Employee can delegate services

Being able to arrange a replacement in limited circumstances did not mean a
sports instructor was self-employed.  This
month we look at constructive dismissal, disability discrimination and
psychiatric injury, plus, is an employer liable for discrimination when the
incident took place outside the course of employment

Contractual right to delegate personal services
MacFarlane & another v Glasgow City Council
IDS Brief 678, EAT

MacFarlane was a sports instructor. Initially, she was responsible for her
own tax and national insurance contributions but when she started working
longer hours the council made PAYE deductions. Although MacFarlane was engaged
to teach sessions at specific times she was only paid for the sessions actually
worked. If she was unable to work, she could arrange for a replacement
instructor from the council’s approved list who would then be paid by the
council direct.

MacFarlane was not entitled to holiday or sick pay nor did she enter into
any written contract with the council, although she received its standard
letter relating to the terms upon which instructors were engaged. The council
issued new terms and classified the instructors as self-employed. MacFarlane
resigned and claimed she had been constructively and unfairly dismissed.

At a preliminary hearing, the tribunal held MacFarlane was self-employed
because an essential element of an employment contract, namely the obligation
of "personal service" was lacking. MacFarlane successfully appealed.
The EAT held MacFarlane’s right to arrange a replacement in limited
circumstances was not incompatible with a contract of employment.

Failure to make reasonable adjustments
Fu v London Borough of Camden
Unreported, January 2001, EAT

Following an accident at work in 1993 Fu, a housing officer, could only walk
with the aid of a walking stick. She had another accident and was off work for
a year. When her condition deteriorated, she was provided with a special chair.
She subsequently suffered another injury and was on sick leave from the summer
of 1997. In May 1998 the council offered her ill-health retirement or dismissal
and she accepted the former. Her tribunal claim for disability discrimination
was unsuccessful. The tribunal held the council was justified in offering
ill-health retirement because on the medical evidence adduced, Fu was permanently
incapable of performing her contract even if the requirement to make home
visits was removed.

The EAT allowed Fu’s appeal. The tribunal had failed to consider whether the
council could have made reasonable adjustments to retain Fu in some other capacity
or to make any adjustments before offering dismissal. Accordingly Fu had
suffered from pre dismissal discrimination pursuant to section 5(2) of the
Disability Discrimination Act.

No "constructive dismissal" in disability claims
Commissioner of Police of the Metropolis v Harley
Unreported, February 2001, EAT

Harley had suffered from bulimia nervosa for a number of years. Disciplinary
proceedings were commenced against her and she was formally disciplined. She
appealed against that decision and wrote to her manager stating that unless
there was a satisfactory outcome to her appeal she would consider her
employment to be terminated.

Notwithstanding her letter, Harley resigned before the appeal was
determined. She brought a successful disability discrimination claim on the
basis that she had been constructively dismissed and this constituted a
"dismissal" within the meaning of Section 4 (2) of the Disability
Discrimination Act 1995.

The commissioner successfully appealed. A constructive dismissal arises when
an employee resigns in response to a repudiatory breach of contract by the
employer. Whilst the definition of "dismissal" in other
discrimination legislation had been construed or amended to include
constructive dismissal this is not the case with the DDA. "Dismissal"
as defined by the DDA was to be given its natural and obvious meaning and it
does not encompass constructive dismissal.

Request to work from home refused
Lockwood v Crawley Warren Group Limited
EOR Discrimination Digest 47, EAT

On her return from maternity leave, Lockwood worked three days a week and
took two days holiday each week from her annual entitlement. Consequently, she
was deemed to be working full-time. When problems arose regarding her childcare
arrangements Lockwood suggested that either she work from home and pay for the
necessary equipment herself or that she take unpaid leave of up to six months.
CWG rejected both proposals but agreed to Lockwood having two weeks’ paid
leave. Lockwood resigned and claimed she had been indirectly discriminated
against on the grounds of her sex.

The tribunal dismissed the claim. No new requirement or condition had been
applied to her by CWG because her job had always involved full-time working.
Lockwood successfully appealed. The EAT found that a request to work from home
at one’s own expense is "conceptually similar" to a request to work
part-time. Moreover, CWG’s proposal that following the two weeks’ paid leave
Lockwood would work full-time did impose a requirement or condition. The case
was remitted back to the tribunal for it to consider whether the requirement or
condition could be justified.

