Case round up

first_imgCase round upOn 30 Sep 2003 in Personnel Today Case round-up by Eversheds 020 7919 4500Stress and constructive dismissal Marshall Specialist Vehicles Limited v Osborne, EAT, 30 April 2003 Osborne was a high-level financial director for Marshall Specialist Vehicles(MSV). As a result of the company getting into difficulties, she and hercolleagues took on extra work and worked long hours – without complaint, and ofher own accord. Eventually, Osborne resigned because of being overworked, which led to anervous breakdown, and successfully claimed constructive dismissal. The tribunal implied a term into her employment contract that an employermust not impose on an employee, or acquiesce in their assumption of, a workloadwhich it is reasonably foreseeable may cause physical or mental injury. MSV hadtherefore fundamentally breached this implied term. MSV appealed. The EAT upheld the appeal. The tribunal had manufactured an implied termwhich it then found the employer had breached. A general term is implied in allemployment contracts that the employer should take reasonable care for thehealth and safety of its employees. To succeed in a constructive dismissal case based on a breach of this term,an employee must: a) establish that the risk of injury was foreseeable, (b) establish theemployer was in breach of its duty, and (c) establish this breach amounted to afundamental breach of the employment contract. However, in Osborne’s case, there was insufficient evidence of stress toenable her to succeed under the common law principles which applied inSutherland v Hatton case: the harm to Osborne was not reasonably foreseeable,taking into account such factors as the nature and extent of the employee’swork, costs and practicality of preventing harm, and the size of the employer. The tribunal had not considered all the relevant questions, and the case wasremitted back to a fresh tribunal. Worker on temporary assignment did not transfer Securiplan v Bademosi, EAT, 9 May 2003 Bademosi worked for Securiplan as a security officer at a site owned byCable & Wireless (C&W) for 21 years. Following an accident at work in July 2000, he was unfit to work untilNovember. As there was no vacancy for him to return to at C&W, hereluctantly began working on a temporary basis (expressly agreed at the outset)at Marylebone Magistrates Court in January 2001. On 3 December 2001, Bademosi was told he would return to C&W in January2002. However, on 6 December, while he wasn’t at work, the court contract wasawarded to another employer. The return date to C&W was confirmed by aletter dated 7 December, but Bademosi didn’t receive it until 13 December. Meanwhile, Bademosi received a call from his supervisor informing him thecourt contract had been terminated. As he had not been allocated any new work,he resigned on 11 December with immediate effect, and successfully claimedunfair constructive dismissal and breach of contract by Securiplan. The tribunal held that Bademosi’s rights had not transferred under TUPE, butSecuriplan appealed. The EAT dismissed the appeal. Bademosi’s assignment to the court wasexpressly agreed to be temporary. He wasn’t assigned to the court contract atthe time of the transfer. His contract didn’t terminate by reason of thetransfer; he would revert to his duties at the C&W site or to othertemporary assignments. Related posts:No related photos. Comments are closed. Previous Article Next Articlelast_img

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