On appeal

Continuing
our regular series spelling out the implications of important cases which have
been heard recently in the appeal courts. Debra Gers looks at the issues

Casual
worker was not employee
Stevedoring and Haulage Services v Fuller & others, IDS Brief 687, CA

Fuller
was made redundant by Stevedoring in 1995 but in 1996, to meet Stevedoring’s
need for casual workers, was re-employed "on an ad hoc and casual
basis". The documentation Fuller signed stated that he was not an employee
and that there was no obligation for Stevedoring to provide or for Fuller to
accept work. Fuller was only paid for the hours worked and for administration
purposes, tax was deducted under the PAYE scheme.

Until
1999 Fuller worked regularly and exclusively for Stevedoring under its
direction and control and was given work in priority to others supplied by an
agency. Training and protective clothing were provided.

In
1999, Fuller applied to the employment tribunal for written particulars of
employment on the basis that he was an "employee" and that implied
terms conferred sufficient mutuality of obligation to establish a contract of
employment. His claim was successful. The tribunal held Fuller did not work
under a series of individual engagements but under an "overarching"
contract of employment. The EAT upheld this decision.

Stevedoring
successfully appealed to the Court of Appeal. The documentation provided a
framework for a series of successive ad hoc contracts and the parties’ conduct
was consistent with the performance of such contracts. The tribunal erred in
creating an overarching contract into which mutuality of obligation could be
implied and even if there had been such a contract it was not appropriate to
imply terms because these would contradict the express term that there was no
mutuality of obligation.

ECJ
guidance on equal pay claims
Brunnhofer v Bank der ”sterreichischen Postsparkasse AG, IRLB 673,
September 2001, ECJ

Brunnhofer
was employed by the bank from 1993 to 1997. She brought an equal pay claim
because although she received the same salary as a male colleague who was
classified with the same grade (laid down by the applicable collective
agreement) and who began work in 1994, she received a lower monthly pay
supplement. The bank accepted her supplement was lower but contended there were
objective reasons justifying this namely that although the two jobs were
originally regarded as of equal value and classified within the same grade, the
male employee performed more important functions, had more responsibility and
produced better quality work.

Brunnhofer’s
claim was dismissed and she appealed to the Austrian appeal court which
referred three questions to the ECJ. First, whether employees of the same grade
could be said to be performing the same or equal value work. Second, whether it
is for the employer to prove a difference in work when two workers are of the
same grade. Third, whether factors outside the collective agreement can justify
pay differences.

The
ECJ’s decision provides useful guidance on these points. When determining
whether two employees were performing the same or equal value work, it was
necessary to consider a range of factors, including the nature of the work, the
training requirements and the working conditions. Such factors are qual-
itative and exclusively concerned with the nature of work. Accordingly, the
fact that two employees were classified under the same grade within the
collective agreement did not mean both performed the same or equal value work.

Further,
the burden of proving sex discrimination in equal pay claims lies with the
employee although this burden can shift to the employer if a pay system is not
sufficiently transparent to enable the employee to compare her pay with that of
the comparator. In this case there was transparency, the bank did not deny the
pay supplement differential and the burden remained with Brunnhofer.

Finally,
however, the bank could not rely on factors which came to light during the
actual performance of Brunnhofer’s and her male colleague’s duties (such as
quality of work) to justify a pay difference fixed at the time of appointment
because at that time, the bank could not have known whether those
justifications existed.

Effective
use of Tribunal and High Court procedures
Sajid v Chowdhury & another, unreported October 2001, Court of Appeal

Sajid,
who was made redundant in January 1998, brought tribunal claims for unfair
dismissal, redundancy pay and compensation for breach of contract for wrongful
dismissal. He recognised in his tribunal application form that the tribunal’s
jurisdiction was limited to a maximum of £25,000 for breach of contract claims
and he reserved the right to rely on any findings made by the tribunal if
pursuing proceedings in another court.

Sajid
then commenced High Court proceedings claiming £73,000 compensation for
wrongful dismissal and withdrew this part of his tribunal claim, following
which it was formally dismissed.

In
its defence to the High Court claim, Chowdhury contended that Sajid was barred
from continuing because of the principle of res judicata whereby a claimant
cannot bring an action in one court after it has been finally determined by
another.

The
High Court disagreed and Chowdhury appealed to the Court of Appeal. It was
argued that because Sajid had withdrawn the wrongful dismissal claim the issue
had been "determined" by the tribunal, which prevented Sajid
proceeding in the High Court.

The
Court of Appeal stated that the policy behind res judicata was that there
should be finality of litigation and the avoidance of multiple actions. Once a
decision is reached in one court it would be unfair to allow the claimant to
raise the same claim before a different court.

However,
Sajid had always contemplated High Court proceedings because of the tribunal’s
limited jurisdiction in respect of breach of contract. As there was no
procedure to transfer cases from the tribunal to the High Court, Sajid was
merely preserving his rights. His actions actually avoided multiplicity.

Furthermore,
in reality none of the parties regarded the dismissal of the wrongful dismissal
claim to be a final determination but rather a transfer to the High Court where
a final determination could be given.

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