E-NEWS: March 19 2004

In this edition we report on:

* Agency Workers - What is their status?
* Discrimination case won by dwarfism sufferer
* UK Government sued over tea breaks
* Unfair dismissal and short service employees

Agency Workers - What is their status?

The EAT’s decision in Dacas v Brook Street Bureau has recently been overturned by the Court of Appeal. Mrs Dacas worked for Wandsworth Council for four years. She was placed there by Brook Street Bureau and received payment from them.

The EAT held that Brook Street Bureau was her employer on the basis that they paid her wages and had the right to discipline her if necessary.

The Court of Appeal has overturned the decision holding that Brook Street was not the employer. The Court held that the fact that the contract stated that Mrs Dacas was neither the employee of either the Council or the Bureau was not determinative. In the leading judgment Lord Justice Mummery suggested that the norm would be that the end-user would be the employer. In this case, however, Mrs Dacas had not appealed the finding that the Council was not the employer, therefore, the Court was not able to substitute the finding that it was.

Discrimination case won by dwarfism sufferer

A shop worker, suffering from dwarfism, who was subjected to "a regime of unpleasant and vindictive behaviour" has won his case for discrimination.

The employee was forced to climb up the side of shelves and stand on freezers, in order to stack high shelves, since he was not provided with a ladder. He was also subjected to humorous comments by members of the public and was insulted about his height by his supervisor.

The employee resigned claiming victimisation, depression and work-related stress. Whilst finding that he had been discriminated against on the grounds of his disability, the tribunal found that he had not been constructively unfairly dismissed, neither had his contract of employment been breached.

UK Government sued over tea breaks

The European Commission is taking the UK Government to the European Court of Justice for its failure to enforce certain parts of the EU Working Time Directive, regarding ‘rest periods’ and ‘undeclared working time’.

The Commission alleges that workers are not taking the tea breaks to which they are legally entitled under the Directive, and unpaid overtime is not being included in the 48-hour maximum week.

With a non-binding vote of the European Parliament in favour of abandoning the 48 hour opt our provision and the pending review of the Working Time Directive from the European Commission due soon, working time looks to be one of the hot topics to watch in the coming months.

Unfair dismissal and short service employees

Employees dismissed without notice, in breach of their contracts of employment had until recently been thought to be able to claim damages for losing the right to claim unfair dismissal, if their notice period, had they been allowed it, would have taken them over 12 months service.

The Court of Appeal has now ruled that this is not an argument available to employees.

In Harper v Virgin Net, Ms Harper was contractually entitled to 3 months notice of dismissal. She was dismissed after having been employed for less than 12 months. The court found that she had been entitled to receive 3 months notice. Had she received the 3 months notice she would have attained the requisite 12 months service to claim unfair dismissal. However, the Court of Appeal held that Ms Harper was not entitled to be compensated for losing the right to claim unfair dismissal.

This effectively closes a backdoor way into unfair dismissal compensation for employees dismissed with service, which is just under 12 months. Employers should however be aware that by virtue of Section 97(2) of the Employment Rights Act 1996 an employee dismissed without their statutory minimum notice period (1 week for employees with fewer than 12 months notice) can extend their service by 1 week for the purposes of calculating their length of service for claiming unfair dismissal. This means that despite the ruling in Harper that prudent employers would be advised to treat employees with 51 weeks continuous service as potential claimants with rights to claim unfair dismissal.

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* Managing sickness absence/stress in the workplace
* Misconduct and the disciplinary procedure
* Poor performance
* Handling redundancy situations
* Equal opportunities and avoiding unlawful discrimination in the workplace
* Avoiding unfair dismissals
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