Category: Employment

Parkview Care Ltd v Fenn: EAT 2 Oct 2019

Contract of Employment – Incorporation Into Contract
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
UNFAIR DISMISSAL – Constructive dismissal
UNFAIR DISMISSAL – Contributory fault

The Employment Appeal Tribunal heard this appeal against the judgment of the Employment Tribunal. It was argued that the Employment Tribunal should have paid more heed to the underlying misconduct of the employee, the Claimant, who had lied to the Appellants about his whereabouts and taken time away from work when driving a company car although ostensibly working for the Appellants. However, the Employment Appeal Tribunal was satisfied that the primary cause of the constructive dismissal was the unfairness of the disciplinary meeting and that the Claimant’s resignation was primarily due to the handling of his misconduct and not his prior misconduct. The Appellants appeals in this connection were rejected. The Employment Appeal Tribunal was persuaded however that the deduction for contributory fault was perversely low. His dishonesty and misuse of company time was a significant factor. The Employment Appeal Tribunal indicated that it was minded to assess the contributory at 20% but invited submissions in writing before making a final decision. The Employment Appeal Tribunal was also persuaded on a construction of the contractual documentation that the Appellants had agreed to pay an allowance for time spent ‘sleeping in’, when the Claimant was providing care in the course of his employment. The Employment Appeal Tribunal therefore overturned the Employment Tribunal’s finding that he was entitled to be paid at his normal hourly rate.

Citations:

[2019] UKEAT 0112 – 19 – 0309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 October 2022; Ref: scu.646856

Cadent Gas Ltd v Singh: EAT 8 Oct 2019

Automatically Unfair Dismissal
The Claimant, an active trade union member, was a gas engineer. He was required to respond to priority gas leaks without delay. On 19 June 2017, he was called out to a gas leak at 1.13am. The Claimant had not rested properly or eaten for some time but accepted the job. Instead of going directly to the leak, he stopped for some food without telling Dispatch. He arrived at the premises 1 minute outside the hour stipulated in the service level agreement (SLA). The failure to meet the SLA was noticed by Mr Huckerby, a manager with whom the Claimant had had difficulties in the past relating to his union activities. Mr Huckerby played a leading role in the investigation. In the course of internal emails, Mr Huckerby referred to the Claimant’s trade union status which he wanted to keep ‘on the radar’. The Tribunal found these references to be unexplained as were various other steps taken by Mr Huckerby, including his own involvement which was not the norm for a manager of his seniority. Mr Huckerby was also found to have given incorrect information to HR and to the dismissing officer in the course of the investigation. The disciplinary hearing was conducted by Mr Wilson, who had not had any prior involvement. He decided to dismiss the Claimant for gross misconduct.
The Claimant claimed, amongst other matters, that the reason or principal reason for his dismissal was because of his trade union activities contrary to s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Tribunal upheld that complaint. In doing so it had concluded that Mr Wilson and Mr Dennis (the manager hearing the appeal) were not motivated by prejudice against the Claimant for his trade union activities and cited a case (Dundon v GPT) that was not mentioned in the course of the hearing. The Respondent appealed on the grounds that having found that Mr Wilson and Mr Dennis were not motivated by prejudice against the Claimant for his trade union activities that was the end of the case, and that there was no scope for attributing Mr Huckerby’s trade union animus to the Respondent in these circumstances.
Held, dismissing the appeal, that the Tribunal’s finding that Mr Wilson and Mr Dennis were not motivated by prejudice did not preclude a finding that trade union activities played a part in their reasoning. The reference to Dundon was not incorrect and it had not played such a central role in the Tribunal’s judgment that there was any material injustice caused by not giving the parties an opportunity to comment on it.
In any event, the Tribunal’s analysis was such that it fell into one of the manipulator scenarios posited by Underhill LJ in Royal Mail v Jhuti [2018] ICR 982. In particular, Mr Huckerby was a manager deputed by the employer to carry out the task of investigating the misconduct. His leading role in the investigation was such that it was appropriate, in the circumstances of this case to attribute his motivation to the employer, even though that motivation might not be shared by Mr Wilson or the appeal officer, Mr Dennis.

Citations:

[2019] UKEAT 0024 – 19 – 0810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 October 2022; Ref: scu.646852

The United Road Transport Union, Regina (on The Application of) v Secretary of State for Transport: Admn 13 Jul 2012

The claimant Union sought judicial review of the Secretary of State’s refusal to introduce secondary legislation to provide for a similar right which, it is submitted, is required to give effective enforcement rights, particularly a statutory right to apply to an employment tribunal for a declaration and/or compensation if he is required to work in contravention of the regulations that regulate breaks and rest periods during working hours to members employed in the road transport industry, mostly as drivers of commercial road vehicles.

Citations:

[2012] EWHC 1909 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Transport

Updated: 15 October 2022; Ref: scu.462910

Aniagwu v London Borough of Hackney: EAT 21 Jul 2000

Citations:

[2000] UKEAT 929 – 99 – 2107

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Aniagwu v London Borough of Hackney and Another EAT 2-Sep-1998
. .
See Also – Aniagwu v London Borough of Hackney and Another EAT 11-Feb-1998
Appeal from refusal of jurisdiction . .

Cited by:

See Also – Aniagwu v London Borough of Hackney EAT 18-Jul-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Appeal by A from a decision of an Employment Tribunal that he had been unfairly dismissed by the London Borough of Hackney from . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 October 2022; Ref: scu.265346

Wright v Weed Control Ltd: EAT 29 Jan 2008

Damages for breach of contract of employment
The Tribunal awarded damages against an employee for what the employer alleged was a breach of the duty of trust and confidence. The Tribunal has no jurisdiction to award compensation for breaches of the ‘obligation of confidence’. The Claimant appealed alleging that this exclusion applied to claims for breach of the duty of trust and confidence, the two being synonymous. The EAT disagreed; although the obligation of confidence could properly be considered an aspect of the portmanteau term of trust and confidence, the converse was not the case. Many breaches of the duty of trust and confidence, including the breach of duty which arose in this case, could not properly be said to amount to a breach of the obligation of confidence. Accordingly, the Tribunal had jurisdiction and the appeal failed. The Tribunal found that the employers had unlawfully deducted from wages in failing to pay the basic salary following a disciplinary suspension. The EAT rejected the employer’s cross appeal to the effect that the Tribunal had misconstrued the terms of the contract.

Citations:

[2008] UKEAT 0492 – 07 – 2901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.264283

Transco Plc v O’Brien: CA 7 Mar 2002

The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before appearing to extend the terms of the implied duty of trust and confidence between employer and employee.
Pill LJ said: ‘I do not find it necessary or appropriate to consider the effect of the use of that expression which, in my judgment, and for the reasons I have given does not affect the outcome of this appeal. Plainly there are dangers in using terminology which may extend, or may appear to extend, the scope of the implied term of trust and confidence, as explained in the Mahmud case [1977] ICR 606 and the cases cited there. Employment tribunals should apply the tests stated in those cases and not use language which may detract from the correct test or suggest that a different test has been applied.’

Judges:

Pill LJ, Longmore LJ, Sir Martin Nourse

Citations:

[2002] EWCA Civ 379, [2002] ICR 721, [2002] Emp LR 787, [2002] IRLR 444

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd 1991
A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .

