First case of restriction of proceedings order made by EAT

Attorney-General v Wheen, 2000, IRLR 461, EAT

Over a period of time, Wheen had instituted 13 separate sets of proceedings (against various persons) before employment tribunals, all of which failed. A number involved allegations of discrimination.

In some cases, the tribunal had commented that the proceedings were vexatious or frivolous; in others, because the tribunal considered he had no reasonable prospect of success, it made orders requiring Wheen to pay a deposit as a condition of being permitted to proceed. When so ordered, he had not taken the matter further.

The EAT held that Wheen had “habitually and persistently and without any reasonable ground instituted vexatious proceedings before the tribunals”. On this basis, the EAT made a restriction of proceedings order for the first time under section 33(1) of the Employment Tribunals Act 1996.

The EAT stated that it acted with caution in so doing, accepting that discrimination was by its nature more likely to recur to a particular individual. However, Wheen’s persistent and unfounded claims were denying time to parties with real grievances.

Agency worker held to be employee of the agency’s client

Motorola v Davidson (1) and Melville Group (2), 2000, IDS Brief 670, EAT

Davidson noticed that Motorola was advertising for staff. As a result, he was taken on by MCG, an employment agency, and placed at Motorola as a temporary worker working under a contract for services with MCG. The contract stated that Davidson was obliged to attend work at Motorola’s request. Davidson worked for Motorola for just over a year and was then dismissed. Davidson brought a claim for unfair dismissal against Motorola.

The right to claim unfair dismissal is restricted to “employees”, defined by section 230 of the Employment Rights Act 1996 as someone who works under a contract of services or of apprenticeship. The tribunal found that Motorola was Davidson’s employer.

Motorola appealed on the basis that it had insufficient control of Davidson to be his employer. The EAT found that Davidson’s contractual obligations to MCG showed that Motorola had control. Indeed, MCG and Motorola both had control over him. The appeal was therefore dismissed.

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