Case roundup

This week’s case roundup

No paid holiday for the transport sector
Bowden and others v Tuffnells Parcel Express, unreported, October 2001
ECJ

Bowden and her colleagues were part-time clerical workers for Tuffnells, a
road haulage company, but unlike full-time colleagues had no contractual right
to paid holiday. In 1999, Bowden brought a tribunal claim for paid annual
leave, which was dismissed because the Working Time regulations 1998
(implementing the Working Time directive) applied a blanket exclusion to
workers in the road transport sector irrespective of the job.

Bowden appealed to the EAT which referred the matter to the ECJ to determine
whether the directive excludes all workers in the road transport sector,
including, non-mobile office staff.

The ECJ held that it did. By specifically excluding the "air, rail, road,
sea, inland waterway and lake transport" sectors from the directive the
community legislature had clearly shown its intention to exclude those sectors
of activity as a whole, rather a specific activities, such as mobile or
non-mobile activities, within that sector.

Difficulty with establishing sex discrimination
Wheeler and another v Durham County Council, IRLB 672, CA

Following a reorganisation of the council departments a section
head/management vacancy arose. Wheeler and Newton, both female, and Fenwick, a
male, applied. The union-approved selection procedure consisted of a first and
second interview.

Fenwick was selected as the top candidate in the first interview and was the
most confident in the second, Wheeler was neither confident nor willing to
embrace change and Newton interviewed poorly. Fenwick was appointed, despite
being the least experienced.

Wheeler and Newton unsuccessfully claimed sex discrimination but
successfully appealed to the EAT which remitted the case for a rehearing. The tribunal
had failed to ask certain questions, such as why Fenwick had more time at both
interviews, why "no person specification" had been given and why
references had not been taken up.

The council successfully appealed to the Court of Appeal. While the tribunal
must make conclusions on the factual issues essential to its decision, it does
not have to explore every issue put before it.

There must be a link between the facts relied on and the discrimination
complained of before an explanation is required.

Note: A remedies hearing in the case of Bennett v Essex County Council,
which involved a black school teacher who was racially abused by pupils has now
been heard. Bennett was awarded more than £45,000.

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