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Case round up

first_img Previous Article Next Article Case round upOn 4 Nov 2003 in Personnel Today Comments are closed. This week’s case round upSub-contractor entitled to holiday pay Cavil v Barratt Homes Ltd, EAT, 1 July 2003, IDS Brief 744, November2003 Cavil, a joiner, worked under a labour-only sub-contract for Barratt Homesfor about four months. He was expected to inform the company if he was off sickor would be on holiday, but was not required to book holiday in advance. Noprior approval was needed for Cavil to provide a substitute worker in hisabsence, and in practice, this situation rarely arose as he chose to do thework himself. Cavil claimed unpaid holiday pay under the Working Time Regulations.Initially, his claim failed when an employment tribunal decided he did not fallinto the category of being a ‘worker’, which is a prerequisite to beingentitled to holiday pay under the regulations. The EAT, however, disagreed. Mutuality of obligation is a necessary elementof a contract for services, and looking at the contract between Cavil andBarratt as a whole, the EAT found that it did impose an obligation on Cavil todo the work undertaken himself. Cavil was offered a steady supply of jobs onvarious sites, and he completed this work until he finally stopped working forthe company. In these circumstances, the EAT decided that Cavil was a ‘worker’,and was therefore entitled to holiday pay. Rejection of a disabled job applicant Mallon v Corus Constructions and Industrial, EAT, 29 September 2003, NewLaw Online, 3 October 2003 Mallon was an experienced nurse who suffered from diabetes, controlled bythe self-injection of insulin. She was interviewed for an occupational health nurse position with Corus,but the interview was ended when Mallon told them about her diabetes. She wasnot offered the post on the basis of Corus’s stringent medical guidelines, andbecause the company considered that, as a lone worker, Mallon would be at riskdue to her insulin dependency. Mallon’s claim for disability discrimination was considered both by anemployment tribunal and by the EAT. Corus’s premature termination of theinterview and refusal to offer employment did amount to less favourabletreatment for a reason related to Mallon’s disability. However, such less favourable treatment was justified in this case. Malloncould not guarantee that she would never suffer from an attack related to herdiabetes. Corus had carried out investigations and made a reasonable risk assessment basedon medical guidance. There was a known risk, supported by medical opinion,which justified Corus’s stance, and there were no reasonable and effectiveadjustments that could have been made. Even if Corus could have made reasonable adjustments, it would not haveprevented or avoided the risk of Mallon suffering uncontrolled attacks. Related posts:No related photos.last_img read more