Agency worker wins sex claim

A contract worker refused her post back after maternity leave successfully
claims discrimination. plus cases on equal pay, constructive dismissal, injury
to feelings awards, sex discrimination, establishing dismissal, disciplinary
action after lapse of contract, Tupe and race discrimination

Discrimination against contract worker

Patefield v Belfast City Council
IDS Brief 670, Court of Appeal Northern Ireland

Patefield, an agency contract worker, was placed with the council, "the
principal", in 1995. In September 1997 she told the council she was
pregnant and intended to work until March 1998. Because she was not its
employee, the council refused to confirm that Patefield could return to her post
after maternity leave. The council then transferred a permanent employee to
replace her. Patefield was offered another position on less favourable terms
when her maternity leave ended.

She brought a successful sex discrimination claim. The tribunal accepted
that the council could have lawfully replaced Patefield with a permanent
employee at any time while she was working, but held that it had subjected her
to a detriment by not allowing her back to her old job after taking maternity
leave. A significant factor was that Patefield was the longest-serving member
of staff in her department by March 1998 and, but for becoming pregnant, she
would have remained in her post indefinitely. The council’s subsequent appeal
was dismissed.

When does time start to run?

Young v National Power
Unreported, November 2000, Court of Appeal

Between 1991 and May 1995, Young worked in the audit department as a
"value for money" (VFM) analyst. She was then seconded to another
department until her redundancy in October 1996. In April 1997, she brought an
equal pay claim on the basis that her VFM work was of equal value to that of
certain men working in the audit department. At a preliminary hearing, the
tribunal struck out Young’s claim on the basis that it was out of time. As the
Equal Pay Act provided that claims had to be brought within six months of the
termination of employment and Young’s employment as a VFM analyst had ended in
May 1995, the limitation period had expired in November 1995.

Young successfully appealed to the EAT and National Power appealed to the
Court of Appeal. It held that the limitation period related to and ran from the
termination of the contract of employment rather than the actual job upon which
the equal pay claim was based. No new contracts had been entered into in 1995
when Young ended the VFM work. She had been engaged throughout on one contract

Delayed resignation did not prejudice claim

Abbey National v Robinson
Unreported November 2000 EAT

Robinson made a formal complaint about her manager after being bullied by
him for about a year. He was subsequently disciplined and Robinson was told he
would be transferred to another role so she would not have to work with him. At
a meeting in August 1997 Abbey National indicated the manager would not be
transferred after all and offered Robinson alternative employment which she
declined. In July 1998 Robinson resigned and brought a successful constructive
dismissal claim. The tribunal found that Robinson resigned because of the
cumulative effect of Abbey National’s treatment and conduct in the months
following the August meeting. Abbey National unsuccessfully appealed arguing
the tribunal had misdirected itself by disregarding the fact the resignation
took place almost a year after the relevant breach of contract – the failure to
transfer the manager in 1997.

The EAT held the tribunal was correct to consider the entire period from the
time of the breach until the resignation. Further, a breakdown in trust and
confidence could be established by a course of conduct and not simply by a
single event.

Two awards for injury to feelings appropriate

Roselec v Cashmore and Anystaff Recruitment
EOR Discrimination Digest 45 EAT

Cashmore, an electrician, was registered with Anystaff but its client,
Roselec, refused to interview her because it felt electrical work was
inappropriate for a woman. Cashmore brought successful sex discrimination
claims against both companies. The tribunal held there were two acts of
discrimination, one by Roselec when it refused to interview Cashmore and
another by Anystaff when it knowingly aided the commission of an unlawful act
by Roselec. Further, the tribunal found that Anystaff had prevented Cashmore
from finding out the real reason for being refused employment.

The tribunal awarded £3,000 compensation for injury to feelings against both
Roselec and Anystaff.

