|Due By (Pacific Time)||12/31/2016 12:00 am|
Case Study 1
From January 1999 until his dismissal, Wendell Bracken (‘WB’) had worked as a cake decorator at The Cake Whole Ltd (‘the Company’).The Company is a patisserie and bakers with eight outlets in the West Midlands region. It has a number of cake decorators that work throughout its shops providing a bespoke service to clients. The Company specialises in expensive celebration cakes, mostly for birthdays and weddings, producing dream designs for the customer’s special day.
WB is a highly skilled worker, having trained in Paris, Switzerland and London during the mid-1990s and is very experienced in the creation of designs from cake icing.
WB was provided with a document by the Company when he started working for them titled ‘Agreement for the provision of confectionery services’. The first two clauses of the agreement stated:
‘1. Wendell Bracken is an independent contractor of the Company, in business on his own account.
2. Nothing in this Agreement shall render Wendell Bracken an employee, agent or partner of the Company and it shall expressly not be liable to account for his income tax and value added tax and social security contributions’.
The remainder of the agreement (not reproduced for the purposes of this assessment) contained further clauses detailing the relationship between the parties. Although the Company has contracts with 25 cake decorators, across its 8 stores, WB was required to work at the Company’s shop and small attached bakery in Brewood. WB was further required to attend the Brewood bakery for 20 hours per week (described as his ‘normal working hours’). If he did not wish to work a particular shift he was required to notify the Company at least four weeks in advance and they would find a suitable replacement. However, WB was also required to be available for at least 40 weeks per year or he would be subject to the Company’s disciplinary procedure. There was no express provision allowing WB to provide a substitute for any services he had agreed to provide but, in practice, all cake decorators could transfer shifts to other contractors from an approved list.
The Company provided a working space in the bakery and provided all of the ingredients for the icing and a uniform embroidered with the Company logo that staff were required to wear, but WB brought his own tools, including his sculpting knives and stencils. Despite the provision for ‘normal working hours’, the agreement also provided that WB was free to accept or reject customer orders during his time at the Brewood shop. It was also made clear that if there were no orders to be met then no work would be provided.
WB was not paid a salary but, instead, was given a copy of the receipt for each order he completed and was required to produce these to the Company’s finance department at the end of each month. He was then paid an agreed percentage of the customer fee. WB was never paid sick pay or holiday pay.
WB was provided with works rules and the agreement makes it clear that if these are breached staff will be subject to the Company’s disciplinary procedure. The works rules include detailed provisions in relation to health and safety and the cleanliness of operatives and their work station. The rules provide for significant sanctions in the case of breach of health and safety. If workers do not keep themselves and their work station clean or wear protective clothing then dismissal may result.
In March 2010 during a routine inspection of work stations, the Company discovered that WB had long and dirty fingernails and was not wearing gloves while decorating a cake. WB was provided with a written warning that remained on his file for twelve months.
In January 2016 WB was seen by a shift supervisor to be scratching an area of eczema on his arm and then moulding icing on a large cake without gloves. He was given a further twelve month written warning.
In July 2016 the shift supervisor was in the work toilets when he observed WB and another operative (Edmund Vincennes, who was only very recently qualified and has a clean disciplinary record) leave their respective toilet cubicles without washing their hands and return to their work stations. Both operatives were questioned and after admitting to not washing their hands were asked to leave work immediately. No further investigation was felt necessary and both were instantly dismissed.
Both workers were given the opportunity to appeal. At their respective hearings, Edmund Vincennes had his dismissal overturned and was given a final written warning. WB’s dismissal was, however, confirmed.
1. Advise the Company whether WB will be able to demonstrate that he is an employee for the purposes of employment protection.
2. Assuming that WB can be classed as an employee, discuss whether he has a potential claim for Unfair Dismissal.
Case Study 2
Lynn Hudgens (‘LH’) has been employed at the Black Country College (‘the College’) in Tipton since July 2012 as a ceramics lecturer. LH is part of a team of lecturers and her contract requires her to teach for 15 hours per week. As the College has both full-time and part-time cohorts, it is common practice for all lecturers to take one three hour evening class (from 6pm until 9pm) per week during term-time as part of their teaching allocation.
During January 2016, LH began to feel very ill. She was subject to mood swings and also found herself suffering from involuntary tics. On seeking medical assistance she was diagnosed with Huntington’s Disease. Huntington’s disease has no cure and medication can only partly overcome the symptoms. The illness has affected LH’s communication; the illness causes her to struggle to put her thoughts into words and leads to slurring which makes it very difficult for other people to understand her. This is much worse later in the day. In the mornings, aside from a slight slurring, the effect is far less.
LH’s mobility has been very severely affected and she trips and stumbles when walking. This is caused by uncontrollable jerking of her arms and legs and this becomes worse later in the day, when she often falls and cannot walk for more than five or ten metres before resting. In the morning, the jerking is far less pronounced and she is commonly able to walk for up to 100 metres before needing to stop.
LH had 6 months off work, returning just before the summer holidays in early July. The Principal of the College explained that the College would do all that it could to help her back to work and she was moved to a downstairs office and teaching room.
On her return to work in September 2016, LH discovered that she had been timetabled, with all of the other members of staff, to teach twelve daytime hours and three hours in the evening per week. She approached her Head of Department, Sid Patchett (‘SP’), to explain her concerns and asked to teach just during the day but was told everyone had to do evenings and to see how things went.
In early September, during her first teaching session, she became very tired after thirty minutes and found that she was slurring her words to such an extent that she could hardly talk. She had to sit throughout the session and could not complete the practical pottery demonstration as her involuntary flinches meant she could not control the potter’s wheel.
After the session LH spoke to SP once more and explained that she had been perfectly capable of teaching during the day, but could not manage in the evening. He said that this was part of the job, it wasn’t fair to expect the other teaching staff to take another evening session, and she would just have to find a way to cope.
LH is now considering giving up her job.
3. Advise LH whether she has any claim under the Equality Act 2010 against the College.
Following her making a formal complaint, the Black Country College (‘the College’) agreed to allow Lynn Hudgens (‘LH’) to teach only in the morning. The direct result has been that colleagues in her department have had to teach an extra evening session every 7 weeks, although they have a corresponding drop in daytime teaching.
A Senior Lecturer in her department, Dudley Meeks (‘DM’), was particularly unhappy at the change in the rostered teaching. When the change was announced at a staff meeting he said ‘bloody malingerers, guess we’ll have to do the real work then!’
Later that week DM brought a radio into the staff room while LH was present. He tuned it to the Paralympics and started to listen to the wheelchair tennis. He then called across ‘Hey Lynn, I’ve got your lot on the radio’. He then added ‘You should take up this sport, you can sit on your arse all day’. LH was terribly upset and left the staff room in tears.
In an attempt to resolve the ill feeling, LH approached DM last week and apologised that he had an extra night session each half term. She would, however, gladly teach the session in return for her health. DM replied ‘You don’t fool me, you’re f***ing lazy and we all suffer as a result, get out of my way’.
LH approached her Head of Department Sid Patchett and the College Principal to explain the problems she was suffering. They both explained that ill-feeling was a natural consequence of changing working practices, neither had wanted to force other staff to teach more nights and she only had herself to blame. They said that it would all hopefully die down soon and she should keep herself-to-herself. LH is once more distraught.
4. Advise LH whether she has any further claim under the Equality Act 2010 against the College following the actions of DM.
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