Gillie Scoular and Tom Wagstaff present their selection of key decisions not covered elsewhere in this issue.
There has been a rush of agency worker decisions at the Employment Appeal Tribunal (EAT) in recent months. These cases emphasise how unusual it is for agency workers to be able to demonstrate an implied contract of employment with the organisation they are working for (the “end user”). This marks a change of emphasis from the Court of Appeal’s decision in the Dacas case in 2004, when the comments of at least one judge suggested that the mere passage of time might be enough to imply a contract.
These decisions give renewed impetus for the TUC’s calls for agency workers to enjoy full employment protection. The Government has shown no inclination to accede to this request, though it has recently announced the creation of the Vulnerable Workers Enforcement Forum to offer protection to workers who are at high risk of being denied the rights they do enjoy, such as health and safety rights and the national minimum wage.
Procedurally unfair dismissals One of the most significant changes introduced in conjunction with the statutory dispute resolution procedures was the modification of the Polkey decision, which established that an employer could not defend an unfair dismissal claim by arguing that following a fair procedure would have made no difference to the final outcome. The Employment Rights Act now says that if the statutory dismissal procedures have been followed, failure to follow “a procedure” will not make the dismissal unfair, provided the employer can show it would still have dismissed if that procedure had been followed. But what does this mean?
To start with, some EAT panels thought that “a procedure” referred only to the employer’s own internal procedure and not to the general principles of procedural fairness, such as the need to conduct a fair investigation before dismissing on grounds of misconduct. But in recent months a number of EAT decisions have emerged which make it clear that a broader interpretation is to be followed. So any kind of procedural unfairness (other than breach of the statutory procedures) can be ignored if the employer can show that there is more than a 50 per cent chance it would have decided to dismiss in any event.
The Government is currently consulting on whether this rule should remain if and when the statutory procedures are abolished.
There have been a number of recent cases on the employer’s duty to make reasonable adjustments for disabled employees. Two main principles emerge from these decisions. First, it is not of itself a breach of the duty if the employer fails to investigate what adjustments are required, though in most cases it will not be able to work out what it needs to do without making such an assessment. Secondly, it will not normally be a reasonable adjustment to pay a disabled employee sick pay in excess of his or her normal contractual entitlement.
Further changes to the Sex Discrimination Act are in the pipeline following a successful challenge to some of its provisions by the Equal Opportunities Commission. Some provisions relating to harassment and pregnancy-related discrimination are to be rewritten because they failed to reflect EU law correctly. The necessary amendments are likely to be implemented in October 2007.