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Who are they?
It
can be hard to define an atypical worker, but generally the term is
used to describe someone who does not work on a permanent basis. It
therefore covers temporary workers, contract workers, agency workers,
seasonal workers, term time workers, casual workers, sessional workers
and so on.
Following
a consultation on the employment status of atypical workers in 2002,
the Government decided (finally) in 2006 not to extend the rights
currently enjoyed only by employees to other categories of workers.
What rights do employees have?
An
employee is someone who works under a contract of employment and enjoys
far more rights than a worker. For instance, only employees can claim
unfair dismissal, redundancy pay, maternity pay and statutory sick pay,
all of which require a qualifying period of service.
What rights do workers have?
Workers
have access to a more limited range of rights. These include rights
under the National Minimum Wage Act 1998 and the Working Time
Regulations 1998. They are also protected from discrimination on
grounds of gender, age, race, disability, sexual orientation and
religion or belief.
What rights do agency workers have?
Agency
workers are workers supplied to an end-user through an intermediary. In
most cases there is a contract between the agency and the individual,
as well as between the agency and the end-user.
So
clearly agency workers may also be employees, but the more difficult
question is ascertaining the identity of their employer.
The courts seem to be in a bit of a state of flux about this. In Dacas v Brook Street Bureau
(2004), the Court of Appeal said that an end user could be the employer
of an agency worker, due to an implied contract of employment between
them and the agency worker.
The Court came to a similar conclusion in Cable and Wireless plc v Muscat (2006), and also confirmed that Dacas was correctly decided.
However,
since then a number of Employment Appeal Tribunals (EATs) have said
that agency workers were not employees of the end user and that
tribunals should only imply contracts of employment when it was
necessary to reflect "business reality".
Generally,
the courts seem to think that the Government needs to legislate in this
area to make the law clearer for all concerned. And recently, it issued
a consultation document (which closed at the end of May) on giving
vulnerable agency workers more protection.
What rights do fixed term workers have?
Strictly
speaking fixed term workers are, in fact, employees because under the
Fixed Term Employees (Prevention of Less Favourable Treatment)
Regulations 2002 they must be working under "a contract of employment
which is due to end when a specified date is reached, a specified event
does or does not happen or a specified task has been completed".
What rights to part time workers have?
Under
the Part Time Workers (Prevention of Less Favourable Treatment)
Regulations 2000, part timers have the right not to be treated less
favourably than a comparable full timer, and not to be subjected to any
disadvantage.
Part
timers have to compare themselves with full timers who are employed on
the same type of contract, and do broadly similar work. They should be
based at the same "establishment", but if there is no one that fits
that description at that workplace, then the part timer can compare
themselves with a full timer employed by the same employer elsewhere.
What rights do casual staff have?
Casuals
are individuals who work on an irregular basis, often in response to a
particular demand. Although they may be deemed to be working under a
contract of employment from day to day, they are unlikely ever to be
defined as employees because they do not satisfy the qualifying period
of service that most employee rights demand.
And
as they are not usually required to accept or reject work, they do not
satisfy the criterion of "mutuality of obligation" necessary for a
contract of employment to be established, as stated by the House of
Lords in Carmichael v National Power plc (2000).
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The
law states that women are allowed to return to the same job after
maternity leave. In the first case to consider what that means, the
Employment Appeal Tribunal (EAT) said in Blundell v the Governing Body of St Andrew’s Catholic Primary School that a woman teacher had not been discriminated against when she was not allowed to return to teach the same class.
What happened?
Mrs
Blundell had been a teacher at the school since 1992 where it was
normal practice to rotate teachers around classes every two years. As
she was allocated a reception class in 2002, Mrs Blundell had expected
to remain there for two years.
However,
in 2003 she found out she was pregnant and the head teacher, Mrs Assid,
asked her to take on floating duties for that year. She refused and the
head reluctantly agreed to let her continue to teach the reception
class
She
then went off sick in December and had the baby in January 2004. She
was not, however, consulted when the teaching allocations for the
forthcoming year were sorted out during her maternity leave.
Just
before she returned from leave, Mrs Assid asked her if she wanted a
floating role or to teach year two. She chose the latter, but argued
that she was entitled by law to return to the same job she had left in
December 2003. In other words to her job as a reception class teacher.