Cited by:

Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 October 2022; Ref: scu.216993

Jagex Ltd v McCambridge: EAT 11 Sep 2019

Unfair Dismissal – Contributory Fault – Polkey Deduction
CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Claimant was summarily dismissed after finding a document that had been left on the communal printer which contained the salary of a senior employee and telling a few colleagues about it. Although the Claimant was not responsible for any wider dissemination of the information, it was embarrassing for the Respondent when the level of the executive’s pay became more generally known in the office.
The Claimant succeeded in his claims of unfair and wrongful dismissal. No deduction for either contributory fault or a Polkey reduction was made and the matter was adjourned for a remedy hearing. The Respondent appealed the wrongful dismissal finding and the Tribunal’s refusal to make a reduction in respect of both Polkey and contributory fault.
Held: There was no error in the Tribunal’s approach to the construction of the contract and its finding that the Claimant’s behaviour did not constitute gross misconduct. There was no express term of the contract that salary information was confidential, and nor could it be implied into the contract. In any event, even if it had been, the Tribunal was entitled to find that the Claimant had not breached clause 14 concerning confidential information.
Nor had the Tribunal either misdirected itself or failed to follow its direction on the correct approach to Polkey. The Tribunal found the decision to be substantively, as well as procedurally, unfair. The tenor of the Reasons when read overall is that no reasonable employer would, or could fairly, have dismissed the Claimant for what he did. In a case such as this there is no need for a Tribunal to embark on a detailed discussion of Software 2000 or the line of authorities such as King v Eaton (No.2) [1996] IRLR 199 and Scope v Thornett [2007] IRLR 155. This was not a redundancy selection exercise, but a substantively flawed decision where the Tribunal found that the Respondent had wrongly sought to make an example of the Claimant to cover their own discomfiture and had been exceptionally heavy handed. It is inherent in its decision that fair procedures would not have made the dismissal fair and the Tribunal has sufficiently answered the questions posed in the approach recommended in paragraph 54 of Software 2000.
However the Tribunal had erred in considering a contributory fault reduction could only be made if the Claimant had committed an act of gross misconduct, which was too high a threshold. The correct test is to consider if the conduct was culpable, blameworthy, foolish or similar which includes conduct that falls short of gross misconduct and need not necessarily amount to a breach of contract Nelson v British Broadcasting Corporation (No. 2) [1980] ICR 110.
The issue of contributory fault is remitted back to the same Tribunal (applying the factors in Sinclair Roche and Temperley and Others v Heard and Anor [2004] IRLR 763, to be determined at the forthcoming remedy hearing.

Citations:

[2019] UKEAT 0041 – 19 – 1109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646846

Jakkhu v Network Rail Infrastructure Ltd: EAT 2 Aug 2019

DISABILITY DISCRIMINATION – Direct disability discrimination
DISABILITY DISCRIMINATION – Section 15
VICTIMISATION DISCRIMINATION

Disability discrimination – direct discrimination (section 13 Equality Act 2010 ) – discrimination because of something arising in consequences of disability (section 15 Equality Act 2010 ) – victimisation (section 27 Equality Act 2010 )
The Employment Tribunal (‘ET’) had rejected the Claimant’s various complaints of disability discrimination and victimisation. He appealed against its decision in respect of three issues: (1) his dismissal on 24 September 2014; (2) the failure to offer him a permanent role in February/March 2015; and (3) the Respondent’s failure to properly investigate his grievance of 20 April 2015.
Held : allowing the appeal in part

In rejecting the Claimant’s claims in respect of his dismissal of 24 September 2014, the ET had found that the dismissal had ‘vanished’ by reason of the Claimant’s subsequent reinstatement. By adopting this approach, however, the ET had failed to consider whether the act of dismissal (which was in breach of an agreement the Respondent had reached with the relevant trade unions) had been a detriment; this was not the same question as determining whether or not a subsequent reinstatement had extinguished the dismissal. Although the ET had then gone on to consider whether ‘the reason why’ the Claimant had been dismissed, it had focused on the background context to the original giving of notice (the redundancy situation) rather than on the actual question in issue – why the Respondent had allowed the dismissal to take effect notwithstanding its agreement with the trade unions. To the extent the ET engaged with the question why the Respondent had not sought to retract the notice of dismissal any earlier, (i) there was no indication that it had properly applied the burden of proof (section 136 Equality Act 2010), (ii) it had apparently assumed an explanation for the Respondent (failure of communication/ineptitude) without any indication of the evidential basis for this finding, and (iii) there nothing to suggest the ET had considered whether the Claimant’s absence (the ‘something’ arising from his disability) might have been the reason for the Respondent’s error. The Claimant’s appeal would be allowed on this issue, which would be remitted back to the same ET for reconsideration.
As for the Claimant’s complaint about the Respondent’s failure to offer him a permanent role, it was necessary to bear in mind the very general case that was before the ET; in particular, the Claimant had not specifically stated that he was relying on the vacancies identified by Mr Lindsell on or about February/March 2015. The evidence before the ET in relation to these positions included a meeting note with the Claimant where he had suggested that the jobs were only a match for his former role ‘on paper’. In the circumstances, the ET was entitled to find that the reason why these positions were not offered to the Claimant was because he had not put himself forward for them.
In relation to the Claimant’s grievance of 20 April 2015, the ET had found the Respondent’s response had been inadequate: the experienced, senior HR professional dealing with the Claimant’s complaints had failed to appreciate that this should have been treated as a grievance rather than merely a complaint about his non-selection for a higher-grade position. Having heard from the HR manager in question, however, the ET was satisfied that this was a genuine error and that she would have adopted the same approach in respect of any employee raising a complaint in this way regardless of disability, absence due to disability and/or any protected act. That was a conclusion open to the ET on the evidence and it was not open to the EAT to go behind that finding.

Citations:

[2019] UKEAT 0276 – 18 – 0208

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646845

Paul v Virgin Care Ltd: EAT 12 Sep 2019

Practice and Procedure – Withdrawal
During a Preliminary Hearing to consider whether any of the claims should be struck out as lacking reasonable prospects of success or made the subject of deposit orders, the Claimant, who was unrepresented, indicated she was withdrawing her claim for automatically unfair dismissal pursuant to regulation 7(1)(b) Transfer of Undertakings (Protection of Employment) Regulations 2006. The Employment Tribunal dismissed this claim upon her withdrawal and made deposit orders in relation to her other claims.
The Claimant appealed contending that the Tribunal had erred in law in dismissing her automatically unfair dismissal claim as the Employment Judge had failed to ensure that she had made an informed choice when she withdrew this claim and/or had exerted unfair pressure on her to do so.
The appeal was dismissed. Having regard to all the circumstances, the withdrawal of the automatically unfair dismissal claim was clear, unambiguous, and unequivocal and there was nothing to reasonably suggest otherwise to the Employment Judge. In so far as he questioned the Claimant as to why she said her dismissal was linked to the TUPE transfer, the Employment Judge acted properly and understandably, given the strike out application he had to determine and with a view to understanding the way she put her claim. The questions he asked were fair and clear, and the Claimant was given an appropriate opportunity to consider whether or not to withdraw this part of her claim, in circumstances where it was clear what the implications of that were for its future pursuit. There was no unfair pressure put on her to do so.

