• Robert Spicer

New Employment Case Summaries

CONTRACTS OF EMPLOYMENT Requirement to work personally Case Halawi v WDFG UK Ltd t/a World Duty Free UKEAT/0166/13/GE Facts H worked in a World Duty Free outlet at an airport, selling cosmetic products airside. Her security clearance to do so was withdrawn and she claimed that she had thereby been unfairly dismissed and discriminated against. To claim this she had to show that she was an employee or worker, to do which required her to show that she had a contract with either respondent, if employed by them, by which she undertook to work personally for that party. The employment tribunal found she could not do so, because she provided her services through a limited company which she had incorporated for the purpose (and her relationship with that company need to be, but never was, established in evidence). They were provided to the second respondent whose role was in effect that of an agent supplying workers to a third party to work in retail space controlled by the first respondent. There was thus no contract between H and either respondent. The ET found that the arrangements were such that H was not required to work personally at her job, but could get another person to substitute for her: a power which was not merely theoretical, since she had in fact exercised it. It might appear to a member of the public passing through the airport that she appeared to be working exactly as any employee would, and for that reason the appeal had been permitted to proceed to a full hearing. Decision On existing appellate authority, which was unaffected by European law, she could not have had a contract of employment with either respondent, since she had a contract with neither; nor could she be a “worker” since that too required (i) a contract, under which (ii) she agreed to work personally.

Terms of contract Case Cleeve Link Ltd v Bryla [2014] IRLR 86, EAT Facts B was recruited from Poland. A clause in her contract stated that if her employment was terminated within 6 months, the cost of her airfare and training costs would be recoverable from her wages. Her employment was terminated within the 6 month period. The employer recouped its costs and paid her nothing. B claimed unlawful deduction from wages. Her claim was upheld by the ET which found that the clause was unenforceable as a penalty clause and had not been a genuine pre-estimate of loss. The employer appealed to the EAT. Decision 1. The appeal was allowed. 2. The deduction had been a genuine pre-estimate of loss. 3. The employment judge had not considered whether there was an extravagant or unconscionable gulf between the maximum amount which could be recovered in a common law action for damages for breach of contract as opposed to the sum stipulated in the agreement.

EMPLOYMENT TRIBUNALS Time limits Case Robinson v Fairhill Medical Practice (2014) Morning Star, January 31, EAT Facts R was summarily dismissed for gross misconduct on July 6, 2011. Her solicitors informed her of this on July 7, 2011. She received a letter confirming her dismissal on July 8, 2011. She lodged claims for unfair dismissal and disability discrimination on October 7, two days after the expiry of the time limit. The ET ruled that the claims were out of time. It had been reasonably practicable for R to have lodged the claims on or before October 6. R appealed to the EAT. Decision 1. The appeal was dismissed. 2. The effective date of termination was July 7. 3. It was just and equitable to extend the time for the disability discrimination claim because the errors of the solicitor should not be visited on the head of the claimant.

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