The
tribunal rejected her claim and the EAT agreed. It said, in terms of
the job to which she could return, that although it was important what
the contract said, the law only refers to "the contractual provisions
as to the nature of the job." This meant that the job description (if
it was contractual) also had to be taken into account as well as the
terms and conditions of employment.
It
also emphasised the fact that the regulations allowed for situations
where it was not reasonably practical for employers to let a woman
return to her previous job. The alternative job just had to be "both
suitable for her and appropriate for her to do in the circumstances."
When
deciding whether the new job was suitable in comparison to the old one,
it said that tribunals had to consider three factors - the nature of
the work, the capacity (or function) of the job and the location. This
gave the employer some latitude, which had been exercised in this case.
It concluded, therefore, that Mrs Blundell’s claim should fail.
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Section
95(1)(c) of the Employment Rights Act 1996 (ERA) says that employees
can claim constructive unfair dismissal if they resign in response to a
fundamental breach of contract by their employer.
In Abbey National plc v Fairbrother,
the Employment Appeal Tribunal (EAT) said that in constructive
dismissal cases involving a grievance, employers have a discretion in
how they carry them out. If it is reasonably exercised, the claim will
fail.
What happened?
Mrs
Fairbrother worked as a customer manager for Abbey National from 1998.
She suffered from obsessive compulsive disorder, but had no problems at
work until 2002 when two colleagues started calling her Frau
Fairbrother and made Nazi salutes.
Following
another falling out in July 2003, Mrs Fairbrother walked out. She
complained but was not satisfied with the way the area manager handled
her complaint. The company carried out an investigation, but dismissed
her grievance. She appealed unsuccessfully and finally resigned in June
2004. She claimed unfair dismissal, among other things.
The
tribunal concluded that the grievance procedure was seriously flawed,
and that Mrs Fairweather was justified in her view that the
investigation into her grievance was too restrictive and had
"trivialised" her complaints.
The
EAT disagreed. It said that employees first have to show they have been
dismissed under section 95(1)(c). Then the tribunal has to consider
whether the employer has breached the implied term of trust and
confidence.
Tribunals therefore have to ask:
- What was the conduct being complained about?
- Did the employer have a good reason for behaving like that?
If they do, then the employee cannot succeed. If they don’t, then the tribunal has to ask a third question
- Was the employers’ conduct likely to seriously damage the relationship between the two parties?
The
EAT said it was obvious that employers have to act reasonably, but that
did not mean they had no discretion in how they carried out a grievance
or disciplinary procedure.
In
the context of a grievance procedure (which has to be looked at as a
whole), tribunals have to answer the second question by looking at the
"band of reasonable responses". It is only if the grievance has been
carried out "in a manner in which no reasonable employer" would have
conducted it that tribunals can then conclude that the employer did not
have a good reason for behaving as they did.
This
tribunal, however, did not do any of that. If they had looked at the
grievance procedure as a whole, they would have concluded that Abbey
National had "reasonable and proper cause for the outcome on which they
determined."
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CONSULTING ON PATERNITY LEAVE
The
Government has recently published a consultation document seeking views
on how the administration of additional paternity leave and pay will
work in practice.
The
proposals give fathers the opportunity to choose to take up to 26 weeks
Additional Paternity Leave to care for their child if certain
conditions are met, including the mother returning to work.
The consultation closes on 3 August. To download the document, go to: www.gnn.gov.uk/environment/dti
CONSULTING ON DISPUTES RESOLUTION
Following
a wide-ranging review of the statutory disputes procedures, the
Government announced a consultation earlier this year to review the way
employment disputes are resolved. It has now published a supplementary
review relating solely to procedural unfairness in unfair dismissal.
Working on the basis that the dispute resolution procedures will be repealed, the document sets out three options:
- Go
back to the position before the introduction of the 2004 procedures. In
this scenario, section 98A would be repealed and the decision in Polkey v AE Dayton Services 1987 would be reinstated.
- Repeal
section 98A as above, but allow tribunals to make alternative findings
"reflecting the balance of procedural and substantive unfairness in the
dismissal".
- Reverse the Polkey decision in full and repeal the sections making dismissal automatically unfair.
The Government supports the second option, and has asked for all responses to be sent in by 20 June.
To
download the document (entitled "Supplementary review of options for
the law relating to procedural fairness in unfair dismissal"), go to: www.dti.gov.uk/files/file39477.doc
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