Case round upOn 1 Jul 2004 in Personnel Today Related posts:No related photos. Previous Article Next Article Comments are closed. Our resident experts at Pinsents bring you a comprehensive update on all thelatest decisions that could affect your organisation, and advice on what to doabout themLennon v Commissioner of Police of the Metropolis, Court of Appeal Employer liable for negligent advice of co-employee * * * * Lennon transferred from the Metropolitan Police Service (MPS) to theRoyal Ulster Constabulary (RUC). When he asked a personnel officer whethertaking time off before starting at the RUC would affect his allowances, he wastold that there would be no effect. Some months after the transfer, Lennondiscovered that the period of time between his jobs was treated as a gap inservice and that his housing benefits were adversely affected. Had he made awritten application for unpaid leave, the problem would not have arisen. TheCourt of Appeal held that it was fair, just and reasonable that theCommissioner should be held to owe a duty of care to Lennon to arrange andorganise the transfer, including the giving of advice, so as to ensure that hedid not lose his allowances. Key pointsThe Court found that the personnel officer had assumed responsibility forthe transfer procedure and Lennon was entitled to rely on this being handledwith due skill and care. In particular, the personnel officer either had, orhad access to, specialist knowledge regarding the impact of transfers andallowances. Lennon had not been advised to take legal advice or to speak to histrade union and had been led to believe that the transfer could be left in thehands of the personnel officer who knew, or ought to have known, that Lennonwould rely on her advice. The Police Personnel Manual did not warn thatallowances would be affected by gaps in service. The MPS was liable innegligence for the economic loss of the cessation of Lennon’s housingallowance, which amounted to £44,000. What you should do – Beware of staff making assurances that they will deal with something thatmay be outside their area of expertise. Ensure you have job descriptions anddetailed procedures in place so all staff know their remit of responsibility. – Be wary when dealing with matters for junior employees. If a very juniormember of staff suffers economic loss due to a failure by another member ofstaff, it is likely that a court would find in their favour on the basis thatthe employer has assumed responsibility for him or her. – Consider advising employees to take advice from their trade unions Lane Group Plc v Farmiloe, EAT Health and safety requirements and disability discrimination * * * * Mr Farmiloe suffered from the skin condition psoriasis and waslimited in the type of footwear that was suitable for him. In 1996, following arisk assessment, Lane Group adopted a policy that all people working in itswarehouse were required to wear safety footwear. As this protective footwearexacerbated Farmiloe’s condition, he was permitted to wear his own shoes. In 2001, a health and safety officer carried out a routine health and safetyinvestigation and objected to the footwear exception made for Farmiloe,remarking: “You cannot opt out of health and safety.” On herrecommendation, Lane Group conducted a medical assessment of Farmiloe to ensurehe had appropriate footwear that was compliant with its health and safetypolicy, while not exacerbating his medical condition. Pending an examination bythe occupational health expert, he was suspended on full pay. The assessment determined that Farmiloe required slip-on shoes that could beslipped off in order to allow fresh air to ventilate his feet and protectiveshoes made of sufficiently thin fabric to keep his feet free from sweating. Itwas decided that if the matter could not be resolved, alternative employmentshould be sought for Farmiloe in areas where protective footwear was notrequired. Between October 2001 and February 2002, Lane Group made a number of attemptsto obtain suitable protective footwear for Farmiloe, including the productionof a bespoke pair of shoes. However, these were unsuitable. There was also noalternative position available in the organisation not requiring the wearing ofpersonal protective equipment. Farmiloe was dismissed. His complaint ofdisability discrimination failed in the EAT. Key pointsFarmiloe alleged that Lane Group failed to make adjustments to its stringenthealth and safety policy and should have approached the council to obtain anexception in special circumstances such as these. The EAT held that health and safety legislation takes precedence over theprotection against disability discrimination provided that all reasonable stepshave been taken to accommodate the particular needs of the individual worker.In this case, the employer had done all it could to accommodate the employee’sdisability, including medical assessments and the attempt to make bespoke footwear,which was undertaken at the expense of the company. What you should do – Be aware that employees cannot accept risks (eg by refusing to wearprotective clothing) if this would breach health and safety legislation. – Where an employee’s medical condition prevents the wearing of safetyequipment, you should conduct a full risk assessment, including considerationof alternative employment and specialist equipment, to comply with health andsafety legislation. Ultimately, if it is not possible to accommodate theemployee’s condition and comply with health and safety legislation, you candismiss. Hardy v Polk (Leeds) Limited, EAT Duty to mitigate applies to notice pay * * * * Ms Hardy worked for Polk (Leeds) Limited for seven years until shegave eight weeks’ notice after accepting a post with a competitor at a highersalary. When she refused to sign a confidentiality agreement, Polk summarilydismissed her. She started her new job earlier than she intended, but for afour-week period she had no earnings from either Polk or her new employer. When Hardy claimed for unfair dismissal, Polk conceded liability. Thetribunal rejected Hardy’s argument that she should be compensated for the fullseven weeks of her statutory minimum notice period, even though she was onlyout of work for four weeks. This was upheld by the EAT. Key pointsThe EAT confirmed