On appeal

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

 

Employment
status of agency worker

Montgomery
v Johnson Underwood, unreported, March 2001, Court of Appeal

 

Montgomery
was engaged by Johnson Underwood, an employment agency, and was assigned to
work as a receptionist for O&K in June 1995. Contractual terms were agreed
between Montgomery and the agency but she took her daily working instructions
from O&K which had its own agreement with the agency.

 

In
November 1997, at O&K’s request, the agency terminated Montgomery’s
assignment because she was making unauthorised personal telephone calls.
Montgomery brought unfair dismissal claims against the agency and O&K but
the tribunal held she was only an employee of the agency. Montgomery appealed
as did the agency against the finding she was its employee.

 

The
Employment Appeal Tribunal considered the contractual documents and factual
circumstances to determine whether Montgomery was an employee and, if so, of
which organisation.

 

It
considered issues such as control, integration and mutuality of obligations
and, taking into account the length of Montgomery’s assignment and the agency’s
power to terminate the assignment, it held by a majority that Montgomery was an
employee of the agency and not of O&K.

 

However,
the Court of Appeal allowed Johnson Underwood’s appeal and found that
Montgomery was not its employee. The tribunal had failed to take into account
established guidelines when determining whether there was a contract of
service, in particular whether there was a mutual obligation to create a
contract of service and an element of control by the agency over Montgomery.

 

What
‘aiding’ means

Anyanwu
v South Bank Student Union and University unreported March 2001 House of Lords

 

Under
section 33(1) of the Race Relations Act 1976 someone who knowingly aids another
to do an act which is unlawful under the RRA is treated as having done that act
himself.

 

Anyanwu
and Ebuzoeme were both elected to paid posts on the Students Union executive.
Their expulsion from the university led to their dismissal from their union
posts. They brought unsuccessful applications for judicial review against the university
and then race discrimination claims against both the university and union.

 

A
technical legal issue was raised, namely whether, having lost the judicial
review, it was open to the individuals to claim discrimination against the
university. This was possible if the university aided a discriminatory act but
not if it had discriminated itself.

 

The Court
of Appeal held that they could not claim. Even though the university’s
expulsion of the students resulted in the termination of their posts, the
university had acted as the "prime mover" and had not "knowingly
aided" a discriminatory act within the meaning of section 33.

 

The House
of Lords, however, allowed the students’ appeal. The word "aid"
should be used in its ordinary sense, namely helping or assisting. It had no
technical or special meaning in this context and the matter was remitted back
to the tribunal for it to consider the university’s conduct.

 

Notice
of overtime

Lange v
Georg Schunemann, IRLB 661, European Court of Justice

 

Lange’s
contract specified that his working week was 40 hours but there was no
reference to overtime. When Lange refused to work overtime to meet a customer’s
order within a particular deadline he was dismissed.

 

He brought
proceedings before the German national court but there was dispute about what
had been agreed regarding overtime. GS claimed Lange had agreed to work
overtime on request if there was a sudden increase in workload whereas Lange
claimed he had only agreed to work overtime in emergencies.

 

The Proof
of Employment Relationship directive provides that an employer must notify an
employee of the essential aspects of their contract or employment relationship.
And, in Germany, the law implementing the directive provides that a written statement
detailing the "essential conditions" (including agreed working hours)
must be provided to the worker within one month of employment starting.

 

The German
court referred the matter to the ECJ for a preliminary ruling. The court held
that "normal working hours" does not mean overtime but, as overtime
constitutes an essential element of the contract, the employer had to give
written notice to an employee of any term which required him to work overtime.

 

Adjustments
under the Disability Discrimination Act

Post
Office v S C Jones, unreported, April 2001, Court of Appeal

 

After a
heart attack, Jones who was diabetic became dependant on insulin. The Post
Office’s medical adviser directed that he stop driving. Jones brought a
complaint of unlawful discrimination on the grounds of disability which
resulted in the Post Office making an offer to Jones that as part of his duties
he could drive for up to two hours a day.

 

The
employment tribunal found that the Post Office had discriminated against Jones
on various grounds.

 

The Post
Office appealed. And the EAT upheld certain findings of discrimination.

 

However,
it set aside the initial tribunal’s findings and recommendation in relation to
the employer’s duty to make adjustments in that they stipulated requirements
with which the Post Office was required to comply rather than recommending that
the Post Office simply consider taking further steps within a specified period.

 

The Court
of Appeal dismissed Jones’s appeal in this complex case. The limit on the hours
Jones could drive constituted less favourable treatment. The Post Office acted
on medical advice and it was not open to the tribunal to assess the medical
evidence on a de nova basis nor to make its own risk assessment. Rather it was
for the tribunal to apply the statutory criteria.

 

The EAT
had correctly quashed the earlier tribunal’s finding regarding the reasonable
adjustments to be made and the case ought to be resubmitted for
reconsideration.

 

By
Debra Gers, assistant solicitor at Eversheds, tel: 02920 471147

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