The last straw
Barke v SEETEC Business Technology Centre Limited, EAT, 14 January 2006
Mrs Barke was off sick for eight months and in February 2002 was diagnosed as suffering from fibromyalgia (pain in the fibrous tissues in the body such as muscles, tendons and ligaments), causing pain and sensitivity in various parts of her body.
On her return to work, Barke initially worked 10.30am to 3.30pm two days a week and otherwise worked from home. By August 2002, she had increased her hours to almost full-time. Barke subsequently complained of various problems relating to her chair, her computer equipment and that her parking bay was occasionally blocked. The following month, she said she was unable to work a full week and would be taking Wednesdays off work.
In January 2003, she invoked the grievance procedure, claiming her proposals and need for flexibility were being unfairly rejected.
In June 2003, Barke went off sick and then only returned to work intermittently. Having been paid in full for July, she made a request for information about what she would receive in her August pay. Nobody at SEETEC could confirm the exact details. Barke resigned and brought claims for unfair/constructive dismissal and disability discrimination.
Barke claimed she had lost trust and confidence in SEETEC because of the way it had treated her. The tribunal concluded SEETEC had not acted in a manner calculated or likely to destroy the relationship of trust and confidence. Rather, SEETEC was trying to meet Barke’s con-cerns and wanted her to remain an employee. It dismissed the claims and Barke appealed.
The tribunal had failed to consider whether the accumulation of complaints amounted to a fundamental breach of the implied term of trust and confidence, and had considered only whether each individual matter was a breach. It had failed to make any clear finding whether the last event complained of was sufficient to count as a ‘last straw’ act constituting a breach of contract.
Her constructive dismissal and discrimination claims based on dismissal were remitted to a fresh tribunal. However, the Employment Appeal Tribunal (EAT) upheld the original decision to reject the claim that SEETEC had failed to make reasonable adjustments and caused Barke to suffer detrimental treatment on the grounds of disability.
This EAT decision clearly shows that where an employer’s conduct culminating in a ‘last straw’ act is relied on by an employee as amounting to a fundamental breach of the implied term of trust and confidence, a tribunal must consider the conduct cumulatively rather than individually. The conduct constituting the ‘last straw’ must contribute something significant to the breach of the implied term – an innocuous ‘last straw’ act will not be sufficient.
Hawley v Luminar Leisure Ltd and Others, Court of Appeal, 24 January 2006
Following an incident outside a nightclub, Mr Warren, a doorman, punched Hawley causing significant and permanent brain injuries. Warren was convicted for the offence and Hawley issued proceedings for negligence against both Luminar, the company which owned the nightclub, and ASE, which employed and supplied the doormen.
The parties conceded that Warren had been acting in the course of his employment, but the court had to determine whether or not he was a ‘temporary deemed employee’ of Luminar so as to make it vicariously liable for his actions. The judge was satisfied that Luminar exercised sufficient control over ASE’s employees to make them temporary deemed employees.
The Court of Appeal agreed. In deciding whether an employee is a temporary employee, the enquiry must focus on the negligent act and whose duty it was to prevent that act. Luminar exercised sufficient practical control over the doormen, not only over what services were supplied but how they were supplied.
The court took into account the fact that doormen were subject to the nightclub’s code of conduct, wore the nightclub’s uniforms and were supervised by the nightclub’s own manager.
It is possible for liability to exist both on the part of the individual’s primary employer and the client. But, in this case, the court was satisfied that there had effectively been a transfer of control and responsibility from ASE to Luminar so it was not appropriate to attribute liability to both defendants. Luminar was held liable for the claim of negligence.
An organisation cannot necessarily escape liability on the basis that it does not directly employ those who carry out work on
The court commented that Luminar did not require the services of a specialist company to provide doormen. It was able to employ and train its own door staff, but instead chose to use the services of security organisations partly as a device to get around employment laws.
The courts will always look beyond the strict contractual arrangement between the parties to examine what actually happens in practice, to determine employment status.
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