Case round-up

This week’s case round-up

Career break scheme broke continuity of employment
Curr v Marks & Spencer plc, Court of Appeal, 13 Dec 2002, All ER (D)

Cheryl Curr joined Marks & Spencer in 1973. In 1989, during maternity
leave, she decided to take part in her employer’s new career break scheme. The
scheme, which was unpaid, required Curr to resign but guaranteed her a
management post if she wished to return at the end of the break.

Following a four-year break, Curr returned to work in 1994. In 1999 Curr was
made redundant and her redundancy payment was calculated based on continuous
employment from 1994. Curr brought a tribunal complaint arguing her redundancy
payment should have been calculated on the basis of continuous employment from
1973 rather than the return from her career break.

The tribunal dismissed her complaint, but the EAT held the scheme amounted
to an arrangement under the Employment Rights Act 1996 (s212(3)) and found
Curr’s continuity was preserved from 1973 onwards. (Section 212(3)c provides
that where an employee is absent from work in circumstances in which, by
arrangement or custom, he is regarded as continuing in employ-ment for any
purpose, continuity will be preserved, even though no contract of employment is
in existence).

The Court of Appeal disagreed. For the scheme to be an ‘arrangement’ there
had to be mutual recognition by the parties that, despite Curr’s absence from
work, she nevertheless continued in M&S’ employment. This was not the case.
Curr had clearly resigned and the scheme offered future re-employ-ment which
demonstrated that she was not regarded as continuing in employment.
Accordingly, Curr was not entitled to a redundancy payment based on her service
prior to or during her career break.

Holiday pay for ‘self-employed’ joiner
Torith Ltd v Flynn, EAT, 21 November 2002, EAT website,16 Dec 2002

Flynn undertook work as a joiner for Torith, a firm of building contractors.
Throughout his engagement, he was registered as self-employed for tax purposes
and was perceived that way by the firm.

When Flynn’s engagement came to an end he brought a tribunal claim for
holiday pay under the Working Time Regulations 1998.

The regulations provide that a ‘worker’ includes "an individual who
under-takes to do or perform personally any work or services for another party
to the contract whose status is not, by virtue of the contract, that of a
client or a customer of any profession or business undertaking carried on by
the individual".

The tribunal conducted a careful review of the working arrangements between
Flynn and Torith, arriving at a number of findings of fact. In line with the
case of Byrne Brothers (Formwork) Ltd v Baird and others, 2002, IRLR 96, the
tribunal found that Flynn was a "worker" under the regulations.
Torith’s appeal was unsuccessful.

The EAT commented that the regulations appeared to create a hybrid category
of protected persons somewhere between employees and the genuinely

The chairman was correct to approach the definition of ‘worker’ by firstly
assessing the factors surrounding Flynn’s engagement much as he would have done
in determining a contract of service from a contract for services.

Having established that in Flynn’s case these factors weighed more towards
employment status than self-employed status, the decision that he properly fell
within the category of ‘worker’ was a reasonable one.

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