Summer holiday season is at last upon us and the Pharos Legal team hope that wherever you spend your summer, you get a chance to unwind and recharge your batteries.
Employment law waits for no man (or woman) however and we wanted to alert you to some of the more interesting recent case-law that we’ve become aware of. Please do let us know if you’d like more information about any of the cases – or if you have any employment law or HR-related queries.
Constructive dismissal – correct handling of grievances can avert a constructive unfair dismissal claim
Employers will be pleased to hear that if they uphold an employee's grievance about treatment by his immediate manager, this can prevent the employee relying on the treatment to show a breach of the implied term of trust and confidence.In Assamoi v Spirit Pub Company the employee worked as a head chef and raised a grievance about how he was being treated by his immediate manager. This was upheld by more senior managers who took steps to rectify the situation.
The Employment Appeal Tribunal agreed that the immediate manager had behaved badly towards the employee but went on to find that this did not, by itself, amount to a breach of the implied term of trust and confidence. The actions of the more senior managers had prevented the matter escalating into a state of affairs that would have justified the employee leaving and successfully claiming he was constructively dismissed.
There is a distinction, of course, between preventing matters escalating into a breach of the implied term of mutual trust and confidence and trying to cure a breach which has already taken place. Once a breach has taken place it cannot be cured.
Long term sickness and carry-over of annual leave – no request for leave or carry-over necessary
In NHS Leeds v Larner the Court of Appeal determined that a worker, who has not taken paid annual leave in the relevant year due to sickness, can claim a payment in lieu on termination of employment without having made any prior request to carry the leave forward.Mrs Larner was absent on sick leave for the whole of the leave year 2009/10. During that year she neither took paid annual leave nor requested NHS Leeds to carry it forward to the next year (2010/11). Early on in that year she was dismissed. NHS Leeds refused to pay her for the leave not taken by her in 2009/10. She claimed (and was granted) a payment in lieu of the untaken leave. This case does seem to flow logically from earlier cases on this topic (Stringer v Revenue & Customs (Case C-520-06); Schultz-Hoff v Deutsche Rentenversicherung Bund (Case C - 350/6)) and also relied heavily on the European Court of Justice case of Georg Neidel v Stadt Frankfurt am Main (Case C-337/10) which supported the argument that Article 7 of the Working Time Directive does not impose any requirement of a prior leave request having been made.
Employment and worker status – more traps for the unwary
This area of law continues to catch businesses out and two recent cases highlight the dangers of failing to consider status issues properly.The Court of Appeal in The Hospital Medical Group Limited v Westwood has held that a GP carrying out hair restoration procedures for a private clinic was a 'worker' for the purposes of employment legislation.
Dr Colin Westwood is a GP with his own practice. He was approached by Hospital Medical Group Ltd (HMG) to undertake hair restoration procedures on its behalf. HMG engaged surgeons with practices in their own right and none were engaged on contracts of employment. Mr Westwood's engagement was in due course terminated. An employment tribunal ruled he was not an employee but found he was a worker under section 230 (3)(b) of the Employment Right Act 1996 which enabled his claims relating to unlawful deductions from wages and accrued holiday pay to be heard.
HMG's objected; their principal argument was that the definition of worker in s 230(3)(b) excludes a person who provides services to a 'client or customer' of any profession or business carried on by him.
The Court of Appeal found that it was wrong to regard HMG as Dr Westwood's 'client or customer'. HMG was not just another purchaser of Dr Westwood's medical skills. He contracted specifically and exclusively to carry out hair restoration surgery on behalf of HMG and was referred to as 'one of our surgeons'. He was clearly an integral part of HMG's undertaking and providing services even though he was in business on his own account.
Business often believe that by engaging a person under a succession of individual contracts that person will not attract the protection of employee status. That will not necessarily be the case, as we were reminded in Drake v Ipsos Mori UK Ltd.
The Claimant worked on an 'assignment by assignment' basis for the Respondent from 2 February 2005 until 5 November 2010. He claimed that each individual assignment was a contract of employment so giving him sufficient continuity of service to bring a claim for unfair dismissal. The Respondent's disagreed. They conceded the Claimant was a worker for the purposes of employment legislation but argued he was not an employee.
The EAT held that there was a contract in place and sufficient mutuality whilst the Claimant was actually undertaking an assignment for the Respondent. Contrary to the first instance decision at the tribunal, the fact that the assignment could be brought to an end was found not to mean that there was no contract in existence while the assignment was continuing.