On appeal, the EAT rejected the argument that Cashmore had suffered injury
to feelings only once and that the £3,000 should be shared by the two
companies. It held that even though the discrimination arose from a single
episode there were different areas of injury: Roselec’s refusal to interview
Cashmore injured her feelings as did the possibility that Cashmore’s
opportunities of finding work through Anystaff were inhibited. Separate awards
were appropriate.

Consensual termination or dismissal

Cole v London Borough of Hackney
IDS Brief 674 EAT

Cole’s job ceased to exist following a reorganisation. Her options were
either to take up a new position if there was a comparable job available (which
there was not) or to apply for other vacant posts. She could also opt for a
severance package. Cole was told she was not likely to be successful at an
interview for a vacant post but the council omitted to inform her that she had
priority rights in that regard. Believing any application for a vacant position
would be unsuccessful, Cole asked to take voluntary redundancy and the council
agreed. Cole then complained to the tribunal that she had been unfairly
selected for redundancy and unfairly dismissed. The tribunal held there was no
dismissal but a mutual termination of the contract.

Cole successfully appealed to the EAT which held that but for the council’s
decision to reorganise, Cole would not have applied for the severance payment.
There was no consensual termination, rather this was a dismissal by reason of

Lapse of employment contract irrelevant

Reddy v Isle of Wight Healthcare NHS Trust ex Parte Reddy
Unreported, December 2000, High Court

Reddy was employed as a locum consultant radiologist. After allegations of
sexual harassment were made against him he was asked to attend a formal
disciplinary hearing but his contract with the trust lapsed before that date
and Reddy refused to attend the hearing because the trust’s disciplinary policy
applied only to its employees during the course of their employment. The
hearing went ahead in Reddy’s absence and the allegations were upheld. Reddy
unsuccessfully sought a judicial review of the decision.

The court held that although the disciplinary sanctions could only be
imposed during the contract, disciplinary proceedings could be invoked when the
contract had ceased to exist. In this case it was in the public interest that
the disciplinary hearing be pursued.

What constitutes a business transfer?

Cheesman and others v R Brewer Contracts
Unreported November 2000 EAT

In 1998 Brewer took over the contract to maintain Teignbridge Council’s
rented properties from Onyx. Brewer did not take on any of the staff. No
tangible or intangible assets passed directly from Onyx to Brewer and none
passed indirectly via the council. Cheesman argued this was a Tupe transfer and
claimed unfair dismissal and redundancy pay. The tribunal held that there had
been no transfer.

On appeal, the EAT held that the tribunal failed to take into account the
existing Tupe case law and the criteria laid down by the European Court of
Justice. It failed to look at things "in the round" and omitted to
consider relevant facts relating to the transaction. In particular, the
tribunal failed to determine whether the undertaking had continued and retained
its identity following the transaction, the approach taken by the Court of
Appeal in 1999 in ECM v Cox. The matter was remitted back to the tribunal.

Disciplinary investigation was discriminatory

Virdi v The Commission of the Police of the Metropolis
EOR Discrimination Digest No 45 Employment Tribunal

Virdi, an Asian police officer, was suspected of sending racist hate mail to
black colleagues and himself. A white female officer, Bachelor, was also
suspected and informally interviewed. Virdi however was covertly taped at a
meeting unrelated to the incident in case he made any admissions. He was then
arrested, his house was searched by a specialist search team and he was
eventually suspended. He brought a successful race discrimination claim.

The tribunal found that Virdi had not sent the racist letters and taking
Bachelor as the comparator held that Virdi had been treated differently and
detrimentally; unlike Bachelor he was not interviewed informally; there was an
attempt to entrap him in a taped interview; his house was searched; and he was
arrested and suspended from duty.

Virdi was awarded a record £100,000 for injury to feelings, for
"serious loss of reputation", £25,000 aggravated damages and almost
£25,000 interest.

Note: Virdi was dismissed from the Metropolitan Police in March and his
unfair dismissal claim will be heard this year.

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