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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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Flexible working Part-time workers Bank holidays ¶1899 The Court of Session has affirmed the EAT’s decision in McMenemy v Capita Business Services Ltd. The case concerned a part-time employee who worked on days other than Mondays, and had no days off in lieu of bank holidays. The Court of Session found that had the company employed full-time employees who also did not work on Mondays (i.e. because they worked Tuesday to Saturday) they too would have had no days off in lieu of bank holidays. Accordingly, the part-time worker’s claim failed. McMenemy v Capita Business Services Ltd [2007] CSIH 25, CS Comment This decision was based on relatively unusual facts (the existence in the company of working arrangements so that full-time workers might not work on Mondays). Where a company’s full-time workers do all work from Monday to Friday, it remains good practice for employers to offer part-time workers who do not work Mondays a pro rata entitlement of days off in lieu. Agency workers 1. Where end-user declined to offer permanent contract ¶¶2040+ There is usually no employer-employee relationship between an agency worker and an end-user. Where an agency worker seeks to show that he is an employee of an end-user, he will be required to show that it is necessary for a contract of employment to be implied between them. In this case, an agency worker applied for a permanent post at a hospital but was unsuccessful. In the meantime, he continued to work at the hospital as an agency worker. In the light of his unsuccessful application for a permanent post, the EAT held that a contact of employment could not be implied between him and the end-user. Heatherwood and Wexham Park Hospitals NHS Trust v Kulubowila and ors [2007] EAT case 0633/06 2. Whether agency contract can be set aside ¶¶2040+ In another case concerning an agency worker seeking to show that he was in a contractual relationship with an end user, the EAT considered its previous ruling in the case of Cairns v Visteon, that where an agency worker has an explicit contract of employment with an agency, a contract of employment cannot be implied between the agency worker and the end-user (see update in first newsletter to ¶2040). Here, an agency worker A sought to evade the above rules by arguing that the contract of employment with the agency was fictitious. He claimed that it was a standard terms contract, that from the first day of his employment he had been controlled and managed by the end-user, and that no mutuality of obligation had ever been intended between him and the agency. In the absence of a meaningful contract of employment, A argued, it was open to a tribunal to find an implied contract between him and the end-user. The EAT rejected A’s arguments, on the basis that since a contract of employment will only be implied where this is necessary, and since this will only occur in exceptional cases, the search for an implied contract of employment will be defeated whenever there is an ostensible contract of employment between the agency worker and the agency. Astbury v Bentley Motors [2007] EAT case 1844/06 |
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