Citations:

[2019] UKEAT 0104 – 19 – 1209

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646847

Watson v Hemingway Design Ltd and Others: EAT 16 Dec 2019

Practice and Procedure – Postponement or Stay – Transfer/Hearing Together
An employment judge had erred in law in deciding that he lacked jurisdiction to determine a claim under the Third Parties (Rights Against Insurers) Act 2010 (the 2010 Act) arising between the claimant and the insurer of the insolvent first respondent. The employment tribunal was ‘the court’ within the meaning of section 2(6) of the 2010 Act and therefore had power to make declarations under the 2010 Act as to the liability of the insurer as well as of the insured.
The employment judge’s decision to stay the claimant’s claim under the 2010 Act against the third respondent insurer was therefore set aside and the stay lifted.
The better view, expressed obiter as the point had not yet arisen, was that the arbitration clause in the contract of insurance between the insolvent first respondent and its insurer was rendered void by the anti-avoidance provisions in section 203 of the Employment Rights Act 1996 and section 144 of the Equality Act 2010, since the arbitration clause would, if given effect, limit the operation of the provisions of those Acts.

Citations:

[2019] UKEAT 0007 – 19 – 1612

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646870

South Western Ambulance Service NHS Foundation Trust v King: EAT 31 Oct 2019

Extension of Time
The Claimant lodged a grievance against her managers complaining of, amongst other matters, acts of discrimination. Her grievance was the subject of a report produced by an external consultant. The report dismissed the grievance. The Claimant’s appeal was rejected. Dissatisfied with the grievance outcome and the Trust’s failure to take action against one manager in particular, she resigned, claiming she was constructively dismissed. Her effective date of termination was 5 October 2017. On 11 December 2017, the Claimant issued proceedings claiming unfair constructive dismissal and victimisation because of doing a protected act, namely lodging a grievance. The Claimant relied upon a series of detriments said to be acts of victimisation. These commenced with the report and included the dismissal of her grievance and grievance appeal. Only the rejection of her grievance appeal fell within the three-month period (plus the conciliation period) prior to the date of issuing her claim. The Tribunal rejected the claim of unfair constructive dismissal. In relation to victimisation, it found that the report itself did amount to a detriment. However, none of the other matters relied upon, including the rejection of her appeal against the grievance decision, were found to amount to a detriment. The Tribunal concluded, however, that there was a course of conduct commencing with the report and which continued to the rejection of the Claimant’s appeal. On that basis, the Claimant’s claim was held to be in time. The Respondent appealed.
Held , allowing the appeal, that the Tribunal had erred in concluding that there was conduct extending over a period within the meaning of s.123 of the Equality Act 2010 , in circumstances where several of the acts said to be part of that course of conduct were not upheld as acts of victimisation. The EAT would substitute a decision that there was no conduct extending over a period. The case would be remitted to the Tribunal for it to determine whether time should be extended on just and equitable grounds.

Citations:

[2019] UKEAT 0056 – 19 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646857

Digital Communication Systems Ltd v Scully: EAT 5 Dec 2019

Jurisdictional Points – Worker, Employee or Neither – The issue before the Employment Judge (‘EJ’) was whether the Claimant was an employee, a ‘limb (b)’ worker or neither. He rejected the claim that the Claimant was an employee inter alia on the basis that there was no obligation to provide personal service because there was a right of substitution and then went on to decide that he was a ‘limb (b)’ worker. Those two propositions could not stand together and the appeal against the finding that he was a ‘limb (b)’ worker had to be allowed. The matter was remitted to a new EJ to decide the ‘limb (b)’ worker issue afresh in the light of the original findings of primary fact.

Citations:

[2019] UKEAT 0182 – 19 – 0512

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646867

Caterham School Ltd v Rose: EAT 22 Aug 2019

Sex Discrimination – Continuing Act
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant in the Employment Tribunal (now the Respondent to this appeal) complained of alleged discriminatory conduct on the part of the Respondent in the Employment Tribunal, during the course of her employment, on various occasions, and in various ways, during 2017. She also complained that this conduct amounted to a cumulative breach of the implied duty of trust and confidence, and led to her resigning on 24 August 2017, in circumstances amounting to a constructive unfair and discriminatory dismissal.
At a Preliminary Hearing the Tribunal correctly found that time began to run in respect of the unfair and discriminatory dismissal claims on 24 August 2017, and that they were presented on a date outside of the primary time limit, as adjusted for the impact of ACAS Early Conciliation. It was not persuaded that it was not reasonably practicable to present the unfair constructive dismissal claim in time, but it did find that it was just and equitable to extend time in respect of the discriminatory constructive dismissal claim. By the time of the Full Hearing in the EAT there was no live challenge to either of those decisions.
The Tribunal had also decided that all of the alleged pre-resignation discriminatory conduct amounted, taken together with the alleged discriminatory constructive dismissal, to conduct extending over a period, so that time in respect of all such complaints also ran from 24 August 2017. It had not merely found that the Claimant had a prima facie case to that effect; on a correct reading of its decision, it had decided the point. Then, using that start date, the Tribunal also found that it was just and equitable to extend time in relation to those complaints.
However, the Tribunal erred in making a definitive finding that there was conduct extending over a period, when it had considered no evidence, and made no findings of fact, in relation to that alleged pre-resignation conduct, or which, if any, of the matters complained of, amounted to discriminatory treatment as alleged. Hence it erred in its decision that it was just and equitable to extend time in respect of the complaints of alleged pre-resignation conduct. That was because that decision was based on the premise that this formed part of conduct extending over a period, so that time only began to run in respect of them when the Claimant resigned.
Whether there was any pre-resignation discriminatory conduct; whether, if so, any such conduct formed part of conduct extending over a period, together with any other discriminatory conduct found; hence, when time began to run in respect of any pre-resignation discriminatory conduct found; and whether it was just and equitable to extend time in relation to any conduct so found, will all be for the appreciation of the Tribunal at the Full Merits Hearing.
The Claimant was permitted to enter a late Cross-Appeal, which succeeded, as the Tribunal had proceeded on the erroneous footing that there was no complaint of harassment relating to alleged conduct in 2017 (as opposed to complaints of direct discrimination). On a correct construction of the claim form, there was such a complaint in relation to one alleged incident on 17 January 2017 (as an alternative to direct discrimination), which had not been withdrawn.

Citations:

[2019] UKEAT 0149 – 19 – 1406

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 October 2022; Ref: scu.646844

Barnard v Hampshire Fire and Rescue Authority: EAT 19 Dec 2019

Equal Pay – Jurisdictional Points
The Claimant had been continuously employed by the Respondent from 2009 until June 2017, progressing by promotion from an administrative grade into technical roles and then into a managerial position. Upon each promotion, the Claimant was issued with a new contract save that when she first moved into a managerial role as Office Manager, in June 2014, she remained working under her existing contract. Following the termination of her employment, the Claimant submitted a claim to the Employment Tribunal (ET), which included a claim for equal pay going back to her first promotion. The Respondent objected that the claim was out of time for all but the last position held by the Claimant, the stable working relationship between the parties having been broken by each of the Claimant’s promotions. This question was initially considered by an ET, which agreed with the Respondent, save in respect of the Claimant’s final promotion. The Claimant successfully appealed against that decision and the issue was remitted to a different ET for determination. Although the ET found that there had been a continuing stable working relationship for the earlier promotions, it concluded that this had been broken when the Claimant moved into a managerial role; consequently, the Claimant’s equal pay claim was limited to her employment in managerial positions. The Claimant appealed.

