Category: Employment

Obasa v Buckinghamshire County Council: EAT 23 Feb 2012

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Tribunal struck out the Claimant’s claims on the basis that, as a result of threatening emails sent to the Respondent’s primary witness, a fair trial could not be had. The ET did not hear evidence about what had happened from the Claimant or the witness on the basis of what the ET said was agreement between the parties. The Claimant disputed that there had been such agreement.
Held: After hearing the Claimant and the witness give evidence, that there had been such agreement, that the ET had correctly directed itself on the law and had reached a permissible conclusion.

Judges:

Jeffrey Burke QC

Citations:

[2012] UKEAT 0506 – 11 – 2302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452495

Connelly v Biffa Waste Services: EAT 8 Mar 2012

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke –
Longstanding stress and cannabis abuse were not reasons for exercising discretion to enlarge time to submit a Notice of Appeal. The Claimant’s eye injury did not prevent him making applications in writing to the Employment Tribunal so could not be relied on as an excuse for lodging a late Notice of Appeal. Muschett and Miller applied. Registrar’s decision upheld.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 1104 – 11 – 0803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452498

Nalamolu v South London and Maudsley NHS Foundation Trust: EAT 2 Mar 2012

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke – The Notice of Appeal was 35 days out of time. The Registrar refused to extend it. The Claimant was 144 days out of time in his appeal against that. At a contested hearing the EAT did not accept the Claimant’s evidence as to why he did not appeal within 5 days (that he did not receive the Practice Direction) or his excuse (that he applied for judicial review). The EAT’s practice on late appeals applied: Jurkowska, Zinda, Miller, Tamina, Muschett.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 1804 – 10 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Aziz v Bethnal Green City Challenge Company Limited CA 25-May-1999
The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
Held: Permission to appeal was refused. Sir . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.452502

Southampton City Council v Burnett: EAT 8 Mar 2012

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – Employment Tribunal fell into error in requiring employer to make findings of fact as to Claimant’s misconduct, rather than it being necessary only to show a genuine belief in the reason, conduct, for dismissal.
Appeal allowed; case remitted for re-hearing before fresh Employment Tribunal.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0276 – 11 – 0803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452503

First Glasgow Ltd v Robertson: EAT 22 Mar 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – Reinstatement/re-engagement
Bus driver dismissed for gross misconduct in relation to interference with CCTV camera in driver’s cab. Tribunal found dismissal to have been unfair; lack of parity between treatment of Claimant and earlier treatment of other employees involved in similar misconduct. Appeal against that finding on ground that Tribunal failed to distinguish between employees on basis of Claimant’s record of prior final warning. Appeal dismissed – employer had not relied on the Claimant’s prior record.
Reinstatement. Tribunal ordered reinstatement taking account of ‘judicial knowledge that the Respondent has been advertising vacancies for bus drivers. No further specification given and not raised with parties. Appeal against order for reinstatement upheld and case remitted to Tribunal to consider remedy of new.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0052 – 11 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452499

Rixon v Metropolitan Police Commissioner: EAT 20 Feb 2012

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Claimant who had professional advice withdrew his claim in writing and did not attend the hearing of the 10 day case. It was dismissed at the hearing following a written application by the Respondent under rule 25. A year later he sought to reinstate it. The Notice of Appeal was a year late. At a contested hearing the EAT did not accept the Claimant was in fear of physical violence and wrongful arrest and imprisonment by officers of the MPS and this was not an excuse for the late lodgement. Muschett, Zinda and Miller applied.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0848 – 11 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452497

