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FL Memo Ltd © 2008 |
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Employment Memo 2008 Newsletter Issue 2 |
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RECENT CASES |
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Recent cases
We send email updates which detail all the recent changes that have been added to our online updates page and the online version to all subscribers. These can be accessed by clicking on the updates in the emails, by using the online updates page or by using the online version of your Memo. We have selected a few of the cases most likely in our view to have a widespread impact followed by a cumulative list of all the cases covered by our 2008 updating service to date.
Highlights
Types of employment relationship Employee or self-employed - mutuality of obligation
¶¶38, 53, 2046 This case involved Polish workers brought to the UK to work under contracts with an agency which contained an “obligations” clause stating that the agency was not obliged to provide them with work and that they did not have to accept work. There were also clauses to the effect that they could provide substitutes to carry out work on their behalf, and permitting them to work for other organisations only if it did not prevent them carrying out work for the agency. In the tribunal and EAT it was held that the obligations clause was a sham and that there were implied terms that the agency had to provide work, and that the workers were obliged to accept work, so as to create an umbrella contract between periods of work. The Court of Appeal overturned this finding, because there was not enough evidence to show that the written terms did not reflect the reality of the situation. To support such a finding it is necessary to show the parties intended to create a misleading impression by the written agreement. Unless that were the case, there is no scope to imply terms to contradict an express term.
Consistent Group Ltd v Kalwak and ors [2008] IRLR 489, CA
Rights of parents and carers Time off to care for dependants - unexpected disruption of childcare arrangements
¶4740 The EAT have considered the scope of the provisions allowing parents to take time off necessary to deal with unexpected disruption in child care arrangements. An employee had some weeks' warning that her usual childminder would not be available for one day. After she had unsuccessfully tried to make other arrangements for cover, she made a request for time off to care for her children on that day. Her request was refused two days before she needed the time off. She took the day off anyway and was given a verbal warning for unauthorised absence. The EAT held that although there was advance warning of the need for leave of absence, it was still an unexpected event and therefore she was entitled to take the time off. The fact of advance knowledge might in some cases mean that it is not necessary for an employee to take time off, but that was not the case here, as she had no other option but to stay at home.
Royal Bank of Scotland v Harrison EAT Case 0093/08
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