in this case that a compensatory award for unfairdismissal is subject to the duty to mitigate and cannot be used to penalise theemployer. This applies equally to loss during the notice period. Unfairdismissal compensation is designed to compensate the employee for loss. Theduty to mitigate means that an employee must take reasonable steps to obtainalternative employment. If the employee suffers no loss, he or she recoversnothing over and above the basic award for unfair dismissal to which they areentitled in any event. What you should do – Remember that where an employee starts alternative employment at the sameor a higher salary in the course of the notice period, you may be entitled totake that into account and pay less notice pay. This could be relevant insettlement negotiations – However, beware that if there is a payment in-lieu of notice clause in thecontract of employment that is expressed as non-discretionary (that is, theemployer does not have a choice as to whether it will exercise it or not), thenthe employee should be paid his or her full notice money. Redrow Homes (Yorkshire) Limited v Wright, Court of Appeal Definition of worker under the Working Time Regulations * * * The Court of Appeal was reviewing two cases in which the applicantsworked as bricklayers for approximately six months on two of Redrow’s sites.Both were engaged on Redrow’s standard terms. They were paid weekly into theirbank accounts. Redrow provided bricks, forklift trucks and drivers andscaffolding, although the applicants provided their own hand tools. Subject tocomplying with Redrow’s building programme, they could regulate their hours andwork to suit themselves. The applicants did not work under a contract ofemployment, nor were they clients or customers of Redrow. The applicants arguedthat they had contracts to perform work personally. Redrow argued that theywere not workers as they were not obliged to do the work themselves and reliedon a contractual term that the contractor must supply sufficient labour tomaintain the rate of progress laid down by Redrow. The Court of Appeal dismissed the appeal by Redrow Homes against theEmployment Appeal Tribunal’s decision that the applicants were workers. Key pointsRelevant considerations were: – Although stated in the terms and conditions, Redrow did not seek toenforce a condition that the applicants deposit a current health and safety policyand relevant VAT registration details with Redrow – Although Redrow claimed that the work could have been done by anyone, itwas found that the items of work specified were not beyond the capacity of themen to do it themselves. – Each individual doing the work was paid directly for the work. – Reasonable people, in the position of these parties and having all thebackground knowledge that would reasonably have been available to them at thetime of the contract, would not have decided that a condition that stated thata competent foreman or charge hand should be on hand at all times was intendedto apply. The Court of Appeal held that the applicants were workers as there was a”mutuality of obligation” or a requirement for “personalprovision of services”. It upheld the tribunal’s decision that it was the”intention and understanding of the parties that all the applicants wouldundertake to work personally”. What you should do – Employers should be aware that even if the terms and conditions of individualsrefer to self-employment, it is reasonable on the facts to deduce that there isa mutuality of obligations or a personal provision of services then theindividuals will be held to be workers. Case of the month by Pam SidhuCollective agreements can prevent redundancy dismissalKaur v MG Rover Group Limited, 2004 High Court Collective agreement prevented redundancy dismissal * * * * * Mrs Kaur’s contract of employment stated that her employment wassubject to the terms and collective agreements made from time to time with therecognised trade unions. Two such collective agreements had been agreed, in 1992 and 1997. The 1992agreement stated that future decreases in manpower would be achieved throughredeployment, natural wastage, voluntary severance or early retirement. The1997 agreement repeated this principle, adding “there will be nocompulsory redundancy”. In 2003, Kaur was one of approximately 100 employees threatened withcompulsory redundancy. She successfully brought High Court proceedings seekinga declaration that she had a contractual right not to be made redundant giventhe statements in the collective agreements. Key pointsThe employers argued that the job security clauses in the agreement weremerely general principles and not appropriate for incorporation into individualcontracts and that, in any event, the notice provision in the employmentcontract allowed them to terminate for any reason on notice. The Court held that the 1992 agreement was not incorporated into theemployee’s contract and essentially contained statements of policy that werenot apt for incorporation into individual contracts. However, the specificstatement in the 1997 agreement that “there will be no compulsoryredundancy” changed that position, particularly as it was not only morespecific but also part of an overall deal requiring staff changes such as flexibleworking, a level of de-manning and the avoidance of industrial action. Thosespecific elements of the agreement could have contractual effect. The court also ruled a contractual right not to be dismissed on specificgrounds is not overridden by a general power to terminate. Accordingly, the Court declared that Kaur had a contractual right not to bemade redundant. This case dramatically illustrates the problems that can arise where theemployment relationship is regulated by collective agreements. What you should do – Be careful about the content of statements in collective agreements asthese could be incorporated into the contract of employment. – Make clear in the contract of employment that only specified clauses of acollective or other agreement apply and no others. This could help to avoidother clauses – particularly those in aspirational language – being unwittinglyincorporated. – Review your existing collective agreements to identify problems.Renegotiate them if necessary to eliminate or minimise the risk.