This
week’s case roundup
Discrimination
of contract workers
Allonby & others v Accrington & Rossendale College and Education
Lecturing Services, unreported, March 2001, Court of Appeal
Allonby
had been employed as a part-time lecturer for six years on a series of one-year
contracts. When the college faced financial difficulties it did not renew the
contracts of part-time employees but re-engaged them all as subcontractors
through ELS.
As
a result the lecturers were considered to be self-employed, their salary was
reduced and they were no longer entitled to contractual sick pay or pensions
benefits. Allonby’s equal pay claim and claim for indirect sex discrimination
were dismissed as was her appeal to the EAT.
The
Court of Appeal allowed the appeal in part. While the tribunal had found that
Allonby had suffered indirect discrimination it erred in finding that the
college was justified in its actions and had failed to weigh the justification
against the discriminatory effect.
The
difficulty with the equal pay claim was that Allonby was engaged by ELS and her
proposed comparator was employed by the college. They were not held to be
working for the “same employer” and this issue was referred to the ECJ for a
preliminary ruling.
Small
firm exemption may not be justified
Whittaker v P&D Watson, EOR Discrimination Digest 47, Employment
Tribunal
Watson
had fewer than 15 staff which meant that for the purposes of the Disability
Discrimination Act 1995 (DDA) it benefited from the small employer exemption
and the tribunal had no jurisdiction to hear Whittaker’s disability claim.
Whittaker relied on the Human Rights Act 1998 (HRA) to challenge this exemption
on the basis that it breached Article 6, the right to a fair trial, because the
exemption meant he had no effective remedy. He asked the tribunal to stay the
proceedings pending an appeal rather than dismiss them.
Section
4 (2) of the HRA enables a court to make a declaration of incompatibility but
“court” does not include an employment tribunal. The tribunal chairman agreed
to stay the proceedings. The key issue was “proportionality”. Could the small
employer exemption justify the discrimination against a significant part of the
disabled population? Also, there was no small employer exemption in the Sex
Discrimination and Race Relations Acts.
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The
chairman held there was a reasonable prospect of a “court” holding that the
small employer exemption was incompatible and proceedings were stayed.
By
Eversheds
