On appeal

Continuing a regular series spelling out the implications of important cases
which have been heard recently in the appeal courts. Sarah Lamont looks at the

Casual workers
Stevedoring & Haulage Services v Fuller, CA 9.5.01

Fuller accepted casual employment as a docker for SHS in January 1996. The
offer letter stated that there was no obligation on SHS to provide work, nor on
Fuller to accept it. Until 1999 Fuller worked for SHS under its control and on
a reasonably regular basis. He then applied to an employment tribunal for a written
statement of particulars of what he alleged to be his employment with the

The tribunal held Fuller was an employee under a global contract of
employment. This was upheld by the EAT which said that, despite the express
terms in the contract documentation to the effect that there was no obligation
to offer or accept work, the conduct of the parties implied different terms
into the contract which could override these express terms.

The implied terms reflected the reality of the agreement between the parties
and indicated the company would offer a reasonable amount of work to Fuller and
that he would make himself available for work on at least a reasonable number
of occasions.

The Court of Appeal disagreed. While the parties’ intentions can be inferred
from their conduct, the implied obligation to offer and accept a reasonable
amount of work could not be incorporated into a contract where it would be
contrary to express terms in that contract. Further, as global contract of
employment cannot exist unless there is an irreducible minimum of obligation to
offer and accept work between the parties, and no such term could be implied in
Fuller’s case, the appeal was successful.

Sex discrimination
Allonby v Accrington and Rossendale College, CA 23.3.01

Allonby was employed as a part-time lecturer by the college from 1990 to
1996 paid on an hourly rate. Following a change in legislation requiring the
college to pay part-time lecturers equivalent benefits to full-time lecturers,
the college stopped renewing part-time lecturers’ contracts of employment and
instead, took them on as sub-contractors, via an agency (ELS) to save money.

Allonby claimed that the dismissal was indirectly discriminatory on grounds
of sex. She also claimed that: the college had discriminated against her
following her termination by denying her benefits available to salaried
lecturers under s9 Sex Discrimination Act; that ELS was required to pay her pro
rata equivalent benefits to a male full-time lecturer at the college; and (against
the Secretary of State) that the fact that, as a contract worker she was
excluded from the Teachers’ Pension Scheme, was unlawful discriminatory
treatment. The employment tribunal and the EAT held that her dismissal was
indirect sex discriminatory but was objectively justifiable and that the rest
of her claims failed.

The Court of Appeal agreed that the dismissal was discriminatory. The
college had applied a requirement for continued employment that the employee
must be employed either on a full-time basis or under a contract that conferred
proportionate benefits to a full-time contract (that is, salaried as opposed to
hourly paid employment). Therefore hourly paid employees had been disadvantaged
and there were more female hourly paid staff than male.

However, the tribunal should not have accepted the college’s justification
for the discrimination, so that claim was remitted for a further hearing.

In relation to the other claims, the Court of Appeal held that s9 SDA
(requiring equal treatment) can apply as between a contract worker and an
employee (not just as between employees) so long as they are working for the
same principal.

The case was therefore remitted to see if in fact there was a breach. The
claim against ELS raised the issue of whether Allonby, as an employee of ELS,
could compare herself with a male comparator employed by the college, given
that the Equal Pay Act requires comparators to be in the "same

The court referred was necessary to the European Court on the basis that
Article 141 of the Treaty of Rome does not contain such a constraint over the
comparator’s employment. The court also referred the question of whether
Article 141 would allow Allonby to claim access to the Teachers’ Pension

Frustration of employment contract
Collins v Secretary of State for Trade and Industry, EAT 16.5.01

Collins worked for a transport company. In 1996 he was injured at work and
was absent thereafter, but remained on the company’s books until the beginning
of 1999, at which stage it asked him if he wanted to take a redundancy payment.
Collins chose to stay on their books instead but shortly afterwards the company
went into receivership. Collins applied for a redundancy payment from the
Secretary of State but the payment was rejected on the basis that Collins’
contract of employment had been frustrated by his long-term illness so that he
was not an employee.

Both the employment tribunal and EAT held that the contract had been
frustrated. Using the definition of some reasonably unforeseeable event
"which makes the contract impossible or unlawful to perform…". The
effect of frustration is that the contract terminates without a dismissal by
the employer or a resignation by the employee. This finding was notwithstanding
that both parties had treated the contract as continuing.

Pension compensation
Clancy v Cannock Chase Technical College, 2001, IRLR 331

Clancy was employed as a senior lecturer until he was made redundant. He
claimed unfair dismissal and the employment tribunal found in his favour.
Clancy claimed, however, that the compensation awarded failed properly to take
into account his loss of pension and he appealed.

The EAT upheld his appeal. The tribunal had computed the figure by reference
only to the employer’s weekly contributions, on the basis of the guidelines
used by tribunals (Industrial Tribunals – compensation for loss of pension
rights). The EAT suggested the guidelines needed updating and held that in the
present case the tribunal had been wrong in applying the guidelines to Clancy’s
pension scheme because it gave a figure which fell far short of compensating
for his loss.

Sarah Lamont is a partner at Bevan Ashford

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