Employment lawBy Martin Edwards, Mace & Jones, LiverpoolEmployment statusMontgomery v Johnson Underwood Ltd, The Times, 16 March 2001The Court of Appeal ruled that a person who obtained a long-term specific assignment through an employment agency and sought to establish that she was employed by that agency had to show that there was both some form of mutual obligation and control of her by the agency.Mr Justice Buckley accepted that an offer of work by an agency, even at anothers workplace, accepted by the individual for remuneration paid by the agency, could satisfy the requirement of mutual obligation.

But here there was a clear finding by the employment tribunal leading to the conclusion that any control of the worker by the agency was at most indirect in respect of how, when and where she performed her work.

So the tribunal had not been entitled to find that she was an employee eligible to claim unfair dismissal.National and ethnic originsBBC Scotland v Souster (2001) IRLR 150An English journalists contract was not renewed by BBC Scotland and a Scottish woman was appointed to the post.

He complained of unlawful racial discrimination.

The employer argued that the English and Scottish are not distinct racial groups and that national origins means simply the nationality acquired by an individual at birth.The Court of Session held that the journalist could bring his claim under the umbrella of national origins.

That phrase, contained in s3(1) of the Race Relations Act 1976, is not limited to nationality in the legal sense and thus to citizenship acquired at birth.In any event, nationality can encompass a change in nationality and can be referable to present nationality.

Equally, a person can become a member of a racial group defined by reference to origins through adherence, for example by marriage.

So a person can be discriminated against on grounds of his English nationality where it has been acquired by adherence or adoption since his birth or because he is perceived to have become a member of the racial group, the English.It is for him to prove that he is English, on whatever basis.

However, neither the English or the Scots are an ethnic group within the meaning of the Act, because the distinctive racial element required for recognition as an ethnic group is lacking.The cohesiveness which serves to identify each as a separate racial group is largely derived from history and geography, but the English lack that particular and individual distinctiveness of community which is characteristic of an ethnic group.CronyismLord Chancellor and Lord Chancellors Department v Coker and Osamor (2001) IRLR 116A majority of the Employment Appeal Tribunal (EAT) decided that a tribunal had erred in finding that Lord Irvines requirement that the person he was to appoint as his special adviser must be personally known to him had a disproportionate impact as between men and women.It could be said that there was no relevant pool for comparison because Lord Irvine intended from the outset to appoint one specific person and thus could be said to have discriminated against everybody else, men and women.The case was a very special one because of the nature of the post of special adviser.

The tribunal was entitled to conclude that Lord Irvine had failed to discharge the burden of justifying his requirement that the successful candidate must be personally known to him.The EAT added that it is only in the rarest of cases that a failure on the part of an employer or potential employer to follow a relevant code of practice should be ignored in the assessment process with regard to his or her conduct.The editor of the IRLR points out possible flaws in the majority reasoning.

As he says, there is no evidence that Parliament intended that the bar on discriminatory selection arrangements can be circumvented by the simple expedience of not having any selection arrangement.

The views of the Court of Appeal are awaited with interest.TupeCheesman and Others v R Brewer Contracts Ltd (2001) IRLR 144The EAT set out five principles relevant to deciding whether there is an undertaking for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations (Tupe), and no fewer than 12 principles relevant to deciding whether there has been a transfer.As to the latter, the decisive criterion is whether the entity in question retains its identity, as indicated (amongst other matters) by the fact that its operation is actually continued or resumed.A tribunal chairman had erred both in the emphasis he gave to the question of retention of the workforce and also by failing to treat the question of whether or not there was a stable economic entity as separate from whether or not there was a relevant transfer.Without knowing exactly what the relevant entity is, a tribunal is likely to mislead itself as to whether that entity has been transferred.

Oy Liikenne AB v Liskojarvi and Juntunen (2001) IRLR 171The tenor of this decision of the European Court differs from that of the EATs ruling in Cheesman.Thirty-three out of 45 bus drivers were re-engaged by the new operator following a change of bus contractor.Nevertheless, the European Court did not accept that there had been a transfer of an undertaking because bus transport cannot be regarded as an activity based essentially on manpower, as it requires substantial plant and equipment and no vehicles connected with the operation of the bus routes were transferred.Where tangible assets contribute significantly to the performance of the activity, the absence of a transfer of those assets, which are necessary for the proper functioning of the entity, must lead to the conclusion that the entity does not retain its identity.

This is a surprising conclusion fiercely attacked by the editor of the IRLR and it seems likely to deepen the confusion over the proper interpretation of TUPE and the Acquired Rights Directive.Pay in lieu of noticeCerberus Software Ltd v Rowley (2001) IRLR 160The Court of Appeal held that a contract provision that the employer may make a payment in lieu of notice gives the employer the choice whether or not to make such a payment.

It is totally inconsistent with the employee having a contractual right to insist on such a payment being made.On the facts, the contract expressly provided that the employment would continue unless and until determined by either party giving the other not less than six months notice.In ignoring that and choosing to terminate summarily, the employers were in breach of contract.

Thus, the employees claim was for damages for breach of contract (that is, for wrongful dismissal) and the measure of damages was the amount that he would have earned had the employment continued, subject to the ordinary rule that the employee must minimise his loss by using due diligence to find other employment.The case was distinguishable from that of Abrahams v Performing Rights Society (1995) IRLR 486, where the wording of the contract gave the employee a right to payment in lieu which was a contractual entitlement not in the nature of the claim for liquidated damages and thus not subject to a duty to mitigate.

Contract draftsmen would do well to note this important decision.Tribunal proceduresClapson v British Airways plc (2001) IRLR 184The EAT has confirmed that an employment tribunal can of its own motion require any person, including a party, to attend as a witness.