Policy News Journal - 2014-15

Anne-Marie Winton, partner at law firm Nabarro, said:“[The] calculations in that guidance are based on assumptions that if you’re in a final salary scheme, when you get a new job you’ll go back into an open final salary scheme.” Since this approach to calculating pension losses is only guidance, the judge may also take into account more current pensions practice, she said, which could result in a claimant being entitled to a greater amount of compensation. However the judgment also recommended the guidance used for assessing future pension loss was in need of review. It stated: “There have been a number of important changes in pension law and practice since the current edition of the guidance was published in 2003, and others are imminent: the extent to which its recommendations on particular points remain valid will increasingly need to be carefully considered.” Mark Howard, partner at law firm Clyde & Co, said in future claimants may look at this section and “realise there is scope to attack the guidance itself as being out of date". “Employers faced with claims should anticipate this and consider what might the pensions loss be based on more up-to-date assumptions,” he said. However, Howard said it is not just the claimant who might argue the guidance should be ignored since the substantial loss approach assumes a final salary pension scheme. “Since 2003, some final salary schemes will have switched to career average, so the pensions loss would be less than the substantial loss approach would imply,” he said. Lesley Browning, partner at law firm Norton Rose Fulbright, said while the substantial loss approach is already uncommon, it will become even less so as final salary membership diminishes. “Historically the substantial loss approach was used in a lot of cases, for example armed forces cases where a woman was unfairly dismissed because she was pregnant,” added Browning.

Meaning of employee

6 October 2014

The Employment Appeals Tribunal (EAT) have ruled in a case about the status of workers engaged for a number of short term contracts.

Thanks to Emplaw for this report on the EAT decision in Windle & Arada v Secretary of State for Justice.

The EAT had to consider whether the claimants, when providing their services to the Secretary of State for Justice as interpreters, were employees within the meaning of s.83 (2)(a) Equality Act 2010 and in particular whether, when providing those services, they were employed under a contract personally to do work. The interpreters had been engaged personally to do work on a significant number of short term contracts. An Employment Tribunal (ET) had found against the employees, noting the absence of mutuality of obligation and making this a central part of its decision. The EAT overruled the ET and held that the issue of mutuality of obligation was irrelevant when deciding whether the interpreters fell within the scope of s 83(2) Equality Act 2010 (‘employment under […] a contract personally to do work’). The EAT noted that it was for the ET to determine whether the interpreters provided their services under a position of subordination to the Secretary of State or whether they were truly independent providers of services to the world at large and the Secretary of State was but one of their professional clients. However a lack of exclusivity was not determinative. As the Court noted, there is a distinction between different categories of employment in different areas of employment law. The jurisprudence applicable to one category will not necessarily apply to another. Mutuality of employment was only relevant when establishing whether someone was employed under a contract of employment (a ‘category a’ worker). Here it was necessary to distinguish between a category (a) worker and a category (b)

CIPP Policy News Journal

08/04/2015, Page 125 of 521

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