Uthman v Speciality Care (EMI) Plc (T/A Craegmoor Healthcare): EAT 9 Mar 2012

EAT Practice and Procedure : Striking-Out or Dismissal – Appellate jurisdiction/reasons/Burns-Barke
Restriction of proceedings order
The Claimant did not attend her dismissal hearing. She presented her claim out of time and did not attend the Pre-Hearing Review to determine the jurisdiction to hear the dismissal and discrimination claims. The Employment Judge struck them out. The Claimant raised 4 appeals, 4 fresh appeals and an application for a stay. She did not attend the rule 3(10) where large bundles were prepared by the EAT. All appeals dismissed as wholly without merit. Edem applied.
A copy of the Judgment sent to the Registrar so she may if there is any fresh proceeding by the Appellant determine whether the matter should be referred to the Attorney General pursuant to Employment Tribunals Act 1996 section 33.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 1091 – 10 – 0903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452504

Andorful v London Borough of Hammersmith and Fulham: EAT 11 Apr 2012

EAT Practice and Procedure : Striking-Out or Dismissal – Costs
Limited issue before Employment Judge at Pre-Hearing Review, following CMD direction. Judge entitled to strike-out claim based on findings of fact.
Costs order made without taking into account all relevant factors; means only partially considered. Assessed costs reduced from andpound;10,000 to andpound;5,000.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0410 – 11 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Andorful v Reliance Security Services Ltd EAT 15-May-2009
EAT PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
New evidence on appeal
Disposal of appeal including remission
RACE DISCRIMINATION:
Direct Comparison
In the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 October 2022; Ref: scu.452505

Holmes v Greater Glasgow Health Board: EAT 8 Mar 2012

EAT Unlawful Deduction From Wages : No Sub-Topic – Unlawful deductions from wages. Sick pay. Whether periods of absence due to illness allegedly caused by failures on part of employer counted as sick leave. Claim for period from 9 December 2009. Previous claim on same grounds, for earlier period to 8 December 2009, settled, withdrawn and dismissed. ET rule 25(4). Res iudicata. Appeal from Employment Tribunal’s judgment that it had no jurisdiction to hear the second claim dismissed.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0045 – 11 – 0803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452500

Iteshi v The General Council of The Bar (The Bar Council): EAT 30 Mar 2012

EAT Race Discrimination : Direct – Discrimination by other bodies
Indirect race discrimination. Tribunal had not erred in concluding that section 12 Race Relations Act did not apply to the PCP relied on (rule imposed on barristers’ chambers re: funding of pupillages). Further, no evidence of discriminatory effect. Claim misconceived.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0161 – 11 – 3003

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452501

Pye v Queen Mary University of London: EAT 23 Feb 2012

EAT PRACTICE AND PROCEDURE – Postponement or stay
A Tribunal decided to refuse to postpone a hearing, despite the Claimant producing a letter from a consultant psychiatrist which on any fair reading gave a diagnosis (which, being a severe anxiety and depression affecting concentration, and ability to cope, and requiring urgent medical attention made it effectively impossible for the Claimant as a self-represented person to conduct what was to be a 30 day hearing), expressed the opinion that the Claimant was not fit to plead his case, and offered a reasonable prospect of recovery sufficient to permit this albeit after at least three months. There had been no previous application to postpone.
Held: that (whether the appropriate test was that of Wednesbury review, or fairness of which the appellate court was a primary judge) the Employment Tribunal erred in law in so doing. The Claimant had submitted a fuller, earlier report from the same psychiatrist to the ET, which he refused the Respondent permission to see: observations made that a litigant is not entitled to correspond secretly with a court or Tribunal, and as the way in which an ET should deal with such a situation.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0374 – 11 – 2302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452496

Dziedziak v Future Electronics Ltd: EAT 28 Feb 2012

EAT SEX DISCRIMINATION
Detailed challenges were made to the operation of a redundancy procedure. The EAT held that regard should be had to the judgment of the Tribunal taken overall and in context, and this was clear. Thus both appeal and cross appeal as to a finding of unfair dismissal (by a majority) and nil compensation (applying Polkey) were rejected.
A claim for sex discrimination causing the detriment of dismissal, because the Claimant was regularly late for work by reason of her childcare commitments as a single mother, was rejected since no detriment could be shown in consequence: this decision was not perverse.
An appeal against a finding of race discrimination was also rejected. The act which was held discriminatory was that the Claimant was told not to appeal ‘in her own tongue’ (she being Polish) in a cosmopolitan office, when no one else was so instructed, they being (generally) of other nationalities. The Employment Tribunal was entitled to regard this as so potentially inherently and directly discriminatory as to cause the burden of proof to shift. Having no explanation from the employer, it was entitled to find discrimination established

