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Employment Law Update

Employment Law UpdateWelcome to April’s update. This month, we take a look at a case involving a waitress who was compensated for flea bites; we offer some guidance for dealing with heat of the moment resignations, sham contract clauses plus more...

Waitress dismissed for raising health and safety issues

Our first case highlights the importance of following fair and proper redundancy procedures by ensuring that there’s an adequate and correct 'pool' for selection.

A waitress claimed that she had been unfairly dismissed from her job at a holiday centre because she had raised health and safety issues after suffering flea bites in accommodation, provided for her by her employer. She also complained that the accommodation had a broken shower, damp coming through the walls and soiled mattresses. After a sleepless night and constant itching, she decided to visit her doctor, only to be informed that she was suffering from infected insect bites which were probably from rat fleas. In defence, her employer claimed that she was dismissed due to an overstaffing issue and not due to the complaints made.

The Employment Tribunal decided that even though there was an overstaffing issue, no-one was seriously considered for redundancy. The Tribunal concluded that it was far more likely that her dismissal was a result of health and safety issues that had been raised, therefore making her dismissal unfair.

Sham Contract Clauses & Self employed 'workers'

The following case will be of particular interest to those of you who use self-employed workers. In 2004, a house building organisation lost a Court of Appeal case after claiming that the tradesmen who worked on their building sites were self-employed, that they were not ‘workers’ within the definition of the Working Time Regulations, and so were not entitled to protection by the Regulations.

The outcome of the case prompted the organisation in question to revise the wording of their standard contracts, and so introduced the following wording:

For the avoidance of doubt, the obligation to perform the work is not personal to the Contractor and their obligations may be performed by other labour... Further, the contractor is required to provide other labour if it is necessary to carry out the works or maintain the rate of progress stipulated by the Company 

This revised wording was then put to the test, but the organisation lost again. The Employment Tribunal decided that the revised wording was a ‘sham’ as both parties entering into the contract had a common intention that it was not intended to create the legal rights and obligations which it set out. The 'contractors' were found to be 'workers'.

Finally... Heat of the moment resignations

It can sometimes be difficult knowing what action to take when faced with an angry employee and a heat of the moment resignation. Do you accept it or ignore it? The next case provides some clear guidance in this matter.

Mr Ali was employed by his local council, but handed in his notice of resignation due to ‘personal circumstances’. When the case was sent to the Employment Tribunal, he claimed that he wasn’t fully aware of what he was doing at the time as he was under pressure, and therefore unable to think clearly.

At th time of his resignation, Ali’s manager offered him a cooling-off period and also left him for half an hour to rethink his decision. However, despite the efforts of his manager, Ali confirmed his resignation immediately, which his manager accepted. Less than a week later, Ali contacted his manager asking to return. A decision had been made not to reinstate him and his resignation therefore stood.

Unambiguous words of resignation

As a general rule, employers are entitled to treat unambiguous words of resignation as being effective. However, the Court of Appeal has highlighted three ‘special circumstances’ where a clear and unambiguous resignation should not be relied on:

  • an immature employee
  • an employee being pushed into a decision by the employer
  • a decision taken in the heat of the moment

If you fall upon any of these special circumstances, as an employer, you are required to allow a reasonable period of time to lapse (it is suggested that this should be a day or two). You should also make a further enquiry to see if the resignation was really intended.

In Ali’s case, the Employment Appeal Tribunal concluded that he did not resign in the heat of the moment, as he had confirmed his wish to resign after taking half an hour to reflect on his decision.  Even if special circumstances had applied, the four-day delay to notify his employer that he changed his mind would have been too long.

  • 1st April 2009
  • 1 Comment

1 Comment

1

paul Hadfield

I work for a XXXXXXXXXX establishment at the moment the heat in the kitchen is reaching 80 of there are no windows the back door has to be kept shut and the fitted air con does not work . We have just got a new manager who has cancelled cold drinks to the kitchen only soda water and 2 ice cubes allowed. I think this is totally mad for a company of this size especially when the said manager who sits in a nice cool office strolls though the kitchen regulary with a large glass of coke loaded with ice not paid for is this comp policy or can I make a formal complaint without fear of retrebution

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