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Agency worker wins sex claim

first_imgRelated posts:No related photos. A contract worker refused her post back after maternity leave successfullyclaims discrimination. plus cases on equal pay, constructive dismissal, injuryto feelings awards, sex discrimination, establishing dismissal, disciplinaryaction after lapse of contract, Tupe and race discriminationDiscrimination against contract worker Patefield v Belfast City Council IDS Brief 670, Court of Appeal Northern Ireland Patefield, an agency contract worker, was placed with the council, “theprincipal”, in 1995. In September 1997 she told the council she waspregnant and intended to work until March 1998. Because she was not itsemployee, the council refused to confirm that Patefield could return to her postafter maternity leave. The council then transferred a permanent employee toreplace her. Patefield was offered another position on less favourable termswhen her maternity leave ended. She brought a successful sex discrimination claim. The tribunal acceptedthat the council could have lawfully replaced Patefield with a permanentemployee at any time while she was working, but held that it had subjected herto a detriment by not allowing her back to her old job after taking maternityleave. A significant factor was that Patefield was the longest-serving memberof staff in her department by March 1998 and, but for becoming pregnant, shewould have remained in her post indefinitely. The council’s subsequent appealwas dismissed. When does time start to run? Young v National Power Unreported, November 2000, Court of Appeal Between 1991 and May 1995, Young worked in the audit department as a”value for money” (VFM) analyst. She was then seconded to anotherdepartment until her redundancy in October 1996. In April 1997, she brought anequal pay claim on the basis that her VFM work was of equal value to that ofcertain men working in the audit department. At a preliminary hearing, thetribunal struck out Young’s claim on the basis that it was out of time. As theEqual Pay Act provided that claims had to be brought within six months of thetermination of employment and Young’s employment as a VFM analyst had ended inMay 1995, the limitation period had expired in November 1995. Young successfully appealed to the EAT and National Power appealed to theCourt of Appeal. It held that the limitation period related to and ran from thetermination of the contract of employment rather than the actual job upon whichthe equal pay claim was based. No new contracts had been entered into in 1995when Young ended the VFM work. She had been engaged throughout on one contractonly. Delayed resignation did not prejudice claim Abbey National v Robinson Unreported November 2000 EAT Robinson made a formal complaint about her manager after being bullied byhim for about a year. He was subsequently disciplined and Robinson was told hewould be transferred to another role so she would not have to work with him. Ata meeting in August 1997 Abbey National indicated the manager would not betransferred after all and offered Robinson alternative employment which shedeclined. In July 1998 Robinson resigned and brought a successful constructivedismissal claim. The tribunal found that Robinson resigned because of thecumulative effect of Abbey National’s treatment and conduct in the monthsfollowing the August meeting. Abbey National unsuccessfully appealed arguingthe tribunal had misdirected itself by disregarding the fact the resignationtook place almost a year after the relevant breach of contract – the failure totransfer the manager in 1997. The EAT held the tribunal was correct to consider the entire period from thetime of the breach until the resignation. Further, a breakdown in trust andconfidence could be established by a course of conduct and not simply by asingle event. Two awards for injury to feelings appropriate Roselec v Cashmore and Anystaff Recruitment EOR Discrimination Digest 45 EAT Cashmore, an electrician, was registered with Anystaff but its client,Roselec, refused to interview her because it felt electrical work wasinappropriate for a woman. Cashmore brought successful sex discriminationclaims against both companies. The tribunal held there were two acts ofdiscrimination, one by Roselec when it refused to interview Cashmore andanother by Anystaff when it knowingly aided the commission of an unlawful actby Roselec. Further, the tribunal found that Anystaff had prevented Cashmorefrom finding out the real reason for being refused employment. The tribunal awarded £3,000 compensation for injury to feelings against bothRoselec and Anystaff. On appeal, the EAT rejected the argument that Cashmore had suffered