Care needed when conducting disciplinary proceedings
Whitbread v Hall
Unreported, February 2001, Court of Appeal

Disciplinary proceedings were commenced against Hall following allegations
of gross misconduct. At the disciplinary hearing Hall admitted the allegations
and was then dismissed. He brought a successful unfair dismissal claim.
Although the tribunal held that the dismissal fell within the "band of
reasonable responses" Whitbread’s disciplinary process had been so flawed
that it rendered the dismissal unfair. The EAT upheld this decision.

Whitbread appealed unsuccessfully to the Court of Appeal. The issue was
whether the requirement of "reasonableness" pursuant to Section 98 of
the Employment Rights Act 1996 was relevant only in relation to the
disciplinary sanction imposed, or whether it was also relevant to the process
leading to the employer’s decision to dismiss. Notwithstanding Hall’s
admission, Whitbread was still obliged to act in a reasonable manner.

The court held that the appropriate test in misconduct dismissals to
determine if an employer had acted reasonably was that established in Burchell
and confirmed by the Court of Appeal in Foley and Madden last year. Did the
employer hold a reasonable suspicion that the employee was guilty of
misconduct, was that suspicion based on reasonable grounds and was a reasonable
investigation carried out?

Discrimination resulted in psychiatric injury
Lawrence v JL Distribution
EOR Discrimination Digest 47, Employment Tribunal

Lawrence was of Afro-Caribbean origin. From the time his employment
commenced, until his dismissal seven weeks later, he was subject to constant
racist abuse from his colleagues. After complaining to his manager about the
treatment he was told that he "didn’t fit in" and was dismissed. He
was subsequently diagnosed as suffering from depression.

He brought a successful race discrimination claim. The tribunal held that
Lawrence had suffered direct discrimination and had been dismissed because the
other workers did not want to work with him. In addition, he had been
victimised because his dismissal arose directly as a result of his complaint to
the manager. The tribunal awarded compensation of £19,425 which included
£10,000 for psychiatric injury and injury to feelings. The tribunal was
satisfied that Lawrence’s depression constituted "moderate"
psychiatric damage. His family life had suffered, he had been prescribed anti
depressants and offered counselling, and his lack of self-confidence affected
his ability to look for alternative employment.

Care needed when settling proceedings
Gloystarne & Co v Martin I
RLB 658, EAT

Martin’s application form for an unfair dismissal claim did not specify
whether a representative was acting on his behalf. Shortly before the hearing
Jones, a trade union official, telephoned the tribunal to say that the parties
had reached an agreement and Acas would be preparing a COT3. Jones then
confirmed this by fax. The tribunal stayed the proceedings but no COT3 was
completed and Martin subsequently informed the tribunal he wanted his case
re-listed for hearing.

Gloystarne argued that there was an enforceable oral agreement in place even
though Martin had not signed the COT3. The tribunal learned that the terms
discussed between Jones and Acas were without Martin’s knowledge and it found
that Martin had merely authorised Jones to report back on any settlement
proposals. In going beyond this, Jones had acted without Martin’s knowledge and
consent and the case was re-listed. Gloystarne appealed unsuccessfully to the
EAT which held that Jones had no actual or ostensible authority to conclude a
settlement for Martin. Ostensible authority would only arise had Martin himself
held out Jones as having the authority to act on his behalf.

Council liable for discrimination
Rawat v Kirklees Metropolitan Council
EOR Discrimination Digest 47, Employment Tribunal

Ms Rawat, who was of Asian origin, reported directly to Singh, the council’s
equal opportunities adviser. Singh was responsible for organising an evening
event celebrating the independence of India and Pakistan. The council funded
the event which took place at a local town hall. Singh instructed the town hall
manager that men and women were to be seated separately, women upstairs and men
downstairs. The manager, a council employee duly notified the stewards, all of
whom were council employees. On arrival, Rawat was told to sit upstairs. Rawat
argued that by this segregation Singh and the council had discriminated against
her on the grounds of her sex and she brought a sex discrimination claim.

The council argued that it was not liable because the event was not during
the course of Rawat’s employment, but the tribunal upheld the claim.

Singh and the other employees were acting the course of their employment,
the event took place at the council’s premises, it was funded by the council
and, irrespective of Singh’s actions being in the course of his employment, the
seating arrangements at this public event were entirely under the council’s

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