Case round-up by Eversheds 020 7919 4500
Label conscious?
Dacas v Brook Street Bureau (UK) Ltd and Wandsworth London Borough
Council, [2003] IRLR 190
When it comes to identifying employment status, the courts must take little
account of the ‘label’ given to a worker, looking at the practical realities of
the relationship instead. But in this case, the tribunal seems to have been
swayed by the recruitment agency’s description of Dacas’ status.
Dacas was a cleaner who signed up with Brook Street Bureau (UK) Ltd. She was
posted to a council run mental health hostel where she worked exclusively for
six years. Following a serious altercation with a hostel visitor, Dacas was
removed from the hostel and from Brook Street’s books.
She brought a claim for unfair dismissal against both the agency and the
council, arguing that she was an employee of one or the other. While the
tribunal found two key elements of employment status were present – that Brook
Street had control over the way Dacas performed her duties and that there was a
mutual obligation between them – it found that Dacas was not an employee. She
appealed.
The EAT found that Dacas had the status of a temporary worker. The tribunal
had found control and mutuality of obligation between Dacas and Brook Street,
and should have found that she was an employee of the agency. Instead, it had
placed far too great a reliance on the terms of her written contract.
Ask no questions
Jones v London Borough of Havering and Another, EAT [2003] All ER(D) 343
Jones was a school teacher, and following a period of sick leave she
complained that her workload was excessive and that it was causing her stress
and anxiety. As a result, she was offered a referral to the council’s
occupational health practitioner for a mental health risk assessment.
When this assessment failed to materialise, Jones resigned. Her resignation
was temporarily withdrawn when the assessment was again promised. When it
failed to take place again, she resigned once more – this time, bringing a
claim for constructive unfair dismissal as well.
At the hearing, Jones attempted to cross-examine the council on the content
of an appropriate risk assessment. The tribunal chairman stopped her from doing
so however, believing that she was trying to introduce new technical evidence
that she had not given in evidence herself and was not qualified in that area.
When she lost her case, Jones appealed.
The EAT upheld her appeal. A proper assessment had not been carried out, and
she should have been allowed to cross-examine the council – even though she had
not provided evidence as to how such an assessment should have been done.
