Convey and Others v Saltire Press Ltd and Anderson Key Printers Ltd

The Court of Session in Scotland has upheld an Employment Appeal Tribunal (Scotland) ruling that 11 "casual" newspaper printers were employees and so entitled to protection under the Employment Rights Act 1996. In a GPMU backed case run by Thompsons, the court also upheld the earlier ruling by the Employment Tribunal.

It is a significant case which clearly demonstrates that an Employment Tribunal is entitled to look at all the circumstances of a work relationship and reach its own conclusions as to employee status. It serves as a stark reminder to employers that "casual" does not necessarily mean "no rights at work".

Once enacted, Clause 21 of the Employment Relations Bill will give the government power to extend employment rights beyond "employees". A most welcome and long overdue change which will eventually render unnecessary lengthy and expensive cases of this type and abolish two tier worker status.

Mr Convey and ten other printers claimed unfair dismissal and redundancy in connection with the transfer of the printing of the Scottish Daily Record Newspaper from Anderson Quay Printers Ltd to Saltire Press Ltd. At the time of the transfer the printers were sacked and received neither TUPE protection nor a redundancy payment.

At a preliminary hearing in the Employment Tribunal, both Anderson and Saltire argued that the printers were not employees and therefore not entitled to any employment protection. The employers argued that the GPMU was primarily responsible for controlling the casual list, none of the applicants had been issued with contracts of employment, the printers regularly carried out work on other newspapers, and none of them were obliged to attend work at the newspaper. They also argued that there were occasions when months passed when no work was provided.

Arguing that an employment relationship did exist, the printers said that they were provided with wage slips and tax and national insurance was deducted at source. They also pointed to the fact that they were issued with a locker on starting work and received training.

The printers said they were regularly contacted directly by the employers and there was a clear expectation on their part that they should be provided with work. Indeed, evidence was heard that many of them had worked for the company over a period of between four and 11 years and had received mortgages on the strength of their income.
They argued that they were employees. The Employment Tribunal agreed.

Anderson and Saltire appealed to the EAT on the grounds that the Employment Tribunal had erred in law by concluding that the printers were employees. The EAT upheld the Employment Tribunal's decision and the employers appealed to the Court of Session (Scotland's equivalent of the Court of Appeal in England).

The Court agreed that the Employment Tribunal were entitled to make the decision they did on the facts available to them, refused the appeal, and remitted the case back to Employment Tribunal to consider the full case on the basis of the casuals being employees with full rights.

"Mind the gap" says EAT

Sweeney v J & S Henderson (Concessions) Ltd [1999] IRLR 306

Any week during the whole or part of which an employee's relations with her or his employer are governed by a contract of employment counts towards the period of continuous employment and preserves continuity (section 212(1) Employment Rights Act 1996).

Mr Sweeney resigned with immediate effect on a Saturday. He started a job with a different employer straight away, but returned to his original employer on the next Friday. Did the gap of five days count towards Mr Sweeney's period of continuous employment and was continuity preserved? A "week" is a week ending on Saturday (section 235). Both relevant weeks therefore satisfied the conditions of section 212 - they both therefore counted towards Mr Sweeney's period of continuous employment and continuity was preserved.