Held: allowing the appeal:
The ET had failed to adopt a broad, non-technical test, looking at the character of the work and the employment relationship in practical terms (North Cumbria University Hospitals NHS Trust v Fox and Ors [2010] IRLR 804 CA applied); it had elevated the change in job content on the Claimant’s promotion into a managerial position into a determining factor when that had to be seen in context – the Claimant’s promotion was a ‘natural progression’ and was part of an incremental progression into higher grades (initially on a temporary basis, under her existing contract) that was entirely indicative of the continued stable working relationship between the parties. In the alternative, the ET’s conclusion was perverse: none of the factors it had taken into account suggested other than that the stable working relationship had continued. There being only one answer to this question, the ET’s decision would be set aside and a finding substituted that there was no end in the stable working relationship on the Claimant’s move to the position of Office Manager in June 2014.

Citations:

[2019] UKEAT 0145 – 19 – 1912

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 October 2022; Ref: scu.646866

Mahjoub v Initial Cleaning Services Ltd: CA 19 Mar 2002

Citations:

[2002] EWCA Civ 422

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – El Mahjoub v Initial Cleaning Services Ltd EAT 11-Nov-2001
EAT Procedural Issues – Employment Tribunal . .

Cited by:

Appealed to – El Mahjoub v Initial Cleaning Services Ltd EAT 11-Nov-2001
EAT Procedural Issues – Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 October 2022; Ref: scu.216954

London Borough of Camden v Pegg and Others: EAT 13 Apr 2012

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Agency relationships
C was supplied by R2 (an employment agency) through R3 (another employment agency) to R1 (a local authority) for whom she worked as a Senior School Travel Planning Officer, fully integrated in R1’s organisation. C’s contract with R2 was described as a contract for services; it did not require her to take any assignment but placed obligations on her to work once she had accepted an assignment. The Tribunal found that R2 was C’s employer within the extended definition in section 68(1) of the Disability Discrimination Act 1995, that C was a contract worker and R1 her principal within the meaning of section 4B(9) of the 1995 Act.
It was argued that because C was not under an obligation to take the assignment with R1 she was not under an obligation to do work personally and not an employee within the extended definition in section 68(1). Reliance was placed on Mingeley v Pinnock t/a Amber Cars [2004] ICR 727.
Held: The Tribunal was correct. Mingeley distinguished. It was sufficient that C’s obligation to R2 to work personally arose when she accepted the assignment with R1.

Judges:

Richardson J

Citations:

[2012] UKEAT 0590 – 11 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454091

Barchester Healthcare Ltd v Tayeh: EAT 11 Apr 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – nurse dismissed for (1) deliberately making an entry on a fluid chart at 03.00 recording that a feed was given at 06.00 and (2) on a separate occasion failing to observe an elderly and vulnerable patient who had fallen and was awaiting medical examination over a period of nearly 3 hours. Tribunal, by a majority, held dismissal to be unfair. Held – Tribunal’s decision vitiated by one conclusion which was insupportable and others which involved substitution or failure to apply reasonable responses test. Finding of fair dismissal substituted.

Judges:

Richardson J

Citations:

[2012] UKEAT 0281 – 11 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454089

Doyle v North West London Hospitals NHS Trust: EAT 4 Apr 2012

EAT PRACTICE AND PROCEDURE – Costs
An appeal against a costs order under rule 41(1)(c) ETR that the Claimant pay the whole costs of the proceedings to be assessed.
Subject to ‘ability to pay’ point, no error of law in Tribunal’s decision to order the whole of the costs based on Claimant’s conduct and effects thereof.
On ‘ability to pay’, Tribunal erred in law in failing itself to raise the question of means before making such an order (which was going to amount to andpound;100K) against a Claimant even though she was legally represented.

Judges:

Shanks

Citations:

[2012] UKEAT 0271 – 11 – 0404

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 13 October 2022; Ref: scu.454090

Sunderland City Council v Brennan and Others: EAT 2 May 2012

EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability (Contribution) Act 1978 between persons jointly or concurrently liable for damage caused by an act of unlawful discrimination. Nor in any event does the 1978 Act create such a right as between such persons.
(2) The employment tribunal had been entitled to order the Claimants to disclose the settlement agreement between them and one set of respondents as being relevant to the issue between them and the remaining respondents, inasmuch as any sums recoverable under the settlement from the former would fall to be taken into account if they were to succeed and were entitled to compensation against the latter.

Judges:

Underhill J P

Citations:

[2012] UKEAT 0286 – 11 – 0205

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act 1978, Equal Pay Act 1970, Sex Discrimination Act 1975 6, Employment Tribunal Rules of Procedure, Law Reform (Married Women and Tortfeasors) Act 1935 6(1)( c), Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3

Jurisdiction:

England and Wales

Citing:

Cited – Bury Metropolitan Borough Council v Hamilton and Others EAT 28-Jan-2011
bury_hamiltonEAT11
EAT EQUAL PAY – Material factor defence and justification
BONUS CLAIMS (both appeals)
Equal pay claims by female local authority employees to the benefit of bonus paid to male colleagues under . .
Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Cited – Bullimore v Pothecary Witham Weld etc EAT 21-Sep-2010
EAT SEX DISCRIMINATION – COMPENSATION
H, a partner in a firm of solicitors, PWW, by whose predecessor C had previously been employed gave an unfavourable reference to another firm, S, with whom she was . .
Cited – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Cited – Charles Scott and Partners Consulting Engineers Ltd v Hamilton EAT 9-Aug-2011
EAT Redundancy : Fairness – Redundancy dismissal. Failure to consult but meetings with employee subsequent to decision to dismiss. Decision on appeal taken by same persons as had decided to dismiss, namely all . .
See Also – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
See Also – Council of The City of Sunderland v Brennan and Others CA 3-Apr-2012
Equal pay claim – Whether difference in pay due to material factor other than sex . .

Cited by:

See Also – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 13 October 2022; Ref: scu.454097

Gabriel v Peninsula Business Services Ltd and Another: EAT 23 Feb 2012

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Whether applicable
CONTRACT OF EMPLOYMENT
TRANSFER OF UNDERTAKINGS – Transfer
Critical issue – whether Employment Judge entitled to find that Claimant’s employment transferred from First Respondent to Second Respondent without her knowledge or consent. He was not. TUPE was not invoked by Respondents and the common law rule expressed in Nokes v Doncaster applied. Consequently Claimant entitled to bring claims against both Respondents.

Judges:

Clark J

Citations:

[2012] UKEAT 190 – 11 – 2302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454076

BAA Ltd v Davies: EAT 21 Mar 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal. Remit to same Tribunal for a re-hearing where Employment Tribunal had failed to have regard to whole facts and circumstances and to the relevant law, particularly the guidance in Sainsbury’s v Hitt.

Judges:

Ladt Smith

Citations:

[2012] UKEAT 0047 – 11 – 2103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454082

Osonnaya v South West Essex Primary Care Trust: EAT 20 Mar 2012

EAT UNFAIR DISMISSAL
A pre-hearing review, initially listed for half a day, had still not been concluded 133 hearing days later. The Claimant was not at fault in any way for this. The principal reason was her serious illness (sarcoidosis), and its consequent effects on the timetable. At a time when the Claimant’s case had closed and a central witness for the Respondent was under cross-examination, with two other witnesses still to be called, the Judge of his own motion decided to consider whether he should strike out the claim on the basis that it was no longer possible to have a fair hearing (under rule 18(7)(f) of the Tribunal Rules). He saw no end to the case, and identified prejudice in the continuing cost to the Respondent and the possible absence of a witness in Tanzania.
It was HELD that this approach was in error. To say that ‘no end was in sight’ was an overstatement given the stage the case had reached; he could have but did not ask for more detailed medical material; did not sufficiently consider the use of case management powers to ensure expeditious hearing; did not appreciate the impact the determination of the pre-hearing review might have on the claim as a whole, and the basis for his decision was insufficient.