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0270 – 11 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452494

Argyll Coastal Services Ltd v Stirling and Others: EAT 15 Feb 2012

EAT TRANSFER OF UNDERTAKINGS – Transfer
TUPE. Service provision change. Vessel chartered by MOD to work in Falklands. Contract lost to Dutch company following re-tendering process. Tribunal considered application of TUPE per regulation 3 but failed to consider regulation 4; case accordingly remitted for a rehearing. Observations regarding interpretation of ‘activities’, ‘organised grouping of employees’, ‘principal purpose’, and ‘situated in Great Britain’, as used in regulations 3 and 4.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0012 – 11 – 1502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452493

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

Judges:

Maurice Kay VP, Rimer, Tomlinson LJJ

Citations:

[2012] EWCA Civ 413, [2012] Eq LR 480, [2012] ICR 1216, [2012] IRLR 507, [2012] WLR(D) 113

Links:

Bailii, WLRD

Statutes:

Equal Pay Act 1970 1(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .

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 . .
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

Updated: 06 October 2022; Ref: scu.452437

R and R Plant (Peterborough) Ltd v Bailey: CA 2 Apr 2012

The company appealed against a finding as to its compliance with the 2006 Regulations in the notices given to the respondent as to her retirement.

Judges:

Ward, McFarlane LJJ, Dame Janet Smith

Citations:

[2012] EWCA Civ 410

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452413

Johnson Controls Ltd v Campbell and Another: EAT 14 Feb 2012

EAT TRANSFER OF UNDERTAKINGS – Service provision change
A Judge was entitled to hold there had been no service provision change where a centralised taxi booking administration service was taken back in house by the client of the service and no longer thereafter operated as a centralised service. The element of centrality, coupled with some particular features of the job the Claimant taxi administrator had done, no longer existed after the change. The service as operated after the change by the client was held to be essentially a different activity, and the Judge held entitled as to find.
Langstaff P J said: ‘the identification of ‘activity’ is critical in many cases. The case before us is an example of that. An activity may be more than the sum of the tasks that are performed in respect of that activity, but a Tribunal must be careful to ensure that it does not take so narrow a view of that which ‘activity’ consists of, in the case before it, as to forget that the context in which it decides ‘activity’ is the context in which it is ever likely that employees’ continued employment will be affected. If for instance the activity performed by a given employee is after a service provision change to be performed by two or three employees in the transferee or, in a 3(1)(b)(iii) situation, by the client itself, then it may well be that the approach of the Tribunal should recognise that the same activity may well be carried on, though it is performed now by three people rather than by the one person who earlier performed it. These questions are, however, fundamentally questions of fact and degree.’

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0041 – 12 – 1402

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452333

Hill v G and R Pollard Engineering: EAT 13 Mar 2012

EAT Unfair Dismissal : Compensation : Appeal alleged Employment Tribunal wrong in assessing compensation under s.31 Employment Act 2002 and also in applying a particular cut off date. Appeal dismissed on the basis that there was adequate material upon which the Employment Tribunal could reach the conclusions it did. Cross appeal also dismissed for the same reason.

