Managing employees/workers
The Court of Appeal gives important guidance on how far tribunals need to go in exploring the circumstances of a claim. Plus cases on protected disclosure, redundancy selection, discrimination by an agent, working time exemptions and constructive dismissal.
When does Tupe apply to outsourcing situations? There are few more complex and volatile areas of employment law, and a recent decision by the European Court of Justice may only add to the confusion.
A person who found work through an employment agency and remained in that same job for more than two years was not employed by the agency, holds the Court of Appeal in Montgomery v Johnson Underwood Ltd.
The principle of equal pay under Community law does not require that women should continue to receive full pay during maternity leave, holds the European Court of Justice in Gillespie and others v Northern Health and Social Services Board and others.
The question of whether the whole or a majority of a transferee contractor's workforce is taken on by the putative transferor cannot be determinative of whether or not there has been a relevant transfer of an undertaking under the EC Business Transfer Directive and the domestic Transfer of Undertakings Regulations, holds the EAT in Cheeseman and others v R Brewer Contracts Ltd and Onyx (UK) Ltd v Cheeseman and others.
In Motorola Ltd v Davidson and another, dealing solely with the issue of control, the EAT holds that a client of an employment agency had sufficient control over the worker assigned to it to sustain a finding that it was in fact the employer of the worker.
In Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, the ECJ rules that all of the time spent on call by teams of doctors providing primary care at health centres was "working time", within the meaning of the EC Working Time Directive, if they were required to be at the health centres.
Pregnant cabin crew who volunteered for ground duties to which they were deployed were not offered "suitable alternative work" within the meaning of s.67(2) of the Employment Rights Act 1996, because the terms and conditions applicable to that alternative work were substantially less favourable than the corresponding terms and conditions for their normal work, holds the EAT in British Airways (European Operations at Gatwick) Ltd v Moore and another.
Employees whose contractual working hours were 39 hours per week but who, in practice, were required to work six hours' overtime made available to them to the extent of 45 hours per week were not guaranteed that overtime, so holds the EAT in Spence and others v City of Sunderland Council.
The principal reason for the dismissal of a transferor's employees, purportedly on the grounds of redundancy, was the impending transfer of the undertaking, holds the EAT in Kerry Foods Ltd v Creber and others.
Employment law cases: HR and legal information and guidance relating to managing employees/workers.