Link to newsletter - Tanfield Chambers

More documents

Recommendations

Info

Sarah Stanzel Called in 1999, Sarah practises exclusively in employment law and regularly appears before the ET and EAT in a range of matters for both Claimants and Respondents. She has also appeared in the Court of Appeal including acting as junior counsel for the claimant in GAB Robins v Triggs [2008] IRLR 317. She increasingly receives instructions in cases with a cross-border or international element. Her languages include German, French, Italian, Spanish and Portuguese and she regularly advises clients both in the UK and abroad in their respective language, having undertaken work placements in law firms in Frankfurt, Paris, Rome, Madrid and Lisbon. She has recently travelled abroad to lecture before the Italian and Spanish Employment Lawyers Associations and at the Annual Conference of the European Employment Lawyers Association. RECENT MITIGATION DECISIONS In Islam Channel Ltd v Ridley [2009] All ER (D) 89 (Aug), the claimant obtained a freelance job at first better paid than her previous job but by the hearing it was less well paid, total earnings from dismissal to hearing being better than in the old job. The EAT held that past earnings should not be set off against future loss due to the insecure nature of freelance work. In Aegon UK Corp Services Ltd v Roberts [2009] IRLR 1042, the Court of Appeal held that for the purpose of assessing the level of remuneration (in old and new job), pension is part of the remuneration package. In Stuart Peters Ltd v Bell [2009] IRLR 941, the EAT held that the Norton Tool principle applies so that in both direct and constructive dismissal cases, missing notice pay must be awarded in full whether or not the claimant had alternative earnings during the notice period. our authors TC WHERE ARE WE WITH EM Employment status could not be more complicated. A claimant m dismissal claim, a differently defined “employee” or “contract w working time claim under the Working Time Regulations, and a disclosure claim. Laura Robinson and Gemma de Cordova provid the implications. This article considers the practical implications where status is disputed, then the areas visited most often by the case law: attempts to avoid employment status through sham agreements, agency worker cases and contract worker status under the anti-discrimination legislation. PRELIMINARY HEARINGS ON STATUS? DISCRIMINATION Pecuniary loss in discrimination cases is based on putting the claimant into the position he would have been in had the act of discrimination not occurred. In Chagger v Abbey National plc and another [2010] IRLR 47, the Court of Appeal confirmed that this meant the ET had to assess the likelihood that the claimant would have been dismissed in any event. That meant making a reduction proportionate to the chance that the claimant would have been dismissed if redundancy had not been discriminatory (like a Polkey reduction). However, somewhat surprisingly, the Court held that future loss was not necessarily limited to the period during which the claimant would have remained employed had he not been the subject of unlawful discrimination. This is because if he had left the employment voluntarily, he would not have chosen a position with no income and no stable platform from which to find other work. The Court of Appeal also stated that where employees suffer a stigma on the labour market as a result of having brought a discrimination complaint, this can be taken into account when assessing how long it will take them to find another job. As far as injury to feelings is concerned, the Vento scale was recently updated in line with inflation in Da’Bell v NSPCC [2010] IRLR 19, EAT. The lowest band of awards now runs up to £6,000, the middle band from £6,000 to £18,000 and the highest band from £18,000 to £30,000. Meanwhile, in Taylor v XLN Telecom Ltd [2010] IRLR 499, the EAT overturned the ET’s decision not to award compensation in a victimisation claim because the claimant was unaware of any discriminatory intent. They said that both injury to health and injury to feelings should be compensated as they flowed from the employer’s actions, even if the claimant did not know the act was discriminatory. SARAH STANZEL A useful starting point is the very recent guidance on preliminary hearings in Leeds City Council v Woodhouse & Another [2010] EWCA Civ 40, where the Court of Appeal were considering whether the claimant was a contract worker within section 7 RRA 1 following a PHR on that issue in the tribunal. They observed that such a preliminary hearing involved the tribunal making extensive findings of fact. Two concerns were raised. Firstly, the scope of the evidence potentially relevant to the section 7 issue may not be immediately obvious because the tribunal has to examine the terms of the contract and how the contract operated in practice. It would therefore be preferable for the issue to be heard as part of the entire case. Secondly, as the section 7 issue is largely one of fact it should be determined by a full tribunal and not a judge alone. Arguably the concerns raised by the Court of Appeal apply to all cases where employment status is in issue. Extensive evidence must be heard in ‘sham’ cases, ‘agency worker’ cases, and ‘contract worker’ cases under the discrimination legislation, to determine the true relationship between the parties. “... if strict construction is applied “armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship”“ The danger of a Tribunal being too quick to determine the strength of an agency worker’s claim had already been identified by the EAT in Evans v Parasol Ltd & Ors. (Bean J) 23/7/2009. In light of the complexity of the law relating to agency workers and the limited documentation available pre-disclosure, Bean J considered that it would be a bold employment judge who would strike out a claim on the basis of status at an early stage. “ i t t 1Race Relations Act 1976 2Snook v London and West Riding Investments Limited W W W. TA N F I E L D C H A M B E R S . C O . U K