Judges:

Langstaff J P

Citations:

[2012] UKEAT 0629 – 11 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454084

Ajayi and Another v Aitch Care Homes (London) Ltd: EAT 3 Feb 2012

EAT UNFAIR DISMISSAL – Automatically unfair reasons
WORKING TIME REGULATIONS
An Employment Tribunal was right to hold that the ‘refusal’ or ‘proposed refusal’ of an employee to accept a contravention (or proposed contravention) of the Working Time Regulations by his employer had to be communicated in advance to the employer, and that accordingly s.101A of ERA 1996 did not operate to render unfair the dismissal of two employees found sleeping on duty, notwithstanding their subsequent assertion that they were exercising their rights to a rest break at the time, and refusing by conduct to accept their employer’s failure to provide for any break.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0464 – 11 – 0302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454073

London Metropolitan University v Storfer: EAT 13 Feb 2012

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Contributory fault
Polkey deduction
The Employment Tribunal did not err in finding the Respondent unfairly dismissed the Claimant for misconduct. The EAT would not interfere with its findings: Fuller v London Borough of Brent [2011] IRLR 414, Bowater v Northwest London Hospitals NHS Trust [2001] IRLR 331, Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, per Elias LJ, Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, per Mummery LJ, London Ambulance Service NHS Trust v Small [2009] IRLR 563, per Mummery LJ, Taylor v OCS and Orr v Milton Keynes applied.
The Employment Tribunal erred in making a decision on contribution and Polkey without giving counsel an opportunity to call evidence and make submissions: Market Force v Hunt applied. Those two matters remitted to the same Tribunal for reconsideration at its pending remedy hearing.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0073 – 11 – 1302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454079

C v M Ltd: EAT 22 Feb 2012

EAT PRACTICE AND PROCEDURE
Striking-out/dismissal
Bias, misconduct and procedural irregularity
Costs
Claimant appeal against strike-out and costs orders. Bias ground failed on the facts. Strike out justified on ground that claim was misconceived. Further, Respondent permitted to raise a new point, that it was entitled to absolute immunity from suit; the claim arose out of other judicial proceedings. Costs order properly made below. Limited costs order made in the appeal.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0549 – 10 – 2202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454074

Godfrey Morgan Solicitors Ltd v Marzon and Another: EAT 15 Feb 2012

EAT PRACTICE AND PROCEDURE
Costs
Appearance/response
The first appeal related to a claim by Miss Marzan that she had not been paid a month’s wages due in respect of her notice period. It was initially brought against ‘Godfrey Morgan Solicitors t/a GMS Law’. There was a solicitors’ firm, Godfrey Morgan Solicitors (of which Godfrey Morgan was a partner), and a company, Godfrey Morgan Limited t/a GMS Law (of which he was a director). The firm responded, to claim that the Employment Tribunal had no jurisdiction because the claim had not been brought against the company (the word ‘Limited’ was missing), and putting her to proof that she had ever been employed by it. This was supported by a witness statement from Godfrey Morgan which did not state that he knew that the Claimant had been an employee of the company for over a year (as he did), nor did it disclose that in the company’s possession was a copy of her contract of employment. In consequence, the day allocated to the hearing was entirely wasted save as to ordering that the company be joined as second Respondent and making consequential directions. The ET made a time preparation costs order on the basis that the conduct in defence of the proceedings was unreasonable. The appeal against this order was dismissed.
The second to fifth appeals rested on an order (headed ‘unless order’ but otherwise not indicating what consequence would follow from non-compliance) that Godfrey Morgan (who had not been present at the first hearing, saying he was abroad) should produce an airline ticket which verified this. Since (he said) he had lost or disposed of the ticket, he could not comply, and the response was first struck out (appeal 3), then continued unopposed such that Miss Marzan succeeded (appeal 4), and then further time preparation costs were ordered against the Appellant (appeal 5). Since there was no proper basis in reason, relevance or justice for ordering disclosure let alone copying of the ticket, and it was not the function of an ET to act in discipline of a solicitor, let alone the hopelessly unspecific wording of the unless order and the evidence the document was not in possession of Mr Morgan, these appeals (which all stood together) were allowed. The claim is remitted for hearing before a new Tribunal.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0466 – 11 – 1502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454078

Charles v Tesco Stores Ltd: EAT 19 Jan 2012

EAT RACE DISCRIMINATION – Continuing act
PRACTICE AND PROCEDURE – Preliminary issues
A self-represented party complained that an Employment Judge had not addressed his claim that within 3 months prior to his lodging proceedings he had agreed compensation (or had an offer of compensation) which was revoked/withdrawn/broken by the employer, and that this was an act of discrimination against him. The EJ should thus not have ruled his earlier complaints out of time, since this was the last in a series of linked events.
Since none of the hearing had (it appeared) concerned the allegation that the Respondent had welched on or had withdrawn an agreement, the EJ was held entitled to hold as she did.

Judges:

Langstaf P J

Citations:

[2012] UKEAT 0386 – 11 – 1901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454071

Rogers v Dorothy Barley School: EAT 14 Mar 2012

EAT UNLAWFUL DEDUCTION FROM WAGES
JURISDICTIONAL POINTS
School caretaker living in caretaker’s house presented (by mistake or administrative error) with water rates bill normally paid by the school. Complaint to Employment Tribunal service.
Employment Tribunal Judge says no jurisdiction because (1) if it is a ‘deduction of pay’ complaint, no pay actually deducted (school paid the bill) and (2) if it is a ‘breach of contract’ claim, he is still employed by the school (see arts 3 and 4 of Employment Tribunals (Extension of Jurisdiction) Order 1994). Appellant in person simply asserting ‘there was a breach of contract’.
Appeal dismissed. ETJ clearly right that the ET service had no jurisdiction and the appeal was misconceived.
Application for costs refused. No warning by Respondent that it would apply for costs. No schedule of costs supplied in advance of hearing. Extent to which school’s conduct (in directing bill to him) had brought the case on themselves.

Judges:

Luba QC

Citations:

[2012] UKEAT 0013 – 12 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454087

Richard and Lesley Callow (T/A Callow Building Services) v Anthony: EAT 22 Mar 2012

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Compensation
Employee who submitted timesheets which overstated the hours he had worked was dismissed for misconduct. At internal appeal, the officer hearing it believed that he had done so by mistake, and whilst suffering from stress. The Employment Tribunal held that dismissal for overstating time to the limited extent he did, whilst accepting those reasons, was outside the band of reasonable responses. An appeal that the ET had substituted its own decision in so concluding was dismissed. However, the ET held that there should be a 20 per cent reduction for ‘contribution’ when what it had in mind was a reduction pursuant to the Employment Act 2002 for failing to attend a disciplinary hearing, and did not consider whether the ‘mistake’ in compiling timesheets was blameworthy and therefore justified an assessment of contribution. Held to be in error in failing to do this: case remitted, to a different Tribunal (by agreement, and because the Employment Judge was said to have demonstrated a closed mind by his approach to contribution by rejecting the issue out of hand at the hearing, without reasons for doing so).

