Case round up

Our residents experts at Pinsents bring you a comprehensive update on all
the latest decisions that could affect your organisation, and advice on what to
do about them.

Pratley v Surrey County Council, Court of Appeal
Another important ruling on liabilities for stress-related illness

* * * * Pratley was employed by the council as a care manager. In March and
August 1996 she complained of stress caused by overwork, warning that her
health would suffer if her workload was not reduced. Immediately before
Pratley’s summer holiday, her line manager promised to introduce a ‘stacking’
system whereby cases would be allocated only to those with capacity. When
Pratley returned to work and found that no steps had been taken to implement
this system, she suffered a depressive illness.

Key points

Pratley brought a negligence claim. She argued that her case met the
guidelines for establishing liability under the Court of Appeal in Hatton in
February 2002. She put her employer on notice of a risk of harm to her mental
health, the employer acknowledged that steps could be taken to alleviate the
problem, had failed to action these and she therefore suffered mental illness.
The High Court and the Court of Appeal rejected her claim.

Pratley’s claim failed because there was a key difference between the type
of risk to which Pratley had alerted her employer and the type of injury that
she suffered. Her complaints had identified a risk of harm in the longer term
if her workload was not addressed. It was not foreseeable that she would suffer
any mental injury if the employer took no steps to introduce the stacking
system during her holiday. Pratley failed to establish that the council ought
reasonably to have addressed the problem immediately. It was entirely
reasonable for the manager to see how Pratley felt on her return to work before
taking specific action.

The Court of Appeal drew an interesting distinction between the long-term
risk of psychiatric illness caused by a continuing excessive work overload, and
the risk of an immediate breakdown. For the purposes of establishing liability
for negligence, the gravity and imminence of the harm to health will be
relevant to issues of foreseeability of harm and breach of duty.

The issue is not just what it is reasonable to expect employers to do, but
when it is reasonable to require it to do it.

What you should do

– Listen to employees’ complaints about work-related stress and explore
possible solutions

– Try to understand the nature of the risk to health: is it long-term or
immediate? Prompt action will generally be the best course of action

– Remember that employees can base other types of claims (eg, constructive
dismissal) on work-related stress or a failure to take action.

These may offer easier routes to recovering damages for psychiatric injury.

HSBC plc v Drage, EAT
A useful illustration of the factors to be considered when invoking
mobility clauses

* * * Drage worked at the HSBC bank’s Devizes branch. However, the bank
transferred her to a branch nine miles away because of a shortage of
experienced counter staff there. It invoked a mobility clause in Drage’s
contract under which she could be required to work at other branches within a
reasonable travelling distance of her existing location or home.

Drage objected on the grounds that she took her children to school at 8.50am
before starting work at 9am. A series of meetings followed under the bank’s
grievance procedure and the bank offered a number of alternative arrangements.
Dissatisfied with these, Drage resigned. The EAT overturned Drage’s complaint
of constructive dismissal, ruling that the employment tribunal’s earlier
finding of a fundamental breach of contract could not be upheld.

Key points

The EAT emphasised that, in a case regarding the operation of a mobility
clause, it was not for the tribunal to decide what was reasonable or what a
reasonable employer would do. If the employer had shown some business reason
for invoking the mobility clause – that the transfer was not arbitrary or
capricious – the tribunal could not judge whether those reasons were reasonable
or appropriate. The EAT underscored that an employer invoking a mobility clause
must take into account the employee’s personal and domestic circumstances, but
confirmed that there is no obligation to reimburse an employee for any
additional expense incurred due to the changed work location.

The EAT overruled the tribunal’s decision that a failure to discuss with
Drage whether there were any advantages to her in moving to a larger branch
amounted to a breach of the implied duty of trust and confidence. The EAT stressed
that in a constructive dismissal claim, the employee had to show a fundamental
breach of contract on the part of the employer, which had been accepted by the
employee. This was an objective test. It was not enough for the employee to
feel a decision had caused distress or that she had lost confidence in the
employer. Drage had access to the respondent’s grievance procedure, the bank
had modified its position and had sought to implement an acceptable solution.

What you should do

– Include mobility clauses in employment contracts to increase flexibility

– Remember clauses can avoid a redundancy situation arising when place of
work is changed

– Always take account of an employee’s personal circumstances when invoking
mobility clauses

– Use grievance procedures or consultation to identify agreed solutions.

Case of the month by Nick Sheppard
Full and part-time firefighters are retained under different contracts

Matthews & Others v Kent & Medway Towns Fire Authority & Others,
The first significant decision under the Part-Time Workers Regulations

In this important decision, the Employment Appeal Tribunal has given crucial
guidance on the scope of the Part-Time Workers (Prevention of Less Favourable
Treatment) Regulations 2000.

Matthews, a retained (or part-time) firefighter, claimed less favourable
treatment compared to a whole-time (or full-time) firefighter. Retained
firefighters who generally have separate full-time employment, are essentially
required to perform firefighting work. Full-time firefighters carry out a
broader range of duties primarily focused on fire safety and prevention.

Key points

Under the regulations, the part-time worker must be able to compare his/her
treatment to that of a "comparable full-time worker". That comparator
must, among other things, be employed under the same type of contract and
engaged in the same or broadly similar work, having regard where appropriate to
qualifications, skills and experience.

In Matthews, the EAT upheld the tribunal’s ruling that retained firefighters
were employed under different types of contract to whole-time firefighters and
not engaged in the same or broadly similar work within the meaning of the

The EAT declined to take a restrictive view of the various factors that an
employer could use to show employment on "different contracts". These
could include the contractual working patterns, pay arrangements (including the
rationale for these), selection procedures and issues of training and

Furthermore, it was clear that the range of duties carried out by retained
firefighters was much more restrictive than that of full-time firefighters.

This decision is also relevant to the validity of comparators under the
Fixed Term Contract Regulations 2002.

What you should do

– Identify potential comparators for part-time workers and fixed-term
employees. Carry out an audit to identify areas of differential treatment

– Where there are differences in treatment, consider whether to eliminate
these or, if they are retained, make sure you consider the need for objective

– Remember that arguments that comparators are invalid because they carry
out a different kind of work or range of duties should be based on what happens
in practice, not just on what the contract says.

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