Gemma de Cordova Gemma joined Tanfield as a third six pupil in 2008 and since becoming a tenant in 2009 has become a key junior member in the Employment Group. Gemma has experience of representing a broad range of clients in the Employment Tribunal including insurance backed claimants, small businesses and local authorities. She is also frequently instructed to undertake advisory work and drafting. To date, Gemma’s participation in judicial mediations has resulted in a 100% success rate. She is known for staying calm under pressure and clients appreciate her composed, thorough and common sense approach to her work. When not at work or preparing for work Gemma sings in a choir and also enjoys appearing in courts of a different kind: practising her netball skills in a local ‘Speednet’ league. Laura Robinson Laura joined Tanfield Chambers in March 2010 from 7 New Square, where she had developed a thriving practice in employment law acting for respondents and claimants. She is particularly noted for her straightforward and friendly manner and interacts well with clients. Her varied practice has included regular appearances in the ET and EAT as well as the provision of advocacy training and acting as a legal advisor to the Association of Occupational Health Nurse Practitioners. Laura has provided advocacy and advisory work for a range of clients including such diverse entities as public authorities, large companies and a premiership football club. When she is not working Laura enjoys reading and eating cake. PLOYMENT STATUS? ust fall within the definition of “employee” to bring an unfair orker” to bring a discrimination claim, “worker” to bring a special extended definition of “worker” to bring a protected e a guide to the many recent decisions on status and consider ‘SHAM’ AGREEMENTS Until recently, the ability of a worker to claim that contractual documents were really designed to mask an employment relationship was severely limited by authority saying that it is not a ‘sham’ unless both sides had a common intention to deceive third parties as to the nature of their relationship 2 . However, in both the following decisions, the Court of Appeal overturned EAT decisions expressing reluctance to go behind written agreements. Faced with a potentially long and expensive full tribunal hearing... t may well be more economically viable for Respondents to settle hese cases early, even in circumstances where it appears that here is little prospect of the claim against them succeeding.“ In Protectacoat Firthglow Ltd v Szilagyi [2009] IRLR 365 the Court of Appeal rejected this line of authority. Protectacoat, relying on two written agreements, asserted that Mr Szilagyi was an independent contractor. Mr Szilagyi claimed that the true working arrangements differed from the documentation. In finding he was an employee, Smith LJ stated there was no need for an intention to deceive third parties. She contrasted an agreement between commercial parties, where usually both parties were in a position to require that terms reflect the nature of the agreement, with the field of work where sometimes only one party dictates the terms: “[t]he question is always what the true legal relationship is between the parties... if it is asserted by either party... that the document does not represent or describe the true relationship, the court or tribunal has to decide what the true relationship is”. Autoclenz Ltd v Belcher & ors [2010] IRLR 70 involved a group of car valeters who claimed they were ‘employees’ or ‘workers’ but worked under agreements stating they were “subcontractors” with the right to substitute other workers and having no obligation to work and no guarantee of work. The Court of Appeal found them to be employees, applying Protectacoat. Smith LJ suggested that where there is a dispute the tribunal must examine all relevant evidence including the written term itself, evidence of how the parties conducted themselves in practice and what their expectations were. The assessment must be carried out at two points: both at inception of the contract and at any later stage where evidence shows parties have expressly or impliedly varied the agreement. By contrast with these cases, the Court of Appeal chose to put weight on the actual wording of the contract in another case involving a tri-partite relationship between an employment agency, worker and end user. TRIPARTITE RELATIONSHIPS: EMPLOYED BY AGENCY? In Consistent Group v Kalwak [2008] IRLR 505 Rimer LJ found that clauses in contracts “solemnly agreed in writing” between an agency and immigrant workers negatived an employment relationship, even though the workers argued that they did not reflect the reality of the situation. However, a differently constituted Court of Appeal in Autoclenz expressly disapproved of Rimer LJ’s approach, describing it as “not helpful in all cases”. In addition, in the EAT in Consistent Group, Elias J 3 said that if strict construction is applied “armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship”. Hence, although the ‘sham’ argument did not find favour on the particular facts of Consistent Group, there may yet be agency worker cases in which an argument that the contracts do not reflect the reality of the relationship between the parties, and are therefore a sham, would succeed. [1967] 23 QB 786 3as he then was W W W. TA N F I E L D C H A M B E R S . C O . U K
Page 1: TA N F I E L D C H A M B E R S EMPL

Link to newsletter - Tanfield Chambers

Create successful ePaper yourself

Delete template?

Save as template?