finding was notwithstandingthat both parties had treated the contract as continuing. Pension compensation Clancy v Cannock Chase Technical College, 2001, IRLR 331 Clancy was employed as a senior lecturer until he was made redundant. Heclaimed unfair dismissal and the employment tribunal found in his favour.Clancy claimed, however, that the compensation awarded failed properly to takeinto account his loss of pension and he appealed. The EAT upheld his appeal. The tribunal had computed the figure by referenceonly to the employer’s weekly contributions, on the basis of the guidelinesused by tribunals (Industrial Tribunals – compensation for loss of pensionrights). The EAT suggested the guidelines needed updating and held that in thepresent case the tribunal had been wrong in applying the guidelines to Clancy’spension scheme because it gave a figure which fell far short of compensatingfor his loss. Sarah Lamont is a partner at Bevan Ashford Related posts:No related photos.