Archive for August, 2012

The EAT has held that a succession of assignments can form a contract of employment if there is sufficient mutuality of obligation and the fact that the arrangement was said to be terminable at will was irrelevant.

The individual, in this case, worked under a succession of individual assignments for over 5 years. He was never given a written contract of employment or any contractual document or statement of terms. He was told that there was no obligation on him to accept work and no obligation on the employer to provide work. He was told that he was a worker rather than an employee, although a handbook with which he was provided stated that once he had accepted a job, a ‘verbal contract’ would be formed under which he was expected to complete the job within a given deadline and according to certain specifications.

After being removed from the employer’s panel he brought a claim for unfair dismissal. He argued that each individual assignment was a contract of employment. The employer disputed this but conceded that, if it was right, the individual would have sufficient continuity of service to bring a claim for unfair dismissal.

The employer argued that the individual was not an employee, as there was no mutuality of obligation within, or between, assignments and at first instance an employment tribunal agreed.

On appeal the Employment Appeal Tribunal reversing the decision, said that there was sufficient mutuality of obligation for an employment relationship to exist, and held that there had been a series of successive contracts in place.  This was because while carrying out an assignment there was an agreement to undertake work in return for payment. The fact that the assignment could be brought to an end, it said, did not mean that there was no contract in existence while the assignment was continuing.

Case reference: Drake v Ipsos Mori UK Limited

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The Employment Appeal Tribunal has held that an obligation to make reasonable adjustments does not necessarily end when an employee goes on sick leave. The point made a difference to whether the employee had presented his claim to the Tribunal in time.

The employee in this case brought a claim for disability discrimination following a period of sick leave. He argued that his employer failed to make reasonable adjustments to take into account his disability and that, if  the employer had made reasonable adjustments, he would not have gone on sick leave in the first place, or  indeed later adjustments would have enabled him to return to work.

At first instance the judge said that any duty to make reasonable adjustments ended when he went off sick because he was “simply unable to be at work”.

The employee appealed and won.

The Employment Appeal Tribunal said that, in some cases, adjustments while on sick leave would not make any difference to the employee.  This tribunal, it said, should have decided whether it was the very failure to make the adjustments which kept the employee away from work.  

Case reference: Olenloa v North West London Hospitals NHS Trust

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