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0136 – 11 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454085

Redhead v London Borough of Hounslow: EAT 9 Feb 2012

EAT PRACTICE AND PROCEDURE
Application/claim
Amendment
An Employment Tribunal Judge (ETJ) decided that: (1) an ET1 did NOT embrace claims of direct or indirect race discrimination and (2) the claim form ought not to be enlarged by amendment to introduce such claims.
Decision on (1) upheld. The ET1 raised only a claim of victimisation for making a protected disclosure.
Decision on (2) set aside and issue remitted to new ETJ. Both parties were agreed that ETJ had failed to apply the ‘balance of hardship’ approach required by Selkent v Moore.

Judges:

Luba QC

Citations:

[2012] UKEAT 0409 – 11 – 0902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454080

Mitie Cleanng and Environmental Services Ltd v Challinor: EAT 23 Mar 2012

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal. Circumstances where open to Employment Judge to revoke strike out despite serious failure to progress claim. Observations on nature and extent of solicitor’s failings.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0056 – 11 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454083

Warby v Wunda Group Plc: EAT 27 Jan 2012

EAT HARASSMENT
SEX DISCRIMINATION
Direct
Pregnancy and discrimination
In the course of a heated discussion between the Claimant and her manager about pay, each accused the other of lying. To emphasise his contention in the context of this argument, the manager accused the Claimant of having lied about her pregnancy and miscarriage. The Employment Tribunal found this created an environment of a hostile kind such as to constitute harassment if it found that the accusation related to, or was on the grounds of, the Claimant’s sex. It declined to do so.
Held: the ET was entitled so to hold. Context was of the greatest importance, and the ET had been entitled to regard the purpose of speaking the words to be related to proof of lying, and neither inherently nor otherwise spoken on the ground of sex.

Judges:

Langstaff P

Citations:

[2012] UKEAT 0434 – 11 – 2701

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Henderson v The General Municipal and Boilermakers Union CA 11-Oct-2016
The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 October 2022; Ref: scu.454072

Williams v Real Care Agency Ltd: EAT 13 Mar 2012

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
A claim was struck out in mid hearing, before the Claimant’s cross-examination had concluded, and without affording her the opportunity to call further witnesses, on the basis it had no reasonable prospect of success. The claim was one in which the Claimant had been dismissed for falsely over-stating the hours she had worked. She admitted this, but claimed that the employer insisted upon this practice, since it charged clients attended by her as a carer upon the basis of the hours she claimed, and thus benefitted itself, and that the practice was widespread and condoned throughout by her employer. The evidence yet to be called would have supported this.
It was HELD that it was inappropriate for a Tribunal to strike out a claim mid-hearing upon the basis that it found the evidence of the Claimant lacked credibility, particularly since the evidence relevant in the assessment of credibility (on the central issue) was that of the Respondent, which credibility could only finally be assessed in the light of all the probabilities arising from the whole of the evidence yet to be called. Observations were made discouraging Tribunals from acceding to applications to strike out a claim as having no reasonable prospect of success which were made during the course of a full hearing.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0051 – 11 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Applied – Timbo v Greenwich Council for Racial Equality EAT 2-Oct-2012
EAT SEX DISCRIMINATION
On the third day of the hearing, at the close of the Claimant’s case, the Respondent applied to strike out the claim. The Tribunal reserved judgment and acceded to the application, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 October 2022; Ref: scu.454088

Vanderpuye v Telefonica O2 UK: EAT 20 Feb 2012

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The EAT would not interfere with the decision to strike out the Claimant’s disability claim, and the refusal twice to review that decision, when the Claimant failed to comply with an unless order, made after a long history of non-compliance. Abegaze principles correctly applied.

Judges:

McMuklen QC

Citations:

[2012] UKEAT 0257 – 11 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454081

Roberts v Aldi Stores Ltd: EAT 28 Mar 2012

EAT PRACTICE AND PROCEDURE
Admissibility of evidence
Bias, misconduct and procedural irregularity
Various complaints not determined by Employment Tribunal. Those remaining remitted for hearing, subject to limitation issue. Admissibility of without prejudice material also remitted for further consideration.

Judges:

Clark J

Citations:

[2012] UKEAT 0224 – 11 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454086

Godfrey Morgan Solicitors Ltd v Marzan and Others: EAT 15 Feb 2012

EAT PRACTICE AND PROCEDURE
Costs
Appearance/response
The first appeal related to a claim by Miss Marzan that she had not been paid a month’s wages due in respect of her notice period. It was initially brought against ‘Godfrey Morgan Solicitors t/a GMS Law’. There was a solicitors’ firm, Godfrey Morgan Solicitors (of which Godfrey Morgan was a partner), and a company, Godfrey Morgan Limited t/a GMS Law (of which he was a director). The firm responded, to claim that the Employment Tribunal had no jurisdiction because the claim had not been brought against the company (the word ‘Limited’ was missing), and putting her to proof that she had ever been employed by it. This was supported by a witness statement from Godfrey Morgan which did not state that he knew that the Claimant had been an employee of the company for over a year (as he did), nor did it disclose that in the company’s possession was a copy of her contract of employment. In consequence, the day allocated to the hearing was entirely wasted save as to ordering that the company be joined as second Respondent and making consequential directions. The ET made a time preparation costs order on the basis that the conduct in defence of the proceedings was unreasonable. The appeal against this order was dismissed.
The second to fifth appeals rested on an order (headed ‘unless order’ but otherwise not indicating what consequence would follow from non-compliance) that Godfrey Morgan (who had not been present at the first hearing, saying he was abroad) should produce an airline ticket which verified this. Since (he said) he had lost or disposed of the ticket, he could not comply, and the response was first struck out (appeal 3), then continued unopposed such that Miss Marzan succeeded (appeal 4), and then further time preparation costs were ordered against the Appellant (appeal 5). Since there was no proper basis in reason, relevance or justice for ordering disclosure let alone copying of the ticket, and it was not the function of an ET to act in discipline of a solicitor, let alone the hopelessly unspecific wording of the unless order and the evidence the document was not in possession of Mr Morgan, these appeals (which all stood together) were allowed. The claim is remitted for hearing before a new Tribunal.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0465 – 11 – 1502

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 13 October 2022; Ref: scu.454077

Royal Mencap Society v Tomlinson-Blake: SC 19 Mar 2021

Whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity.

Judges:

Lord Kerr, Lord Wilson, Lord Carnwath, Lady Arden, Lord Kitchin

Citations:

[2021] UKSC 8

Links:

Bailii, Bailii Summary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Citing:

Appeal from (CA) – Royal Mencap Society v Tomlinson-Blake CA 13-Jul-2018
What hours does a sleep in care worker have to be paid for.
Held: Sleepers-in are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 15 (1)/32, rather than actually working, within . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 October 2022; Ref: scu.660052

Hancock v Ter-Berg and Another: EAT 25 Jul 2019

Victimisation Discrimination – Protected Disclosure – Interim Relief
UNFAIR DISMISSAL
The Claimant applied for interim relief pursuant to s.128 of the Employment Rights Act 1996 following the termination of his contract allegedly because he had made protected disclosures. The Respondent contended that there was no entitlement to make such an application as the Claimant was not an ’employee’ within the meaning of that section. The Respondent’s application for a postponement of the interim relief application pending a determination of the employee issue was refused. At the interim relief hearing, the Tribunal considered that the ‘likely to succeed’ test under s.129 of the 1996 Act applied not just to the reason for dismissal but also to the contested issue of employee status. It determined that the Claimant had a ‘pretty good chance’ of success in showing that he was an employee and that he was dismissed for having made protected disclosures. The Respondent appealed on the grounds that the Tribunal erred in entertaining the application for interim relief before first concluding that the Claimant was indeed an employee.
Held (dismissing the appeal): On a proper construction of ss.128 and 129 of the 1996 Act, all elements of a complaint of unfair dismissal for a proscribed reason (including that it was because of protected disclosures) were to be determined at the interim relief hearing on the likely to succeed test. That included the question of employment status if that were put in issue by the employer. That construction was consistent with the intention of the interim relief regime, that being to provide a speedy remedy to preserve the status quo pending the full hearing. The Respondent’s contention that there should be a Preliminary Hearing to determine conclusively whether the Claimant was an employee before determining the application for interim relief would cause delay and would undermine the interim nature of the remedy under s.129.

