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Archive for August, 2018

Contracts of employment: part-time workers: comparison

CONTRACTS OF EMPLOYMENT

Part-time workers

Categories of comparison

Case  Roddis v Sheffield Hallam University (2018) Morning Star, August 17, EAT

Facts R was employed by S as a part-time lecturer. He claimed that he had been subjected to less favourable treatment than a full-time lecturer. He had to show that he was employed under the same type of contract as the full-time employee. R was employed on a zero hours contract in that his hours of work varied according to the workload of the university’s business. The full-time lecturer had a permanent contract. The ET found that the full-time worker was not an appropriate comparator because the two were not employed under the same type of contract. R appealed to the EAT.

Decision      1. The appeal was allowed.

  1. Contracts should be broadly defined. Both contracts were employment contracts. Both were permanent in that both had the protection of notice periods and had acquired statutory protection from unfair dismissal through length of service.
  2. Both workers were employed under the same type of contract for the purposes of the Part-Time Workers Regulations.

Unfair dismissal: trade union activities

UNFAIR DISMISSAL

Automatic unfair dismissal

Trade union activities

Case  Morris v Metrolink RATP DEV Ltd [2018] EWCA Civ 1358, Court of Appeal

Facts M was a union representative for the Workers of England trade union at Metrolink. Five members of the union were put at risk of redundancy. M was sent a photograph of a diary, taken without permission, belonging to a line manager. The diary contained adverse comments about the five. M lodged a grievance which contained the diary material. He was dismissed for storing and sharing private and confidential material. He complained of unfair dismissal and automatic unfair dismissal for taking part in trade union activities. The ET upheld the complaint. Metrolink appealed to the EAT which allowed the appeal. M appealed to the Court of Appeal.

Decision      1. The appeal was allowed.

  1. M had not copied the material nor shared it further.
  2. It could not be uncommon for a trade union representative to be the recipient of a leak.
  3. M had made very limited use of the material and its use was within the scope of trade union activities.

Religious discrimination: occupational requirement

RELIGIOUS DISCRIMINATION

Occupational requirement

Case  Egenberger v Evangelisches Werk fur Diakonie und Entwicklung eV (2018) Morning Star, July 27, European Court of Justice

Facts E applied for a post with EW, part of the German Protestant Church. The advertisement for the post specified that applicants must belong to the Working Group of Christian Churches in Germany. E did not belong to any religious faith. She was shortlisted but was not selected for interview. She complained of religious discrimination. The local labour court upheld her complaint. The Federal Court referred the matter to the ECJ.

Decision      1. The right of organisations to discriminate by applying a genuine, legitimate and justified occupational requirement is subject to judicial review by the national court.

  1. In that event, employers have to prove that the requirement was necessary and objectively dictated.
  2. The rights of churches and other ethical organisations to recruit workers with the same ethos must be balanced against those of workers not to be discriminated against on grounds of religion or belief.

Vicarious liability: assault by subcontractor: employment status

VICARIOUS LIABILITY

Assault by subcontractor

Employment relationship

Case  Kafagi v. JBW Group Ltd [2018] EWCA Civ 1157, Court of Appeal

Facts K alleged that he had been assaulted by two bailiffs who were collecting a debt. The bailiffs had been subcontracted by JBW. K claimed compensation from JBW on the basis of vicarious liability. The county court dismissed the claim, ruling that the bailiffs were self-employed. K appealed to the Court of Appeal.

Decision      1. The appeal was dismissed.

  1. There was no relationship akin to employment. The bailiffs ran their own business. They could turn down work from JBW and could collect debts in any legal way they thought fit. They were not integrated into the business of JBW.

Vicarious liability: self-employed beauty therapist

HEALTH AND SAFETY

Vicarious liability

Employment status

Case  Grubb v Shannon (2018) Rep LR 48, Glasgow Sheriff Court

Facts G, a beauty therapy customer, claimed compensation from a salon owner for injuries caused by a self-employed beauty therapist in the salon. G had suffered an allergic reaction from dye used in a treatment. G alleged that the therapist had been in breach of her duty of care and that the salon owner was vicariously liable.

Decision      1. The owner was vicariously liable.

  1. It was just, fair and reasonable for vicarious liability to be imposed. There was a relationship akin to employment.
  2. The therapist had undertaken activities entrusted to her by the salon owner as an integral part of business activities and for the benefit of the owner.
  3. The negligence had been a risk created by the owner by assigning those activities.
  4. The therapist’s negligence had been sufficiently closely connected to her relationship with the owner to justify the imposition of vicarious liability.

Unregistered gas worker sentenced to imprisonment

Unregistered gas fitter sentenced to prison

Health and Safety Executive v Richard Trezise (2018) Nottingham Crown Court, July 30

Statutory reference: Gas Safety (Installation and Use) Regulations 199 (GSIUR)

Richard Trezise, a gas fitter, has been sentenced for carrying out unsafe gas work.

