On appeal

first_imgOn appealOn 24 Apr 2001 in Personnel Today Itconsidered issues such as control, integration and mutuality of obligationsand, taking into account the length of Montgomery’s assignment and the agency’spower to terminate the assignment, it held by a majority that Montgomery was anemployee of the agency and not of O&K. Employmentstatus of agency workerMontgomeryv Johnson Underwood, unreported, March 2001, Court of Appeal The Germancourt referred the matter to the ECJ for a preliminary ruling. The court heldthat “normal working hours” does not mean overtime but, as overtimeconstitutes an essential element of the contract, the employer had to givewritten notice to an employee of any term which required him to work overtime. InNovember 1997, at O&K’s request, the agency terminated Montgomery’sassignment because she was making unauthorised personal telephone calls.Montgomery brought unfair dismissal claims against the agency and O&K butthe tribunal held she was only an employee of the agency. Montgomery appealedas did the agency against the finding she was its employee. Anyanwuand Ebuzoeme were both elected to paid posts on the Students Union executive.Their expulsion from the university led to their dismissal from their unionposts. They brought unsuccessful applications for judicial review against the universityand then race discrimination claims against both the university and union. Noticeof overtimeLange vGeorg Schunemann, IRLB 661, European Court of Justice Comments are closed. Adjustmentsunder the Disability Discrimination Act PostOffice v S C Jones, unreported, April 2001, Court of Appeal Continuinga regular series spelling out the implications of important cases which havebeen heard recently in the appeal courts. Debra Gers looks at the issues Montgomerywas engaged by Johnson Underwood, an employment agency, and was assigned towork as a receptionist for O&K in June 1995. Contractual terms were agreedbetween Montgomery and the agency but she took her daily working instructionsfrom O&K which had its own agreement with the agency. He broughtproceedings before the German national court but there was dispute about whathad been agreed regarding overtime. GS claimed Lange had agreed to workovertime on request if there was a sudden increase in workload whereas Langeclaimed he had only agreed to work overtime in emergencies. Undersection 33(1) of the Race Relations Act 1976 someone who knowingly aids anotherto do an act which is unlawful under the RRA is treated as having done that acthimself. After aheart attack, Jones who was diabetic became dependant on insulin. The PostOffice’s medical adviser directed that he stop driving. Jones brought acomplaint of unlawful discrimination on the grounds of disability whichresulted in the Post Office making an offer to Jones that as part of his dutieshe could drive for up to two hours a day. However,the Court of Appeal allowed Johnson Underwood’s appeal and found thatMontgomery was not its employee. The tribunal had failed to take into accountestablished guidelines when determining whether there was a contract ofservice, in particular whether there was a mutual obligation to create acontract of service and an element of control by the agency over Montgomery. The Courtof Appeal held that they could not claim. Even though the university’sexpulsion of the students resulted in the termination of their posts, theuniversity had acted as the “prime mover” and had not “knowinglyaided” a discriminatory act within the meaning of section 33.center_img Related posts:No related photos. The Proofof Employment Relationship directive provides that an employer must notify anemployee of the essential aspects of their contract or employment relationship.And, in Germany, the law implementing the directive provides that a written statementdetailing the “essential conditions” (including agreed working hours)must be provided to the worker within one month of employment starting. What‘aiding’ meansAnyanwuv South Bank Student Union and University unreported March 2001 House of Lords Lange’scontract specified that his working week was 40 hours but there was noreference to overtime. When Lange refused to work overtime to meet a customer’sorder within a particular deadline he was dismissed. Previous Article Next Article Theemployment tribunal found that the Post Office had discriminated against Joneson various grounds. The Courtof Appeal dismissed Jones’s appeal in this complex case. The limit on the hoursJones could drive constituted less favourable treatment. The Post Office actedon medical advice and it was not open to the tribunal to assess the medicalevidence on a de nova basis nor to make its own risk assessment. Rather it wasfor the tribunal to apply the statutory criteria. However,it set aside the initial tribunal’s findings and recommendation in relation tothe employer’s duty to make adjustments in that they stipulated requirementswith which the Post Office was required to comply rather than recommending thatthe Post Office simply consider taking further steps within a specified period. TheEmployment Appeal Tribunal considered the contractual documents and factualcircumstances to determine whether Montgomery was an employee and, if so, ofwhich organisation. Atechnical legal issue was raised, namely whether, having lost the judicialreview, it was open to the individuals to claim discrimination against theuniversity. This was possible if the university aided a discriminatory act butnot if it had discriminated itself. ByDebra Gers, assistant solicitor at Eversheds, tel: 02920 471147 The Houseof Lords, however, allowed the students’ appeal. The word “aid”should be used in its ordinary sense, namely helping or assisting. It had notechnical or special meaning in this context and the matter was remitted backto the tribunal for it to consider the university’s conduct. The EAThad correctly quashed the earlier tribunal’s finding regarding the reasonableadjustments to be made and the case ought to be resubmitted forreconsideration. The PostOffice appealed. And the EAT upheld certain findings of discrimination. last_img

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