Case round up

Case round-up by Eversheds 020 7919 4500

Stress and constructive dismissal
Marshall Specialist Vehicles Limited v Osborne, EAT, 30 April 2003

Osborne was a high-level financial director for Marshall Specialist Vehicles
(MSV). As a result of the company getting into difficulties, she and her
colleagues took on extra work and worked long hours – without complaint, and of
her own accord.

Eventually, Osborne resigned because of being overworked, which led to a
nervous breakdown, and successfully claimed constructive dismissal.

The tribunal implied a term into her employment contract that an employer
must not impose on an employee, or acquiesce in their assumption of, a workload
which it is reasonably foreseeable may cause physical or mental injury. MSV had
therefore fundamentally breached this implied term. MSV appealed.

The EAT upheld the appeal. The tribunal had manufactured an implied term
which it then found the employer had breached. A general term is implied in all
employment contracts that the employer should take reasonable care for the
health and safety of its employees.

To succeed in a constructive dismissal case based on a breach of this term,
an employee must:

a) establish that the risk of injury was foreseeable, (b) establish the
employer was in breach of its duty, and (c) establish this breach amounted to a
fundamental breach of the employment contract.

However, in Osborne’s case, there was insufficient evidence of stress to
enable her to succeed under the common law principles which applied in
Sutherland v Hatton case: the harm to Osborne was not reasonably foreseeable,
taking into account such factors as the nature and extent of the employee’s
work, costs and practicality of preventing harm, and the size of the employer.

The tribunal had not considered all the relevant questions, and the case was
remitted back to a fresh tribunal.

Worker on temporary assignment did not transfer
Securiplan v Bademosi, EAT, 9 May 2003

Bademosi worked for Securiplan as a security officer at a site owned by
Cable & Wireless (C&W) for 21 years.

Following an accident at work in July 2000, he was unfit to work until
November. As there was no vacancy for him to return to at C&W, he
reluctantly began working on a temporary basis (expressly agreed at the outset)
at Marylebone Magistrates Court in January 2001.

On 3 December 2001, Bademosi was told he would return to C&W in January
2002. However, on 6 December, while he wasn’t at work, the court contract was
awarded to another employer. The return date to C&W was confirmed by a
letter dated 7 December, but Bademosi didn’t receive it until 13 December.

Meanwhile, Bademosi received a call from his supervisor informing him the
court contract had been terminated. As he had not been allocated any new work,
he resigned on 11 December with immediate effect, and successfully claimed
unfair constructive dismissal and breach of contract by Securiplan.

The tribunal held that Bademosi’s rights had not transferred under TUPE, but
Securiplan appealed.

The EAT dismissed the appeal. Bademosi’s assignment to the court was
expressly agreed to be temporary. He wasn’t assigned to the court contract at
the time of the transfer. His contract didn’t terminate by reason of the
transfer; he would revert to his duties at the C&W site or to other
temporary assignments.

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