The Claimant was engaged as a scaffolding supervisor under a chain of contracts whereby the contractor (Mears) contracted with another company (Potensis) for the provision of subcontractors. Potensis in turn contracted with the Respondent (Boss) for the provision of individuals. Payment was made down the chain to Boss, who in turn paid the Claimant. The Claimant’s contract with Boss described the Claimant as a ‘subcontractor’ and ‘in business on his own account’. It gave absolute discretion to substitute or delegate his workload or hire assistants for which he was solely financially responsible. It permitted the undertaking of other work before, after or concurrently with work for Boss. It explicitly provided no entitlement to holiday or sick pay and rendered the Claimant liable for his own tax and national insurance. Mr Justice Mitting (sitting alone) found contractual terms, however watertight, do not provide a complete or reliable definition of the nature of the relationship between the parties to a contract. The EAT continued to conclude the Claimant could not have been expected to have read every page and, in the circumstances, the tribunal was right to look to substance as well as form. He concluded the substitution clause was never intended to be used by either party and observed the Claimant brought none of his own tools to the job. As such, despite express contractual provision otherwise, the Claimant was a worker.
Discrimination: Dismissal after end of maternity period
12 March 2014
Does dismissal for absences due to post-natal depression arising after maternity leave amount to sex and/or pregnancy and maternity discrimination under s.13 or s. 18 of the Equality Act 2010?
No, held the EAT in Lyons v DWP JobCentre Plus .
Daniel Barnett’s Employment Law Bulletin summarises the case:
By being dismissed, the Claimant was treated unfairly for a pregnancy-related illness. However, unfavourable treatment only amounts to discrimination under s.18 of the Equality Act 2010 if it occurs between the beginning of pregnancy and the end of maternity leave (the protected period). As the Claimant was dismissed after the protected period her claim under s.18 failed. The Claimant's claim for direct sex discrimination under s.13 of the Equality Act 2010 also failed. Following the ECJ case of Brown v Rentokil, the EAT held that if a woman suffers a pregnancy-related illness which extends beyond the period of her maternity leave, the employer is entitled to take into account the period of absence after the maternity leave and compare that period with any period of sickness of a man.
European court ruling: Receiving surrogate mother not entitled to maternity leave
24 March 2014
Does a commissioning mother in a surrogacy arrangement fall within the scope of the Pregnant Workers Directive, particularly where she has breastfed the child following birth?
No, according to the opinion of the Court of Justice of the European Union (CJEU).
Daniel Barnett’s Employment Law Bulletin summarises the Case C 167/12 CD v ST .
CIPP Policy News Journal
16/04/2014, Page 130 of 519
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