Agency workers
Royal National Lifeboat Institution v Bushaway (2005) IRLR 674


A written agreement between an employment agency and a worker described her as a temporary worker engaged under a contract for services. The contract included an 'entire agreement clause' providing that the document contained 'the whole agreement between the parties and any amendment to it should be made in writing'.


Nevertheless, a tribunal held that it was entitled to go behind the written agreement and look at the reality of the situation to determine whether the contract was, in truth, a contract of employment. The Employment Appeals Tribunal (EAT) upheld the tribunal's decision.


In determining whether the relationship between the two parties is that of employer and employee, there may be cases where the parties intend that all the terms of their agreement &150; other than those implied by law &150; are contained in the contractual documents. In such cases, it is not permissible to look beyond the written terms of the agreement.


However, the presence of an 'entire agreement clause' is not in itself conclusive. In this case, looking at the written agreement in the context of what was actually negotiated and what was done both before and after the claimant started work, it was clear that (notwithstanding the 'entire agreement clause') the agreement did not reflect and contain the entire bargain between the parties.


There were marked inconsistencies between the provisions of the written agreement and an earlier letter to the claimant from the agency, setting out the terms of her engagement, for example, with regard to the duty to work and the amount and by whom she would be paid.


Accordingly, the tribunal was entitled to decide that it should look beyond the written word and to conclude that, looking at all the relevant circumstances, the claimant was an employee. The fact that the claimant was initially engaged on terms that differed significantly from those on which long-term employees were engaged (and those on which she was later appointed) did not help in determining whether or not the terms on which she was initially engaged amounted to a contract of employment.


An employee's contractual terms may well be very different at different times in their employment. What matters is whether at any one time the terms indicate employment or self-employment. The mode of appointment of a short-term temporary employee may have significant differences to that of a long-term employee.


Furthermore, it was not appropriate to say that the claimant could not be an employee of the company for whom she actually worked because, prior to her permanent employment, she was being paid by a third party, namely, the agency.


The fact that payment was made by an agent for the employer did not mean she was not being paid by the employer.





Mutual trust and confidence

Kerry Foods Ltd v Lynch (2005) IRLR 680


An area manager's employment contract provided for a five-day working week. Some of the managers worked a six-day week and the employers sought to persuade all managers to work on that basis.


Mr Lynch declined and was sent a letter giving notice that, if he did not agree to the new terms, involving a cut in his holiday entitlement as well as six-day working, his contract would terminate and he would be offered immediate re-engagement on the new terms. Before that notice expired, he resigned. He claimed to have been constructively and unfairly dismissed.


A tribunal accepted that the proposed changes seriously damaged the relationship of trust and confidence between the parties and concluded that there was no evidence to show what adverse impact there would have been on the employers' business if the contractual changes were not made, or the quantum of improvement if they were.


The EAT allowed an appeal. An employer's service of a lawful notice of termination coupled with an offer of continuous employment on different terms cannot of itself amount to a repudiatory breach of contract. Furthermore, the tribunal's findings of fact plainly showed the advantages to the employers of the proposed changes and that was 'sufficient to pass the low hurdle of showing some other substantial reason for dismissal'.





Tribunal procedures

Initial Electronic Security Systems Ltd v Advice (2005) IRLR 671


At 4pm on the last day for presenting her unfair dismissal claim in time, the claimant attempted to e-mail her claim form to the tribunal. Had the transmission succeeded, her complaint would have been presented in time. She assumed that the transmission had been successful since no 'not sent' message appeared on the screen and the e-mail appeared in her 'sent messages' folder.


However, when she telephoned the tribunal office the following week, she was told that the e-mail had not been received. A tribunal found that it was reasonable for her to assume that her e-mail would be received on the day it was sent and she had no reason to suspect or believe that the message and claim form had not been sent.


The EAT upheld that ruling. Applying the principle of Consignia Plc v Sealy (2002) IRLR 624, that the reasonable expectation of the sender of a claim form by post is that it will be received by the tribunal in the ordinary course of post, the reasonable expectation of the sender of an electronic mail communication is that, in the absence of any indication to the contrary, it will be delivered and will arrive within a very short time after transmission, normally 30 to 60 minutes.


Although, as with post, there are occasions when e-mails are delayed or disappear, the vast majority does not. The EAT noted that there is no self-standing proposition that it does not matter why a claimant waited until the last moment to present a complaint. Unless the Consignia defence becomes available, 'it will always matter why the claimant has waited until the last moment to present a complaint'.




Richardson v U Mole Ltd (2005) IRLR 668


This decision is noteworthy for the criticisms made by Mr Justice Burton, the President of the EAT, of the new tribunal rules of procedure.


He describes the rules as 'unsatisfactory' while acknowledging that, on the face of it, they are extremely welcome in providing 'a gateway to ensure that applications or responses kick off on a sensible and complete basis from the beginning, so there is no need for subsequent clarification'.


However, if 'the result of the imposition of the gateway is not simply to point out gaps which ought to be corrected, but to drive away a claimant so that as, for example, in this case, it means that by the time the completely immaterial defect is corrected, the claimant is out of time, then injustice is inevitably going to be done.


'I have no doubt that that is not, and if it were it should not be, the purpose of the rules and... there ought to be, and is, an overriding objective of encouraging dealing with cases justly and fairly, such that the tribunals ought to be in the business of ensuring that that is the case, rather than driving possibly meritorious claimants or indeed respondents from the judgment seat'.


In this case, a tribunal erred in refusing to accept an unfair dismissal claim on the ground that it did not expressly state that the claimant was an employee of the respondents, as required by the rule 1(4)(f). The claim form sufficiently disclosed that the claimant was in fact asserting, at least by implication, that he was an employee. Even if there had been a failure to comply with rule 1(4)(f), the error was wholly immaterial.





Redundancy consultation

Amicus v GDS Tooling Ltd (in administration) (2005) IRLR 683


An employment tribunal made a protective award for a period of 70 days rather than for the maximum period of 90 days, since the employers had kept the union and the employees informed of matters, despite having failed to comply with the statutory obligation as regards collective consultation.


The trade union argued on appeal that, once it was concluded that there had been a total failure to comply with section 188 Trade Union & Labour Relations (Consolidation) Act 1992, the tribunal had no option but to make a maximum award. The EAT rejected the appeal.


The guidelines laid down in Susie Radin v GMB (2004) IRLR 400 make it clear that a tribunal has a wide discretion to do what is just and equitable in all the circumstances when determining the length of a protected period. The tribunal is obliged to consider the seriousness of the employer's breach and any mitigating circumstances. Mitigating circumstances may be considered even if they pre-date crystallisation of the proposal to dismiss. An employer who deliberately set out to be secretive would fall into a different category from one who completely failed to disclose information through negligence or misguidedness, or an employer who simply failed to disclose the information at the right time and in the right context.


By Martin Edwards, Mace & Jones, Liverpool and Manchester