Judges:

Birtles J

Citations:

[2012] UKEAT 0059 – 11 – 1303

Links:

Bailii

Statutes:

Employment Act 2002 31

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452342

Quashie v Methodist Homes Housing Association: EAT 16 Jan 2012

EAT PRACTICE AND PROCEDURE – Right to be heard
After the conclusion of an oral hearing in a claim for unfair dismissal the Employment Tribunal directed that the parties lodge written submissions. The Claimant prepared submissions and served them on the Respondent but for some reason or mishap, they were not sent to the Employment Tribunal.
The meeting in chambers of the members of the Employment Tribunal was adjourned at the last minute on two occasions and did not take place until 5 months after the conclusion of the hearing. When the Employment Tribunal met in chambers it was appreciated for the first time that although the Respondent had lodged its submissions, none had been lodged by the Claimant. The Employment Tribunal considered that the Claimant had decided not to lodge submissions and went ahead to consider its decision on the basis of the Respondent submissions alone. It did not consider making enquiries as to why there were no submissions from the Claimant. The Employment Tribunal went on to dismiss the Claimant’s claim.
The Employment Appeal Tribunal held following the decisions of London Borough of Southwark v Bartholomew [2004] ICR 358 and Cooke v Glenrose Fish Company Ltd [2004] IRLR 866 that the case was analogous to that where a party had failed to attend a hearing. In the circumstances of the case the Employment Tribunal should have at least considered whether to make a telephone call to enquire as to the reason. The making of a telephone call was good practice, failure to make such a telephone call was an extreme step and there needed to be very good reason why the course of making the telephone call could not have been followed before taking the extreme step of proceeding on the basis of the Respondent’s submissions alone.
The right of a party to make submissions on points of fact and law in an Employment Tribunal is an important right to ensure a fair hearing and is expressly provided for by rule 27(2) of the Employment Tribunal Rules of Procedure. Very good cause must be shown before a litigant is deprived of that right.
The Employment Tribunal appeared not to have asked itself the correct question (‘what was the reason for the absence of the submission?’) but asked itself instead why the Claimant had decided not to file one.
Although the decision to proceed in the absence of enquiry was a case management decision, it had led to a breach of natural justice. The Employment Appeal Tribunal would not overturn a decision based upon a breach of natural justice unless it could be shown that the breach was not simply technical and that the party concerned had suffered something which was ‘seriously irregular and unfair’; Mayo-Deman v Lewisham College [2003] UKEAT/0104/02, BAILII: [2003] UKEAT 0104 – 02 – 0812, applied.
The Claimant did not have to prove that consideration of the submissions would definitely have led to a different conclusion; it was sufficient that the Claimant had demonstrated that there was a real possibility that consideration of the submissions may have led to a different result. It was impossible on the facts of this case to say that the result would have been the same in any event had the submissions been considered.
Appeal allowed and case remitted for rehearing by a fresh Employment Tribunal.

Judges:

Serota QC

Citations:

[2012] UKEAT 0422 – 11 – 1601

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452331

ISS Mediclean Ltd v Elesina: EAT 25 Jan 2012

EAT UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
Was the Employment Tribunal correct to find that the Claimant was entitled, under her contract, to enhanced pay rates for working unsocial hours and that the Respondent had made unlawful deductions from her wages in not paying those enhanced rates? The Claimant was employed not directly in the NHS but by a private company providing facility services to hospital trusts. On a correct construction of her contract the Claimant’s entitlement was contingent upon the Respondent receiving funds for unsocial hours rates from the NHS Trust where she worked. Appeal allowed.

Judges:

Cox J

Citations:

[2012] UKEAT 0427 – 11 – 2501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452330

