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Issue 5 (November 1996)
New ruling on public admin staff and TUPE
Same rights for temporary staff
EAT deducts half invalidity benefit
Injunction hits the buffers
Court condemns abuse of appeal
Cases head for the ECJ
EAT adds another twist
Protection when only part transfers
Protective awards "made worthless"
Same rights for temporary staff
Brown v Chief Adjudication Officer (Court of Appeal, 10 October 1996)
Employers who think temporary staff have few employment rights may find they do have the same rights as permanent staff to things like proper notice and full unfair dismissal rights.
Ms Brown was employed on a day to day contract. She worked from September 1991 until June 1992 on a day-to-day basis, working not less than 24 hours in each week over that period. On 21 June 1992 she injured her neck at work and did not work again until December 1992.
She was denied Statutory Sick Pay because as soon as she was unable to work her daily contract ended. Entitlement to Statutory Sick Pay ends when the employment expires or is brought to an end, because of section 153(2)(c) of the Social Security Contributions and Benefits Act 1992.
The Court of Appeal overturned the refusal of SSP, saying section 153(2)(c) is subject to the provision now contained in section 86(4) of the Employment Rights Act 1996. This says that when a person has been employed for three months and is employed on a fixed term contract of one month or less, the contract shall be treated as if it were for an indefinite period.
Ms Brown had been employed for more than three months. She was on a daily contract - a fixed term of less than a month. This meant her contract should be treated as indefinite. It could only be terminated by the employer giving the statutory minimum notice (in her case one week). Notice had not been given, so the employment continued. This means that section 86(4) of the ERA applies whenever it is necessary to establish if employment has terminated for a statutory claim and where the employee is on a fixed contract of less than a month but has more than three months' service. It illustrates the impact of this provision and the potential implications for employers who seek to minimise rights but instead discover that employees are treated as on indefinite contracts.
This has interesting consequences for employers who make short extensions to fixed term contracts for existing employees. If this is regarded as a new contract, not an extension, the employer will have an employee who is entitled to proper notice and full unfair dismissal rights.
EAT deducts half invalidity benefitRubinstein v McGloughlin  IRLR 557
An industrial tribunal can deduct half the value of invalidity benefit received from compensation awarded for unfair dismissal says the Employment Appeal Tribunal.
Miss McGloughlin was dismissed from her job as a sales assistant. After losing her job, she suffered from anxiety and depression and was unable to work. She received state invalidity benefits.
The IT found the dismissal was unfair due to the employer's failure to follow a fair procedure and, as a consequence of being accused of theft by her employers, Miss McGloughlin was unable to go to work or to seek employment. In calculating her compensatory award the tribunal deducted in full the amount of benefits she received due to her ill health. She appealed to the EAT.
Invalidity benefit is not covered by the Recoupment Regulations 1977, which only provide for the recoupment of Unemployment Benefit and Supplementary Benefit (now Income Support). The EAT considered the case law on common law damages and the deductibility of "insurance type" benefits (including invalidity benefit) at 50%.
They then looked at Section 74 (1) of the Employment Protection (Consolidation) Act 1978 (now s.123 of the Employment Rights Act). This provides that "the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances" and constitutes its own code for the assessment of compensation and should not be assumed to be equivalent to the damages for breach of contract.
The EAT decided that in the case of invalidity benefit, which is not a pure "insurance" payment, fully funded by the employee's contributions, to produce a "just and equitable" solution half the invalidity benefit received should be deducted.
Injunction hits the buffers
Intercity West Coast Ltd v RMT  IRLR 583
The Court of Appeal blocked an attempt to use the break up and privatisation of the railways to muddy the water over who gets balloted for industrial action. The appeal court lifted an injunction preventing industrial action by RMT members.
RMT were in dispute with Intercity West Coast Ltd (ICWC), a wholly owned subsidiary of British Railways Board operating out of Manchester Piccadilly Station.A second wholly owned subsidiary of BRB, North West Regional Railways Ltd (NWRR), also operated out of Manchester Piccadilly. The two subsidiaries held leases on different buildings around the station. RMT balloted members at Manchester Piccadilly employed by both companies.
ICWC challenged the ballot saying their staff should have been balloted separately from staff employed by NWRR as the two company buildings were different places of work. Section 228 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires separate ballots for members who have "different places of work". Section 228 (4) defines place of work as "premises occupied by [the] employer at or from which [the employee] works". ICWC argued that the place of work for their staff was not the station but the individual building they leased. Reference was made to the narrow definition of "occupation" used in property law, an argument accepted by the High Court which granted an injunction.
The appeal court overturned this view, holding that Section 228 should be construed in the context of legislation dealing with industrial relations and the conduct of Trade Unions. It was not relevant, said the court, that in other areas of the law "occupation" might be construed more narrowly.
Court condemns abuse of appealClayton v Hereford and Worcester County Council and others
Hereford and Worcester Fire Brigade were accused of abusing the appeals process by trying to get a re-hearing of a sex discrimination case they lost at an Industrial Tribunal. Clayton shows that such a course is condemned by the courts and could leave employers having to pay the full costs of the complainant.
Tania Clayton was subjected to a catalogue of abuse during almost five years of service as a Fire Fighter with Hereford and Worcester Bridgade. She complained to an IT of sex discrimination and victimisation and after a 23 day hearing the tribunal unanimously upheld her complaints.
Her employers and the two Sub Officers sued personally appealed. They claimed the IT had got the law wrong on sex discrimination and victimisation; had wrongly exercised its discretion to allow complaints relating to incidents which occurred outside the three month time limit had wrongly found that certain acts complained of were continuing acts extending over a period; had wrongly allowed expert evidence from a Consultant Psychiatrist on the effects of the abuse on Ms. Clayton; the tribunal Chairman was biased and, finally, all the tribunal's findings of fact were "plainly perverse decisions".
The EAT unanimously rejected the entire appeal saying the grounds of appeal were "an abuse of the whole Appeal process" and "an attempt to secure a re-hearing of the whole case".The EAT said it wanted a full explanation of the reasons why the Brigade retracted their original admission of fault and fought the case for 23 days before appealing when they hear any application by Ms Clayton for the costs of fighting the appeal. The EAT said that a senior Brigade Officer remark to staff that "the good news is that you are getting another member of the watch" and "the bad news is that the new member of the watch is a woman", was capable of having detrimental consequences for Ms Clayton. The EAT rejected a submission that calling Ms Clayton "a stupid fucking cow" was not gender neutral and was a discriminatory comment. They also rejected the criticism that the tribunal's decision was perverse.
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