This week’ s case round-up
Right to vary hours and wages
International Packaging Corporation (UK) Ltd v Balfour and Others, EAT
(Scotland), [2003] IRLR 11
In this case, the tribunal held that a company had made unlawful deductions
from employees’ wages by its unilateral introduction of short-time working.
Due to a fall in orders, the International Packaging Corporation (IPC)
introduced short-time working and reduced staff working hours without the
employees’ consent, which led to a consequential reduction in their earnings.
The workers brought tribunal complaints claiming that IPC had made an unlawful
deduction from their wages (under s13 Employment Rights Act 1996). There was no
express contractual term entitling IPC to introduce short-time working.
However, the tribunal noted that IPC had introduced short-time working on
two previous occasions without objection from the employees’ trade union.
Therefore the tribunal held that there was an implied term, by reason of custom
and practice, that IPC was entitled to introduce short-time working.
Nevertheless, the tribunal went on to find that as IPC had failed to satisfy
the legal requirements of s13(2)b ERA 1996 (by failing to notify the workers
individually in writing of the term’s existence and effect), IPC had indeed
made unauthorised deductions, and the employees’ claims were upheld. IPC
unsuccessfully appealed to the Employment Appeal Tribunal (EAT).
The EAT did not agree that there was an implied term of the contract which
enabled IPC to introduce short-time working. There was nothing to suggest that
the workers had agreed to an open-ended commitment to accept shorter working
hours or reduced wages at the discretion of IPC. The reduction in working hours
was a variation of contract, and any deduction of wages without agreement was
not permitted under the 1996 Act, even if it related to the hours worked.
Consequently, the workers’ claims for unlawful deductions of wages were upheld.
No liability for stress related illness
Barlow v Broxbourne Borough Council, High Court, [2003] All ER (D) 208
In 1964, Barlow started working for the council as a gardener, and by 1993
he had been promoted to senior operations manager. Following his breakdown in
1998, Barlow left work. He brought a High Court damages claim for personal
injury.
Barlow claimed he had been subjected to a "culture of abuse" and
bullying by senior colleagues, causing psychological injury. He also argued
that they had exposed him to a stressful working environment, which caused his
stress-related depression/anxiety, and resulted in his inability to work for
the council.
The court dismissed the claim. It found that the incidents complained of did
not amount to bullying, and the council had not breached the duty of care that
it owed to Barlow. Furthermore, it was not reasonably foreseeable that he would
suffer psychological injury as a result of work-related stress.
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The court accounted for the fact that Barlow had appeared unflappable to his
managers and had not complained about his workload, or mentioned his stress.
Furthermore, he was aware of Broxbourne BC’s counselling service, but had not
made use of it.
The court applied guidelines given in the Sutherland v Hatton case. It
highlights that it is usually the worker’s burden to inform employers of any
risk to their psychological health, before the employer’s duty to take action
is triggered.
