Refusal to allow part-time working was discriminatory

A claim of indirect sex discrimination was upheld when a request for
part-time working, due to a reduction in childcare, was rejected. Law firm
Eversheds reports on this and a range of other employment law cases that have
recently come to judgement


Kent County Council v Mingo, EOR 89, January 2000
Less favourable treatment occurred after redeployment

After injuring his back, Mingo was fit only for light duties. He was found
temporary work in a day centre and a formal recommendation was made for

He was classified as category B which covered staff redeployed because of
incapability/ill-health. Category A covered staff at risk of, or under notice
of redundancy and they were given priority consideration for alternative
employment. Mingo expressed interest in several posts but these were reserved
for category A staff.

When his appointment at the day centre ended he was dismissed under the
council’s incapability procedure. He brought a successful claim for disability
discrimination. The tribunal held he had received less favourable treatment
compared with category A staff and that treatment could not be justified.

Further, the council had failed to take reasonable steps to prevent
dismissal by considering whether adjustments could be made to any vacant posts.
The council was unsuccessful in its appeal.

Hardie v CDNorthern, IRLR, February 2000, EAT
Small business and disability

CD had fewer than 15 staff and, as a small business for the purposes of the
Disability Discrimination Act, was exempt from provisions relating to
discrimination in employment. Hardie brought a disability claim arguing that if
the employees of CD’s associated companies were taken into account, CD would
not have the exemption. The tribunal dismissed his claim.

Hardie appealed to the EAT arguing failure to include associated employers
when calculating the number of employees was a legislative oversight. The
appeal was dismissed. Parliament had decided there would be an exemption for
small businesses and achieved this by imposing a specific limit on the number
of employees. Had it intended to include associated employers it would have
expressly provided for this.

Hardie was relied on in Colt Group v Couchman (unreported, January 2000).
Colt was a worldwide organisation with a multi-million pound turnover but the
company for which Couchman worked had only seven employees. Her disability
discrimination claim was unsuccessful.


Kerry Foods v Creber & others, IDS Brief 653, EAT
Lack of consultation after a transfer for Tupe purposes

The receiver of a sausage factory dismissed all staff within days of its
appointment and ceased production. It sold the business to Kerry, which
acquired the brand name and goodwill, but no staff.

All employees brought successful claims for unfair dismissal against Kerry.
The tribunal held there was a relevant transfer for Tupe purposes, even though
Kerry had not taken on any of the staff, and that the main reason for the
dismissals was the transfer. There had been no consultation by the receiver and
the tribunal made an award against Kerry of four weeks’ pay for each employee.

Kerry appealed. The EAT held that the main reason for the dismissals was the
transfer and so liability passed to Kerry. The ETO defence was not available to
Kerry since the dismissals were entirely transfer-related. More significantly,
the EAT concluded that the right to collective consultation before a Tupe
transfer arises from the contract of employment and this too is a duty which
passes to the transferee.

Breach of contract

Euro-Die (UK) v (1) Skidmore, (2) Genesis Diesinking, IDSBrief 655, EAT
What constitutes a fundamental breach?

Skidmore started employment with Genesis in June 1986. On Friday 9 January
1998 he was told Genesis would cease trading with immediate effect but he could
work for Euro-Die, which would be continuing the business from the following
Monday. Skidmore asked Genesis for confirmation that his continuity of
employment would be protected and resigned after Genesis failed to provide that

He claimed constructive dismissal against Genesis and Euro-Die. The tribunal
held there was a transfer for Tupe purposes and as the transfer was the reason
for Skidmore’s "dismissal" it was unfair and liability for this
passed to Euro-Die.

Euro-Die appealed and argued that it was not liable for Genesis’ failure to
provide the assurance, as it occurred before the transfer, when there was no
contract between it and Skidmore. Further, that that failure was not serious
enough to amount to a fundamental breach of contract.

The EAT dismissed the appeal and held that the information requested by
Skidmore was crucial and the timing of his request critical. Failure to provide
the assurance was a fundamental breach of the implied term of trust of
confidence, entitling Skidmore to resign, and Euro-Die was responsible for
Genesis’ actions before the transfer.


International Consulting Services (UK) v Hart, unreported, Queen’s Bench
Division, January 2000
The reasonableness of contractual restraints

Hart’s contract contained a restraint whereby for 12 months after
termination he would not deal or contract with ICS clients or individuals with
whom ICS had been "in negotiations" in the 12 months prior to

In December 1998, Hart met with a prospective client, UTA, and unknown to
ICS had another meeting in March 1999 to discuss providing services through his
own company. Hart left ICS the same month. In September 1999, ICS learned of
the March meeting and that Hart had obtained UTA’s business.

