Case round-up by Eversheds 020 7919 4500
Model behaviour?
Jenkins v Legoland Windsor Park Ltd, EAT, 3 July 2003
n Jenkins worked at Legoland and had a permanently withered left arm which
he wears in a sling. He was one of 58 employees presented with a long-service
award modelled in Lego. Each model related to the employee’s work. Jenkins,
however, was presented with a model depicting a man with his arm in a sling.
Jenkins brought a complaint of disability discrimination on the basis that
other models identified employees by their work whereas his only identified his
disability. The tribunal found there was no obvious work feature to attach to
Jenkins’ role as a team leader, and the difference in treatment did not relate
to Jenkins’ disability, but to his work functions as a team leader. His
complaint was dismissed but he successfully appealed.
The Employment Appeal Tribunal (EAT) concluded the tribunal’s decision was
perverse. All but three of the 58 models depicted the individual in a workplace
context. There was no reason why Jenkins could not have been modelled with an
item such as a team leader’s radio, and the only explanation for his depiction
in a sling was because he was disabled and could be identified by his
disability.
The EAT decided that a reasonable person would take the view that he had
been subjected to a detriment by being identified purely by reference to his
disability at such a ceremony, and substituted a finding of disability
discrimination.
Temporary assignment
Securiplan v Bademosi,EAT, 9 May 2003
n Bademosi worked as a security officer for Securiplan at a customer site
for 21 years. On his return to work following an industrial injury, he was
required to work on a different customer site, as there was no vacancy at the
original site. A year later, Bademosi was told he would be returning to the
original customer site the following month. However, in the meantime,
Securiplan’s contract on the site at which Bademosi then worked was abruptly
terminated and awarded to Chubb.
Although Securiplan had written to Bademosi to confirm he would be retained
to work at the original site, he did not receive the letter until after he had
resigned and he subsequently claimed unfair constructive dismissal.
Securiplan sought to argue that Bademosi’s contract of employment had
transferred to Chubb under TUPE. The tribunal disagreed, and upheld his unfair
dismissal complaint. Securiplan appealed.
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The EAT dismissed his appeal and held Bademosi was not "assigned"
to the second contract for the purposes of Transfer of Undertakings (Protection
of Employment) Regulations 1981 (TUPE) at the time of the transfer to Chubb as
his assignment was only temporary.
The question of what is a temporary or permanent assignment is a matter of
fact in each case. The correct approach is to ask whether the employee is part
of the human stock of undertaking transferred, or there at the behest of his
employer.
