Case round up

This week’s case round up

Sub-contractor entitled to holiday pay
Cavil v Barratt Homes Ltd, EAT, 1 July 2003, IDS Brief 744, November

Cavil, a joiner, worked under a labour-only sub-contract for Barratt Homes
for about four months. He was expected to inform the company if he was off sick
or would be on holiday, but was not required to book holiday in advance. No
prior approval was needed for Cavil to provide a substitute worker in his
absence, and in practice, this situation rarely arose as he chose to do the
work himself.

Cavil claimed unpaid holiday pay under the Working Time Regulations.
Initially, his claim failed when an employment tribunal decided he did not fall
into the category of being a ‘worker’, which is a prerequisite to being
entitled to holiday pay under the regulations.

The EAT, however, disagreed. Mutuality of obligation is a necessary element
of a contract for services, and looking at the contract between Cavil and
Barratt as a whole, the EAT found that it did impose an obligation on Cavil to
do the work undertaken himself. Cavil was offered a steady supply of jobs on
various sites, and he completed this work until he finally stopped working for
the company. In these circumstances, the EAT decided that Cavil was a ‘worker’,
and was therefore entitled to holiday pay.

Rejection of a disabled job applicant
Mallon v Corus Constructions and Industrial, EAT, 29 September 2003, New
Law Online, 3 October 2003

Mallon was an experienced nurse who suffered from diabetes, controlled by
the self-injection of insulin.

She was interviewed for an occupational health nurse position with Corus,
but the interview was ended when Mallon told them about her diabetes. She was
not offered the post on the basis of Corus’s stringent medical guidelines, and
because the company considered that, as a lone worker, Mallon would be at risk
due to her insulin dependency.

Mallon’s claim for disability discrimination was considered both by an
employment tribunal and by the EAT. Corus’s premature termination of the
interview and refusal to offer employment did amount to less favourable
treatment for a reason related to Mallon’s disability.

However, such less favourable treatment was justified in this case. Mallon
could not guarantee that she would never suffer from an attack related to her

Corus had carried out investigations and made a reasonable risk assessment based
on medical guidance. There was a known risk, supported by medical opinion,
which justified Corus’s stance, and there were no reasonable and effective
adjustments that could have been made.

Even if Corus could have made reasonable adjustments, it would not have
prevented or avoided the risk of Mallon suffering uncontrolled attacks.

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