Judges:

Choudhury J (President)

Citations:

[2019] UKEAT 0138 – 19 – 2507, [2020] WLR(D) 24

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 October 2022; Ref: scu.646843

Asda Stores Ltd v Brierley and Others: CA 31 Jan 2019

Judges:

Underhill, Peter Jackson LJJ, Lord Sales

Citations:

[2019] EWCA Civ 44, [2019] 2 CMLR 18, [2019] ICR 1118, [2019] 4 All ER 450, [2019] WLR(D) 56, [2019] IRLR 335

Links:

Bailii, WLRD

Statutes:

Equality Act 2010 79(4)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Asda Stores Ltd v Brierley and Others SC 26-Mar-2021
Whether employees in Asda’s retail operations are entitled to compare themselves with employees in the distribution centres so that they can rely on section 79(4)(c) of the Equality Act 2010 (‘2010 Act’) or, as regards the period covered by the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 October 2022; Ref: scu.633080

Royal Mencap Society v Tomlinson-Blake: CA 13 Jul 2018

What hours does a sleep in care worker have to be paid for.
Held: Sleepers-in are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 15 (1)/32, rather than actually working, within the meaning of regulation 3/30, and so fall within the terms of the sleep-in exception in regulation 15 (1A)/32 (2).

Judges:

Ryder SPT, Underhill, Singh LJJ

Citations:

[2018] EWCA Civ 1641, [2019] ICR 241, [2018] IRLR 932, [2018] WLR(D) 486

Links:

Bailii, WLRD

Statutes:

National Minimum Wage Act 1998, National Minimum Wage Regulations 1999, National Minimum Wage Regulations 2015

Jurisdiction:

England and Wales

Cited by:

Appeal from (CA) – Royal Mencap Society v Tomlinson-Blake SC 19-Mar-2021
Whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 October 2022; Ref: scu.619396

Animadu v Mastercare Service and Distribution Ltd: CA 26 Apr 2002

Citations:

[2002] EWCA Civ 755

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Animadu v Mastercare Service and Distribution EAT 21-Feb-2000
EAT Procedural Issues – Employment Tribunal. . .
See Also – Animadu v Mastercare Service and Distribution Ltd CA 4-Jul-2001
Request for leave to appeal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 October 2022; Ref: scu.217012

Daniel v Homerton Hospital Trust: EAT 14 Dec 1998

Citations:

[1998] UKEAT 569 – 98 – 1412

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Daniel v Homerton Hospital Trust EAT 18-May-1998
. .

Cited by:

Appeal from – Daniel v Homerton Hospital Trust CA 9-Jul-1999
The court considered an appeal against the tribunal’s exercise of a discretion. Gibson LJ said: ‘The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 October 2022; Ref: scu.206988

Darlington Memorial Hospital NHS Trust v Edwards and Vincent: EAT 29 Jul 1996

Appeal to us by Darlington Memorial Hospital NHS Trust against a decision which found that each of the two Respondents to the appeal, both senior employees of the Hospital, had been unfairly dismissed by unfair selection for redundancy.

Citations:

[1996] UKEAT 678 – 95 – 2907

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 October 2022; Ref: scu.208498

Airways Pension Scheme Trustee Ltd v Fielder and Another (3027): ChD 11 Nov 2019

Application by the corporate trustee (the ‘Trustee’) of the Airways Pension Scheme (the ‘Scheme’) for approval of its decision to enter into a settlement agreement with the second defendant

Judges:

Zacaroli J

Citations:

[2019] EWHC 3027 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Airways Pension Scheme Trustee Ltd v Fielder and Another (3032) ChD 11-Nov-2019
. .
See Also – Airways Pension Scheme Trustee Ltd v Fielder and Another ChD 15-Jan-2019
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 October 2022; Ref: scu.646156

Ajar-Tec Ltd v Stack: CA 26 Apr 2012

The issue in this case is whether Mr Stack is either an employee or a worker employed by the appellant company.

Judges:

Etherton, Elias LJJ, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 543

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At CA (1) – Ajar-Tec Ltd v Stack EAT 30-May-2014
EAT Jurisdictional Points : Worker, Employee or Neither – The Employment Judge was in error in finding the Claimant was employed under an express contract of employment as there was no consideration. He also . .
At CA (1) – Stack v Ajar-Tec Ltd CA 5-Feb-2015
The court was asked whether the Appellant Mr Stack was at the material time either an employee or a worker employed by the Respondent company. Mr Stack has lodged claims before the Employment Tribunal for constructive unfair dismissal and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 October 2022; Ref: scu.452999

Customer Systems Plc v Ranson: CA 29 Mar 2012

Leave to appeal granted.

Judges:

David LJ

Citations:

[2012] EWCA Civ 491

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
At QBD – Customer Systems Plc v Ranson and Others QBD 16-Dec-2011
. .

Cited by:

Leave to Appeal – Ranson v Customer Systems Plc CA 27-Jun-2012
Lewison LJ considered the contractual duty of fidelity within an employment contract:
‘It is not disputed that an employee has an obligation of fidelity towards his employer. If the obligation is not expressed, it will invariably be implied.
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 07 October 2022; Ref: scu.452962

BUQ v HRE: QBD 29 Mar 2012

The claimant had obtained an order restricting the defendant from the disclosure of information of a sexual nature concerning the Claimant and his wife (who is not a claimant). The defendant now sought the amendent of the order to allow disclosure in employment tribunal proceedings.

Judges:

Tugendhat J

Citations:

[2012] EWHC 774 (QB)

Links:

Bailii

Employment, Media

Updated: 07 October 2022; Ref: scu.452709

Ebbw Vale Steel Co v Tew: CA 1935

The court considered the damages to be awarded where an employee left without the proper notice: ‘The Judge should ascertain the workman’s probable output during the time of default, find its selling value, deduct the expenses which would have been incurred had the workman performed his contract, and which were not incurred when he failed to produce it, and award that amount to the employer.’

Citations:

[1935] 79 SJ 593

Jurisdiction:

England and Wales

Cited by:

Cited – Tullett Prebon Group Ltd v El-Hajjali QBD 31-Jul-2008
The defendant signed an employment contract to join the claimants as a senior broker. He changed his mind and decided to stay in his existing job. The new employers sued for breach of contract. The defendant said that the claimants had refused to . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment, Damages

Updated: 07 October 2022; Ref: scu.282598

Hellyer Bros Limited v McLeod: CA 1987

Slade LJ Approved the dictum of Waite J at the EAT.

Judges:

Slade LJ

Citations:

[1987] ICR 526

Jurisdiction:

England and Wales

Citing:

Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Appeal from – Hellyer Bros Limited v McLeod EAT 1985
Waite J said: ‘If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 October 2022; Ref: scu.465702

Robertson v British Gas Corporation: CA 1983

Collective agreements ordinarily create no legally enforceable obligations between a union and the employers. Akner LJ did not accept that the statutory statement of terms and conditions equally placed a heavy burden on the employee and employer in establishing the terms of the employment.

