Managing employees/workers
An Industrial Tribunal's decision as to whether a contract is a contract of employment can only be overturned on appeal if the Tribunal misdirected itself in law or reached a perverse decision on the facts, the majority of the Court of Appeal concludes in the widely publicised case of O'Kelly and others v Trusthouse Forte Plc.
Where a contract of employment does not specify a limit to the duration of sick pay, it does not continue indefinitely but only for a reasonable period, holds the EAT, in Howman & Son v Blyth. However in deciding what is a reasonable period, Tribunals should consider the limit specified in a national agreement in the relevant industry.
One of the grounds on which an interval between two contracts of employment does not break continuity is that the employee is absent from work due to a temporary cessation of work. In a decision that will benefit many teachers and temporary workers, the House of Lords holds in Ford v Warwickshire County Council that it is not relevant that the interval was anticipated and lies between two fixed term contracts. The test in all cases is whether the gap is short In relation to the duration of the two contracts.
In Ross v Delrosa Caterers Ltd [1981] ICR 393 EAT, the Employment Appeal Tribunal held that, although continuity of employment is broken where a redundancy payment has been paid to an employee and the contract of employment is renewed or the employee re-engaged under a new contract, this is the case only if the redundancy payment is a statutory redundancy payment.
In Rowan v Machinery Installations (South Wales) Ltd [1981] IRLR 122 EAT, the EAT held that the Industrial Tribunal had erred in finding that the appellant's period of continuous employment had been broken when his contract of employment had been terminated by the respondents and he was paid an amount calculated in accordance with the statutory redundancy payment provisions, in circumstances in which there was no liability on the respondents to make a redundancy payment.
In Savage v J Sainsbury Ltd [1980] IRLR 109 CA, the Court of Appeal held that where a disciplinary procedure provides a right of appeal against dismissal and treats the employee as suspended without pay until the appeal is heard, the effective date of termination if the appeal is rejected is when the dismissal initially took effect and not when the appeal was rejected.
S.61 of the Employment Protection Act provides a right for employees who have been given notice of dismissal by reason of redundancy to be allowed reasonable time off during working hours to look for new employment or make training arrangements. In Dutton v Hawker Siddeley Aviation Ltd, the Employment Appeal Tribunal has its first opportunity to consider this section. Several principles emerge from the EAT's decision.
In Corner v Buckinghamshire County Council, a time off for public duties case, the EAT holds the Industrial Tribunal can do no more than declare that the employer had failed to allow the employee to take reasonable time off and, if appropriate, make an award of compensation.
In Massey v Crown Life Insurance Co [1978] IRLR 31 CA, the Court of Appeal held that, whilst the parties to a contract cannot alter the truth of their relationship by putting a different label upon it, when it is ambiguous as to whether the employment is under a contract of employment or a contract for services, the terms of an agreement between the parties may be decisive as to what is the legal relationship.
Rules which lay down standards of dress and appearance for both women and men are unlikely to constitute unlawful discrimination on grounds of sex, even if they impose different requirements on women (such as prohibition on wearing trousers) than on men, based on the difference in sexes. This is the principle which emerges from the recent EAT case of Schmidt v Austicks Bookshops.
HR and legal information and guidance relating to managing employees/workers.