Hawkins v Atex Group Ltd and Others: EAT 13 Mar 2012

EAT Sex Discrimination : Marital Status: A was married to the Chief Executive of R1 (H). She had for some time worked for R1 as a contractor. It was R1’s case that the Chairman told H that from the end of 2009 he should not employ any member of his family in the business, because of concerns about perceived conflicts of interest and nepotism. A became an employee of the company at the beginning of 2010 (and her and H’s daughter also became an employee in late 2009). She was dismissed on the ground that her employment was in breach of the instruction to H (her daughter also being dismissed on similar grounds). Her claim of discrimination on the ground that she was married, under section 3 of the Sex Discrimination Act 1975, was struck out by an Employment Judge on the basis that it had no reasonable prospect of success.
HELD, dismissing A’s appeal:
(1) Less favourable treatment on the basis that the complainant is married to a particular person falls within section 3, but only if the ground for the treatment is, specifically, that they are married, rather than only that they are in a close relationship which happens to take the form of marriage – Skyrail Oceanic Ltd v Coleman [1980] ICR 596 and Chief Constable of Bedfordshire v Graham [2002] IRLR 239 followed – Aspects of the reasoning in Dunn v Institute of Cemetery and Crematorium Management (UKEAT/0531/10) doubted.
(2) On the facts of the instant case the Judge was right to find that there was no realistic prospect of A establishing that the ground of her treatment was marriage-specific in the relevant sense.

Judges:

Underhill P

Citations:

[2011] UKEAT 0302 – 11 – 1303

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 3

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452341

Kaltz Ltd v Hamer: EAT 24 Feb 2012

EAT UNFAIR DISMISSAL
Contributory fault
Polkey deduction
Employee dismissed following disciplinary proceedings for: (1) misconduct towards other staff; (2) misconduct in attitude to directors; and (3) disclosure of information from staff payroll (3 instances).
Employment Tribunal reject claims of wrongful and unfair dismissal but find dismissal ‘automatically unfair’ because one instance of disclosure was a protected disclosure: Employment Rights Act 1996 s.103A. At remedies hearing, no deduction from compensation made on account of either (a) the other conduct or (b) possibility that she would have been dismissed on the other grounds.
Employer’s appeal on compensation allowed and remitted to Tribunal to re-consider. If no deduction was warranted its Reasons should, given the factual background, explain why not.

Judges:

Luba QC

Citations:

[2012] UKEAT 0198 – 11 – 2402

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452334

Nuttall v Szewczuk and Another: EAT 27 Feb 2012

EAT CONTRACT OF EMPLOYMENT – Notice and pay in lieu
The Employment Judge awarded, among other sums, compensation for wrongful dismissal on the basis of a four-week notice period. However, the contract and notice period, during the employee’s probationary period, was (as the employee agreed) one week. Appeal allowed to extent that the sum awarded was reduced appropriately.

Judges:

Burke QC J

Citations:

[2012] UKEAT 0407 – 11 – 2702

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452335

Segor v Goodrich Actuation Systems Ltd: EAT 10 Feb 2012

EAT SUMMARY
PRACTICE AND PROCEDURE
Withdrawal
The Tribunal rejected the evidence of the Claimant that she had been racially and sexually discriminated against as a French woman of black Afro-Caribbean origin, save in one respect as to which it wished to hear more from the parties at a further hearing. This was whether there was any defence to a claim for discrimination where it was admitted that the employer had not appointed the Claimant as a Project Manager (Military) because the US Government, as a major customer, had until 2007 proscribed French nationals from being engaged in such a capacity in the employment of those contracted to supply parts for arms and military aircraft (as were the Respondent employers). At the hearing, the Employment Tribunal considered that the Claimant’s lay representative (a non-practising barrister) had abandoned a claim that to apply a foreign requirement not to employ persons of her race was discriminatory, in order to focus on a claim that the employer more generally discriminated deliberately against her on the ground of her race, sex or nationality.
It was held that the ET did not take the correct approach in law to determining whether there had been an abandonment: it needed to know that any abandonment was clear, unambiguous and unequivocal, and that could not be said of what had happened before the Tribunal.
Remitted to the same Tribunal for further hearing.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0145 – 11 – 1002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452336

Allsop v Christiani and Nielsen Ltd: EAT 14 Mar 2012

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination : Unlawful deduction from wages
The Claimant appealed against the Employment Tribunal’s determination at a Pre-Hearing Review that there was no jurisdiction to determine his claims for unlawful deductions from wages, on the basis both that (1) they were out of time and (2) they were, when properly analysed, claims for damages for breach of contract and outwith the statutory regime for unlawful deductions claims.
Additional questions related to the date when the Claimant’s employment had been terminated, and whether the Administrators (the Respondents having gone into administration) had adopted his contract of employment.
No error of law was identified in the ET’s decision and the appeal was therefore dismissed.

