Employment lawBy Martin Edwards, Mace & Jones, Liverpool

Contract workers and discriminationAbbey Life Assurance Co Ltd v Tansell (2000) IRLR 387The Court of Appeal upheld the Employment Appeal Tribunal's decision that the applicant, who was employed by a company which supplied him to an agency, which in turn supplied him to an end-user, was a 'contract worker' who could present a disability discrimination claim against the end-user as being a 'principal'.Mummery LJ acknowledged that, on the facts, 'the particular contractual arrangements do differ from the standard case as to parties and number.

But for the employee, the realities of life in the workplace remain the same in each case...

it is more probable that Parliament intended to confer than to deny protection from discrimination in cases where the supply of the employee was made by his company to the principal via an employment agency rather than direct to the principal.'

TUPEMaxwell Fleet & Facilities Management Ltd (In Administration) (2000)IRLR 368In this case, the High Court construed reg.4 of Transfer of Undertakings (Protection of Employment) Regulations (TUPE) so as to defeat 'an ingenious device, designed to deprive employees of protection which would otherwise be available'.

A series of transactions, by which an undertaking was transferred by administrators via an intermediary to an ultimate transferee, had the effect under reg.4 of transferring to the ultimate transferee liabilities under the contracts of employees employed in the undertaking immediately before the first transfer, even though (in order to side-step TUPE) the administrators had dismissed the employees before the first transaction took place, so that no-one was employed by the intermediary company.

The reality was that an intermediary was only introduced into the transaction for the purpose of achieving the mutual wish of the contracting parties to transfer the business 'stripped of the liability to employees'.

Settlement agreementsBank of Credit & Commerce International SA v Ali andOthers (2000) IRLR 398The Court of Appeal (by majority) ruled that a COT3 agreement under which the employee accepted an additional payment 'in full and final settlement of all or any claims whether under statute, common law, or in equity of whatsoever nature that exists or may exist', included a claim for 'stigma' damages even though, when he signed the agreement, the employee did not know that he could bring such a claim.The employers intended the agreement to draw a line under all claims arising from the employment relationship, past or future, known or unknown, and of whatever legal nature.

However, the Court of Appeal went on to say that a court of equity has power, in proper circumstances, to give relief from the unintended consequences of words used.

When he signed the agreement, the employee was unaware of the employer's illegal and dishonest conduct of its business which could give rise to a stigma claim, whereas the employer know of the underlying facts and deliberately concealed them.

In those circumstances, it would be unconscionable to let the employer take advantage of the employee's ignorance.This decision, like the others covered in this article, reflects a pragmatic approach to the issues - which is to be welcomed.