Employment tribunals must follow clear guidelines

The EAT finds a tribunal’s decision ‘perverse’ in failing to follow
established guidelines when determining a plaintiff’s employment status.  Plus cases on TUPE, race discrimination and
victimisation

Determining Employment Status
Reid v North West Ceilings
Unreported April 2001 EAT

Reid worked exclusively for NWC on a self-employed basis as a supervisor and
shop fitter for around four years. He received no holiday or sick pay and was
responsible for his own tax and National Insurance. In March 1998 he was
engaged as an employee under a new contract. A short while later he was
dismissed but the tribunal struck out his unfair dismissal claim. It held Reid
was not an employee in the four-year period to March 1998 and accordingly he
did not satisfy the qualifying period of continuous employment.

The EAT held the tribunal’s decision was perverse. It had failed to take
into account well established guidelines and attached too much significance to
certain factors and not enough to others, for instance, tax and National
Insurance liabilities is a consequence of a decision as to status and not
determinative of it.

Reid’s role as supervisor providing personal services for NWC and working
under its control showed he was clearly its employee. Moreover, other
individuals doing a similar job to Reid were considered to be employees and
subject to PAYE during the period 1994 to March 1998.

Business Transfers and Constructive Dismissal
Rossiter v Pendragon Plc
IDS Brief 683 EAT

Rossiter’s employment transferred to Pendragon in October 1997 following a
business transfer to which the Tupe regulations applied. In 1999 he resigned
and claimed constructive dismissal after Pendragon unilaterally withdrew a
scheme relating to holiday pay and made other changes. He argued that these
changes were a substantial and detrimental change to his working conditions,
which entitled him to resign pursuant to regulation 5(5). The tribunal
dismissed the claim and held the changes did not constitute a fundamental
breach of contract.

Rossiter appealed, arguing that the correct way of establishing constructive
dismissal in the context of a business transfer was whether there had been a
substantial and detrimental change in working conditions (see the wording of
article 4(2) of the Acquired Rights Directive and regulation 5(5)). It was not
necessary to show a fundamental breach of contract pursuant to section 95(1) of
the Employment Rights Act 1996 and in any event that act had to be construed
purposively to give effect to the directive. The appeal was allowed and the case
remitted back to the tribunal.

Recruitment Procedure Discriminatory
Ayub and others v Derby City Council
EOR Discrimination Digest 47

Ayub, Rashid and Sharief applied for the post of race equalities adviser
with the council. All were of Pakistani origin as was the head of the unit,
Syed. The interview panel, which included Syed, unanimously decided to appoint
Sharief but before informing him they informed deputy council leader Young. He
objected to the appointment because of flaws in the recruitment procedure and
the lack of an observer at the interview. He insisted the recruitment drive be
re-run and that the position be advertised in two Indian newspapers and one
Pakistani newspaper. Although the previous applicants were re-considered, the
successful candidate was an Indian woman.

The claims of race discrimination were successful. The tribunal found that
the procedural flaws during the recruitment process did not justify starting
the process all over again especially as there were also flaws the second time
around. It found that the real reason for re-interviewing was Young’s intention
to ensure "an appropriate" community mix by appointing an Indian
candidate rather than a Pakistani

Tribunal not obliged to make a recommendation
Fasuyi v London Borough of Greenwich
IRLB 661 EAT

In November 1997 Fasuyi, of West African origin, unsuccessfully applied for
promotion. He brought a claim for race discrimination and victimisation (he had
brought an unsuccessful race discrimination claim against the council earlier
that year.) The tribunal upheld only the claim of victimisation and awarded
Fasuyi £7,000. The tribunal declared that it would not make a
"recommendation" pursuant to section 56 of the Race Relations Act, to
recommend that the council take practicable action to reduce the adverse effect
of the discriminatory act because Fasuyi had not sought a recommendation as a
remedy.

On appeal the EAT held there had been no error of law by the tribunal. It
had considered the issue of a recommendation (as evidenced by its declaration)
but it had concluded there was no practical recommendation that could be made.
The tribunal had taken into account the fact that the council had in place
equal opportunities polices and ethnic monitoring and that the adverse effects
of the victimisation were remedied by the award of compensation.

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