Case roundup

This week’s case roundup

Action short of dismissal
Whillier v London Borough of Southwark, unreported May 2001, CA

Whillier was both an employee of Southwark and a trade union official, for
which she was given paid time off to carry out her trade union duties.

Southwark offered to promote Whillier but made the consequential pay rise
subject to her giving up her trade union activities. In response to this
conditional offer, Whillier brought a successful claim that she had been
subjected to "action short of dismissal" (under section 146 of the
Trade Union and Labour Relations (Consolidation) Act 1992) and that she had
suffered sex discrimination.

Southwark successfully appealed the finding that Whillier had suffered sex
discrimination, but the finding that she had suffered "action short of
dismissal" was upheld.

On appeal, the Court of Appeal pointed out that the word "action"
in section 146 must be given a wide interpretation and can apply to omissions
as well as acts. Accordingly, the tribunal was correct to find that Southwark’s
conditional offer was an "action" for the purposes of section 146.

Employment status of casual workers
Stevedoring and Haulage Services Ltd v Fuller and others, IDS Brief 687,
CA

Fuller was made redundant by Stevedoring in 1995 but in 1996, to meet
Stevedoring’s need for casual labour, was re-employed on "an ad hoc and
casual basis". Stevedoring’s letter to Fuller expressly stated there was
no mutual obligation for it to provide or for Fuller to accept work and that
Fuller was not an employee and would be paid only for the hours worked. For
administrative purposes, tax was deducted under the PAYE scheme.

Until 1999, Fuller regularly and exclusively worked for Stevedoring. He was
given work in priority of others supplied by an agency.

In 1999, Fuller applied to the tribunal for written particulars of
employment. The tribunal held that he was an "employee" and that
implied terms conferred sufficient mutuality of obligation to establish a
contract of employment. Fuller was thus employed under an
"overarching" contract of service and entitled to the particulars.
The EAT upheld this decision.

Stevedoring successfully appealed. The Court of Appeal held that the
tribunal was wrong to imply mutuality of obligation in contradiction to the express
term which said none existed. Neither business efficacy nor necessity required
the implication of contractual terms. It was also held that the original
contract had not been varied by conduct, because nothing had changed during the
period 1996 to 1999. The original terms had been agreed in successive years.