The facts

  • Between May 2015 and July2016 Trezise carried out work at seven different locations when unregistered and falsely pretending to be Gas Safe registered.
  • He produced landlord’s Gas Safety Certificates and used the number of anther business which had never heard of him. He left customers with faulty installations which presented risks of gas leaks and dangerous accumulations of combustion products.

The decision

Trezise was sentenced to 16 months imprisonment for 21 offences under GSIUR.

The Crown Court Judge is reported to have commented that faulty gas installations can lead to gas leaks, explosion and death. This is the reason that the regulations exist and why a breach of them is likely to be regarded as extremely serious.


Farm worker dragged into reed combing machine

Farm worker dragged into reed combing machine

Health and Safety Executive v Dullam & Co (Farmers) Ltd  (2018) Exeter magistrates’ court, July 25

Statutory reference: regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (PUWER).

Dullam & Co (Farmers) Ltd has been fined after a worker was dragged into a reed combing machine.

The facts

  • In March 2017 John Dullam, a director of the company, was working on the machine at a farm in South Molton. His overalls became entangled in the drum feed intake. His legs were pulled into the machine and were trapped. He suffered serious injuries.
  • The drum belt feed intake had no effective guarding to prevent any person coming into contact with drum. Following a blockage, Dullam climbed onto the machine and stepped down onto the platform where the drum feed mouth was located. The machine restarted and caused his overalls to become entangled in the drum belt. He was drawn feet-first into the machine.

The decision

The company was fined £6000 plus £1000 costs plus a victim surcharge of £120 under regulation 11 of PUWER.


Unsafe scaffolding: suspended prison sentence

Unsafe scaffold work: suspended prison sentence

Health and Safety Executive v Steven David Connolly (2018) Medway magistrates’ court, June 26

Statutory reference: regulations 6 and 8 of the Work at Height Regulations 2005 (WAH).

Steven David Connolly, a scaffolder, has been sentenced following unsafe working practices.

The facts

  • In August 2016 Connolly was working at a site in Chatham. An HSE inspector observed him using unsafe working practices when erecting scaffolding.
  • He was at serious risk of falling from the scaffold. He refused to work safely and abused the inspector. He left the scaffold in an unsafe and incomplete condition with no warning for subsequent users. He refused to provide his identity.

The decision

Connolly was sentenced to 24 weeks imprisonment suspended for 18 months. He was also ordered to be electronically tagged and to be subject to a curfew between 9 a.m. and 5 p.m. at his home address, plus £2000 costs.


£260,000 fine for serious multiple injuries from fencing panels

Fencing panels crush injuries: £260,000 fine

Health and Safety Executive v Blok N Mesh Ltd (2018) Liverpool magistrates’ court, July 9

Statutory reference: ss. 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA).

Blok N Mesh Ltd, a security fencing manufacturing company, has been fined after a worker was injured when fencing panels fell on him.

The facts

  • John Evans, an employee of the company, was manually loading fencing panels into shipping containers at the company’s site in February 2017.
  • Approximately 34 panels fell onto him He suffered multiple injuries including multiple fractures.
  • Workers were put at risk by the company not having suitable control measures in place to prevent the panels from falling.
  • There had been two previous similar incidents which should have warned the company that the loading procedure was dangerous.
  • The company had also failed to ensure that work was sufficiently planned, that risks were assessed and controlled, and that a safe system of work was in place.

The decision

The company was fined £260,000 plus £5000 costs under ss.2 and 3 of HSWA.


Poor health and safety conditions on construction site: contractor, client and director sentenced

Contractor, client and director sentenced for dangerous building site

Health and Safety Executive v Bodnariu, WEL Estates Ltd and Lew (2018) Southwark Crown Court, July 17

Statutory reference: s.37 of the Health and Safety at Work, etc., Act 1974 (HSWA) and regulations 4 and 15 of the Construction (Design and Management) Regulations 2015 (CDM)

Two individuals and a company have been sentenced for poor health and safety conditions on a construction site.

The facts

  • HSE inspectors visited a construction site in London in 2015. They found poor health and safety conditions including dangerous work at height, unshored excavations and poor welfare facilities.
  • A number of prohibition notices, improvement notices and notices of contravention were served on the contractor and the client.
  • Bodnariu, the contractor, failed to plan, manage and monitor the work. WEL Estates Ltd, the client company, failed to make suitable arrangements for the management of the project and Yeol Lew, director of the company, had allowed poor conditions on site.

The decision

  • Bodarniu was sentenced to eight months suspended imprisonment, 250 hours community service and £1000 costs under regulation 15 of CDM.
  • WEL Estates Ltd was fined £20,000 plus £5000 costs under regulation 4 of CDM.
  • Lew was sentenced to 200 hours community service for a breach of s.37 of HSWA.