Case roundup

This
week’s case roundup

Contractual
right to delegate personal services
MacFarlane & another v Glasgow City Council, IDS Brief 678, EAT

MacFarlane
was a sports instructor. Initially, she was responsible for her own tax and
National Insurance contributions but when she started working longer hours the
council made PAYE deductions.

Although
MacFarlane was engaged to teach sessions at specific times she was paid only
for the sessions actually worked. If she was unable to work, she could arrange
for a replacement instructor from the council’s approved list who would then be
paid by the council direct.

MacFarlane
was not entitled to holiday or sick pay nor did she enter into any written
contract with the council, although she received its standard letter relating
to the terms on which instructors were engaged. The council issued new terms
and classified the instructors as self-employed. MacFarlane resigned and claimed
she had been constructively and unfairly dismissed.

At
a preliminary hearing, the tribunal held MacFarlane was self-employed because
an essential element of an employment contract, namely the obligation of
“personal service” was lacking. MacFarlane successfully appealed. The EAT held
MacFarlane’s right to arrange a replacement in limited circumstances was not
incompatible with a contract of employment.

Failure
to make reasonable adjustments
Fu v London Borough of Camden unreported January 2001 EAT

Following
an accident at work in 1993 Fu, a housing officer, could only walk with the aid
of a walking stick. She had another accident and was off work for a year. When
her condition deteriorated, she was provided with a special chair. She
subsequently suffered another injury and was on sick leave from the summer of
1997.

In
May 1998 the council offered her ill-health retirement or dismissal and she
accepted the former. Her tribunal claim for disability discrimination was
unsuccessful. The tribunal held the council was justified in offering
ill-health retirement because on the medical evidence adduced, Fu was
permanently incapable of performing her contract even if the requirement to
make home visits was removed.

The
EAT allowed Fu’s appeal. The tribunal had failed to consider if the council
could have made reasonable adjustments to retain Fu in some other capacity or
to make any adjustments before offering dismissal. Accordingly Fu had suffered
pre-dismissal discrimination pursuant to section 5(2) of the Disability
Discrimination Act.

By
Eversheds

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