This week’s roundup
Fixed-term contracts and redundancy rights
Jenvey v Australian Broadcasting Corporation, IDS Brief 710, High Court
ABC employed Jenvey under a series of fixed-term contracts and when a
dispute arose about him being required to work part-time, he brought a tribunal
complaint to obtain written particulars of his employment. Those proceedings
were settled on terms that Jenvey would continue working full-time.
In September 1998, Jenvey was given notice that his contract would not be
renewed because his full- time position was no longer required. Jenvey
successfully claimed he was entitled to a redundancy payment and that he’d been
victimised for his earlier assertion of his statutory rights (which the
tribunal found to be the principal reason for the dismissal).
Taking into account his enhanced, contractual redundancy entitlements
Jenvey’s losses were around £58,000, but the tribunal had to apply the
statutory cap, then £12,000.
Jenvey brought High Court proceedings for ABC’s breach of contract. He
argued there was an implied term that in the event of a redundancy situation,
ABC could not dismiss him for another reason simply to deny his entitlement to
contractual redundancy benefits unless there was good cause.
His situation was analogous to those cases where an implied term restricted
an employer’s ability to terminate employment of someone on long-term sick
leave if dismissal resulted in the loss of permanent health benefits. The court
agreed and damages would be assessed on the basis of Jenvey’s entitlement to
the enhanced redundancy payment.
Risk assessment required
Hardman v Mallon (t/a Orchard Lodge Nursing Home), All ER (D) 439, June
Hardman’s job involved heavy lifting, but Mallon did not undertake a risk
assessment as required under Health & Safety Regulations when Hardman
announced her pregnancy. She brought a tribunal claim, arguing that failure to
undertake a risk assessment constituted sex discrimination under section 1 of
the Sex Discrimination Act 1975.
The tribunal found there had been no discrimination because Mallon had not
treated Hardman any differently to a man, or a woman who was not pregnant. The
tribunal held that section 1 was incapable of being interpreted to widen the
definition of discrimination to encompass an employer’s failure to treat a
woman more favourably than a man. Hardman appealed on the grounds that the
tribunal had interpreted the SDA too narrowly.
The appeal was allowed. A woman’s biological condition during and after
pregnancy had to be protected. One way was by carrying out a risk assessment.
Failure to do so impacted disparately on pregnant workers and amounted to
discrimination. The tribunal’s failure to construe the SDA in this way meant it
failed to give effect to Council Directive 92/85, whose purpose was to
introduce measures to encourage improvements in the health and safety at work
of pregnant workers.