ICS was granted an injunction against Hart. It was held that the discussions
in March amounted to negotiations and the restraint was reasonable even though
it extended to potential rather than actual customers of ICS. As Hart was still
in employment at the time of those negotiations he was also in breach of his
duty of good faith and a term preventing him from using confidential
information for his own purposes.


Feeney v IPCMagazines, EORDigest 42, December 1999, Employment Tribunal
Refusal to allow part-time working was discriminatory

Feeney worked full-time as an advertisement promotions manager but asked to
work three days a week after her childminder said she could work only
part-time. Feeney’s manager was concerned at the "lack of continuity"
with clients and she rejected the request but agreed to consider a job-share

After several weeks no decision had been made and when Feeney learned the
request was still being considered she resigned. The same day the company
confirmed it would not agree to a job-share because of the extra work involved
for the rest of the department.

Feeney’s claim of indirect sex discrimination was upheld. The requirement to
work full-time was one that she could not satisfy at the time as the
childminder would work only part-time. The requirement was not justified as it
was common in the organisation to job share and it ought to have allowed a
trial period to see if the job share worked.


Mahlburg v Land Mecklenburg, unreported, February 2000
Access to employment

Mahlburg worked as a theatre nurse under a 12-month fixed-term contract. She
wanted a permanent position and in June 1995 applied for two vacancies which
were advertised internally. In July she informed her employer that she was

Her applications were unsuccessful and the hospital cited legal reasons for
her non-appointment, namely the prohibition in Germany on employing pregnant
women in jobs where they might be exposed to dangerous substances or infection.

Mahlburg claimed unlawful discrimination and a breach of the equal treatment

The ECJ held that notwithstanding the legal restrictions, the hospital could
not refuse to appoint Mahlburg to a permanent position of an indefinite period
even though she could not take up the position from the outset or, indeed, for
the duration of her pregnancy. Further, the hospital could not justify the
refusal to appoint Mahlburg because of the financial loss it would suffer while
she was on maternity leave.

Health and safety

Harvest Press v McCaffrey, IDS Brief 654, EAT
What constitutes a danger at work?

All employees, regardless of length of service, are protected from dismissal
for refusing to work in circumstances of serious and imminent danger. Such
dismissals are automatically unfair.

McCaffrey had worked at Harvest for several months and throughout his time
on night shift a colleague had behaved abusively towards him. McCaffrey
complained to his manager and a meeting was arranged to discuss his concerns.

Before this, there was another incident which McCaffrey found so threatening
he left mid-shift. He refused to return unless he received assurances about his
safety. Harvest considered this a resignation and sent McCaffrey his P45.

McCaffrey’s claim of unfair dismissal was successful. The tribunal held that
he reasonably believed he was in danger from his colleague and could only avoid
this by leaving the workplace. Harvest argued that danger was limited to
dangers arising out of the workplace rather than danger caused by other workers,
and appealed. The EAT held the legislation covered any danger.

Contract staff

MHCConsulting Services v Tansell, IRLB 630, EAT
Protection for contract employees

Tansell was a computer consultant and through his company, intelligents,
provided computer services to third parties. MHC had a contract to supply
computer personnel to Abbey Life and agreed terms with intelligents to supply
Tansell’s services to them. Tansell alleged his services were rejected by Abbey
Life because of his disability and brought a claim against both MHC and Abbey

The tribunal held that Tansell was not employed by MHC or Abbey Life, nor
was he a contract worker for Abbey Life. His claim could proceed against MHC as
principal because of its direct contractual relationship with Intelligents.

Both MHC and Tansell appealed. The EAT allowed both appeals and held that
whenever there was an unbroken chain of contracts between the individual and
the end-user, the end-user was the "principal" even though there was
no contractual relationship between it and the employer. The claim would
proceed against Abbey Life only, which was given leave to appeal to the Court
of Appeal.


Smith v Zeneca (Agrochemicals), unreported, February 2000, EAT
Care needed when investigating complaints

Smith was employed under a one-year fixed-term contract and had been
subjected to a number of incidents of sexual harassment from her line manager.
She complained about him and gave evidence at the subsequent disciplinary

When her contract expired it was not renewed and Smith brought a
discrimination claim. At the hearing she raised a new claim alleging the
handling of her complaint constituted further harassment. She alleged that the
questions asked of her had been unnecessary and inappropriate.

The tribunal held that it had no jurisdiction to consider the new claim, on
the basis that it had not been disclosed earlier. Smith appealed. The EAT held
she should have raised her new allegations before the hearing to enable the
firm to prepare its case. The balance of injustice lay against the hearing of
the new allegation and Smith’s appeal was unsuccessful.

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