Judges:

Akner LJ

Citations:

[1983] ICR 351

Jurisdiction:

England and Wales

Citing:

Approved – System Floors (UK) Ltd v Daniel EAT 14-Oct-1981
Browne-Wilkinson J discussed the status of the statement of main terms of employment: ‘It provides very strong prima facie evidence of what were the terms of the contract between the parties but does not constitute a written contract between the . .

Cited by:

Cited – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 07 October 2022; Ref: scu.396481

Felix Palacios de la Villa v Cortefiel Servicios SA: ECJ 16 Oct 2007

ECJ (Grand Chamber) Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in work; and then reintroduced it by allowing collective agreements to prescribe retirement ages, provided that the worker had qualified for a retirement pension.
Held: Despite recital 14, requiring retirement at a particular age is direct age discrimination within the meaning of article 2(1) and 2(2)(a) and has therefore to be justified. But this did not preclude national legislation allowing for this, even if the social policy aims were not spelled out in the legislation, as long as it could be decided from the context and other sources what those aims were. The encouragement of recruitment was a legitimate aim. The means employed had still to be both appropriate and necessary, although member states (and where appropriate social partners) enjoyed a broad discretion in the choice both of the aims and of the means to pursue them. The measure in question did not unduly prejudice the legitimate claims of the workers because it was based, not only on a specific age, but also on having qualified for a pension.
It is not necessary for the national measure at issue, in order to be justifiable under article 6(1) of the Directive, to refer expressly to a legitimate aim of the kind envisaged in article 6(1); it suffices that ‘other elements, taken from the general context of the measure concerned, enable the underlying aim of that law to be identified for the purposes of judicial review of its legitimacy and whether the means put in place to achieve that aim are appropriate and necessary.’

Judges:

Skouris P

Citations:

Times 23-Oct-2007, [2007] ECR I-8531, C-411/05, [2009] ICR 1111, [2007]EUECJ C-411/05, [2007] Pens LR 411, [2007] IRLR 989, [2008] 1 CMLR 16, [2008] All ER (EC) 249

Links:

Bailii

Statutes:

Council Directive 2000/78/EC

Jurisdiction:

European

Citing:

Order – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 15-Feb-2007
Europa Council Directive 2000/78/EC Article 6 – General principle of Community law – Age discrimination – Compulsory retirement – Direct effect – Obligation to set aside conflicting national law. . .

Cited by:

Cited – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 5-Mar-2009
(Third Chamber) The trustees complained that the respondent had failed to implement the Directive, in that there remained, for example, rules allowing employers to have fixed retirement ages.
Held: The complaint failed. The Directive allowed . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – Seldon v Clarkson Wright and Jakes (A Partnership) CA 28-Jul-2010
The claimant solicitor said that the compulsory retirement from his partnership on age grounds was discriminatory, and that the UK Regulations had not implemented the Directive fully.
Held: The appeal failed. The purpose of the provision as to . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 October 2022; Ref: scu.261649

BD v Commission (French Text) (Fonction Publique): ECJ 28 Mar 2012

Civil service – Contract staff – Non-renewal of a contract – Article 11a of the Staff Regulations – Conflict of interest – Confidence bond – Article 12b of the Staff Regulations – External activity – Presumption of innocence

Citations:

F-36/11, [2012] EUECJ F-36/11

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 06 October 2022; Ref: scu.452616

Horwood v Lincolnshire County Council: EAT 3 Apr 2012

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination – Extension of time: reasonably practicable
Claims for constructive unfair dismissal and unlawful deduction of wages were held to be out of time and the Claimant had not shown that it was not reasonably practicable for her to lodge her claims in time. The Employment Judge held that there was therefore no jurisdiction to determine them and subsequently refused to review his decision.
On appeal the key question was when was the effective date of termination (EDT), in circumstances where the Claimant had unequivocally resigned on one date, with immediate effect, and her employer subsequently informed her that her resignation would be taken as commencing on a later date, essentially for administrative purposes, and the Claimant then proceeded on the basis that the EDT was that later date. Her ET1 was lodged one day out of time.
It was held that the Employment Judge was correct to conclude on the facts that the EDT here was the earlier date, the Claimant having resigned with immediate effect and the employer having received notice of her resignation. His finding that there had been no subsequent agreed variation of the EDT was also upheld, as was his finding that the problem had arisen because of a misunderstanding between the Claimant and her legal adviser, and that it had been reasonably practicable for her to lodge her ET1 in time. The unlawful deductions claim could not survive in the circumstances and the decision that there was no jurisdiction to determine both claims was held to be correct. The appeals, against the substantive decision and the refusal to review, were both dismissed.

Judges:

Cox J

Citations:

[2012] UKEAT 0463 – 11 – 0304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452508

Dr M Tariquez-Zaman v University of London (London Deanery of Postgraduate Medical and Dental Education): EAT 27 Jun 2005

EAT Working Time Regulations – Worker.

Judges:

His Honour Judge Mcmullen QC

Citations:

UKEAT/0123/05, [2005] UKEAT 0123 – 05 – 2706

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.229257

Towler v Henry Cooke Lumsden Plc: CA 15 Nov 2001

Citations:

[2001] EWCA Civ 1734

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Henry Cooke, Lumsden Plc v Towler CA 14-Feb-2002
. .
See Also – C Towler v Henry Cooke Lumsden Plc EAT 19-Dec-2000
EAT Unfair Dismissal – Reason for Dismissal
The Appellant was a senior investment executive with the Respondents. He worked for them for 30 years in highly regulated environment. He was dismissed for . .

Cited by:

See Also – C Towler v Henry Cooke Lumsden Plc EAT 19-Dec-2000
EAT Unfair Dismissal – Reason for Dismissal
The Appellant was a senior investment executive with the Respondents. He worked for them for 30 years in highly regulated environment. He was dismissed for . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.201536

Daniel v Homerton Hospital Trust: EAT 18 May 1998

Citations:

[1998] UKEAT 569 – 98 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Daniel v Homerton Hospital Trust EAT 14-Dec-1998
. .
See Also – Daniel v Homerton Hospital Trust CA 9-Jul-1999
The court considered an appeal against the tribunal’s exercise of a discretion. Gibson LJ said: ‘The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.206370

Whitely v Marton Electrical Ltd: EAT 22 Nov 2001

Citations:

[2001] UKEAT 0841 – 01 – 2211

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Whitely v Marton Electrical Ltd EAT 27-Sep-2002
The applicant had been employed by the respondent under a modern apprenticeship contract. The employer dismissed him during the term, after a downturn in work.
Held: Though the contract was subject to the employer’s standard terms, it remained . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.204578

Carter v Hi-Way Express and others: EAT 24 Sep 2001

Citations:

[2001] UKEAT 0813 – 01 – 2409

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Aso – Hobson v Hi-Way Express and others EAT 24-Sep-2001
. .

Cited by:

See also – Carter v Hi-Way Express EAT 19-Nov-2003
EAT Practice and Procedure – Questionnaires . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.204152

London Borough of Merton v Thomas: EAT 27 Mar 2001

Citations:

[2001] UKEAT 0301 – 01 – 2703

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Thomas v Merton Racial Equality Council EAT 24-Mar-1999
. .

Cited by:

See Also – London Borough of Merton v Thomas EAT 3-May-2002
EAT Jurisdiction
EAT Contract of Employment – Written particulars. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.203695