injuryto feelings only once and that the £3,000 should be shared by the twocompanies. It held that even though the discrimination arose from a singleepisode there were different areas of injury: Roselec’s refusal to interviewCashmore injured her feelings as did the possibility that Cashmore’sopportunities of finding work through Anystaff were inhibited. Separate awardswere appropriate. Consensual termination or dismissal Cole v London Borough of Hackney IDS Brief 674 EAT Cole’s job ceased to exist following a reorganisation. Her options wereeither to take up a new position if there was a comparable job available (whichthere was not) or to apply for other vacant posts. She could also opt for aseverance package. Cole was told she was not likely to be successful at aninterview for a vacant post but the council omitted to inform her that she hadpriority rights in that regard. Believing any application for a vacant positionwould be unsuccessful, Cole asked to take voluntary redundancy and the councilagreed. Cole then complained to the tribunal that she had been unfairlyselected for redundancy and unfairly dismissed. The tribunal held there was nodismissal but a mutual termination of the contract. Cole successfully appealed to the EAT which held that but for the council’sdecision to reorganise, Cole would not have applied for the severance payment.There was no consensual termination, rather this was a dismissal by reason ofredundancy. Lapse of employment contract irrelevant Reddy v Isle of Wight Healthcare NHS Trust ex Parte Reddy Unreported, December 2000, High Court Reddy was employed as a locum consultant radiologist. After allegations ofsexual harassment were made against him he was asked to attend a formaldisciplinary hearing but his contract with the trust lapsed before that dateand Reddy refused to attend the hearing because the trust’s disciplinary policyapplied only to its employees during the course of their employment. Thehearing went ahead in Reddy’s absence and the allegations were upheld. Reddyunsuccessfully sought a judicial review of the decision. The court held that although the disciplinary sanctions could only beimposed during the contract, disciplinary proceedings could be invoked when thecontract had ceased to exist. In this case it was in the public interest thatthe disciplinary hearing be pursued. What constitutes a business transfer? Cheesman and others v R Brewer Contracts Unreported November 2000 EAT In 1998 Brewer took over the contract to maintain Teignbridge Council’srented properties from Onyx. Brewer did not take on any of the staff. Notangible or intangible assets passed directly from Onyx to Brewer and nonepassed indirectly via the council. Cheesman argued this was a Tupe transfer andclaimed unfair dismissal and redundancy pay. The tribunal held that there hadbeen no transfer. On appeal, the EAT held that the tribunal failed to take into account theexisting Tupe case law and the criteria laid down by the European Court ofJustice. It failed to look at things “in the round” and omitted toconsider relevant facts relating to the transaction. In particular, thetribunal failed to determine whether the undertaking had continued and retainedits identity following the transaction, the approach taken by the Court ofAppeal in 1999 in ECM v Cox. The matter was remitted back to the tribunal. Disciplinary investigation was discriminatory Virdi v The Commission of the Police of the Metropolis EOR Discrimination Digest No 45 Employment Tribunal Virdi, an Asian police officer, was suspected of sending racist hate mail toblack colleagues and himself. A white female officer, Bachelor, was alsosuspected and informally interviewed. Virdi however was covertly taped at ameeting unrelated to the incident in case he made any admissions. He was thenarrested, his house was searched by a specialist search team and he waseventually suspended. He brought a successful race discrimination claim. The tribunal found that Virdi had not sent the racist letters and takingBachelor as the comparator held that Virdi had been treated differently anddetrimentally; unlike Bachelor he was not interviewed informally; there was anattempt to entrap him in a taped interview; his house was searched; and he wasarrested and suspended from duty. Virdi was awarded a record £100,000 for injury to feelings, for”serious loss of reputation”, £25,000 aggravated damages and almost£25,000 interest. Note: Virdi was dismissed from the Metropolitan Police in March and hisunfair dismissal claim will be heard this year. Agency worker wins sex claimOn 1 Feb 2001 in Personnel Today Previous Article Next Article Comments are closed. last_img read more

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