Judges:

Cox J

Citations:

[2012] UKEAT 0241 – 11 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452338

Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley: EAT 23 Mar 2012

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Appellant was employed as a radiographer. Following an accident at work she made a phased return to work until her condition worsened and she recommenced long term sick leave and was eventually dismissed. The Employment Tribunal found a failure to implement various reasonable adjustments and awarded (a) andpound;30,000 plus interest for injury to feelings and (b) andpound;10,000 aggravated damages. The EAT found none of the provisions, criteria or practices (PCP’s) identified by the Tribunal were capable on analysis of being PCP’s. Alternatively the andpound;30,000 award for injury to feelings was well outside the Vento guidelines and there was no basis for awarding aggravated damages: Commissioner of Police for the Metropolis v Shaw UKEAT/0125/11/ZT applied.

Judges:

Birtles J

Citations:

[2012] UKEAT 0417 – 11 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452343

Williams v Bannatyne Fitness Ltd: EAT 17 Feb 2012

EAT VICTIMISATION DISCRIMINATION – Other forms of victimisation
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
Reverse burden of proof not applied to DDA victimisation claim; unclear what burden of proof was applied to direct and disability related discrimination claims. Appeal allowed; claims remitted to same Employment Tribunal for rehearing.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0485 – 11 – 1702

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452337

Ashton and Another v Burbage and District Constitutional Club: EAT 24 Feb 2012

EAT PRACTICE AND PROCEDURE – Postponement or stay
The Claimants applied for an adjournment on ill health grounds, accompanied by an unfit for work certificate and a GP’s letter stating that the Claimants needed two months to address and improve their stress. The Employment Tribunal refused an adjournment on the grounds that there was nothing to show that, if granted, the Claimants’ health would be likely to improve; that reason was wrong; there was evidence to that effect. A very rare case in which the ET’s deliberation as to adjournment was exercised in error of law.

Judges:

Burke QC

Citations:

[2012] UKEAT 0496 – 11 – 2402

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452332

Daughters v Aqua Financial Solutions Ltd: EAT 14 Mar 2012

EAT Unfair Dismissal : Claimant dismissed for behaviour in a bar while drinking with clients. She apologised to the clients the following morning. The Employment Tribunal dismissed claims of (a) unfair dismissal and (b) wrongful dismissal. Appeal allowed on the grounds that (a) contrary to the Tribunal’s finding there were serious disputes of fact which the disciplinary hearing and the appeal did not attempt to resolve (b) the Tribunal wrongly discounted the pressure brought by the Respondent’s chairman and majority shareholder for the Claimant to be dismissed (c) there was no attempt to address the third limb of Burchell except by assertion.

Judges:

Birtles J

Citations:

[2012] UKEAT 0149 – 11 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452339

F v Cleveland Police Authority: EAT 14 Mar 2012

EAT Disability Discrimination : Disability – Practice and Procedure – New evidence on appeal
Disability issue below. Employment Tribunal found Claimant not disabled, based at least in part on her failure to produce relevant medical records leading to Employment Tribunal taking an adverse view of her credibility generally.
On appeal, missing records admitted under Ladd v Marshall principles by way of fresh evidence.
On this basis (perversity challenge having failed) case remitted to same Employment Tribunal, if practicable, to reconsider disability question.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0586 – 11 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 October 2022; Ref: scu.452340

Woodcock v Cumbria Primary Care Trust: CA 22 Mar 2012

The claimant appealed against rejection of his claim of age discrimination. the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would cease before he reached the age which would trigger a higher severance payment. The tribunal and EAT had found the action a proportionate means of achieving a legitimate aim.
Held: The dismissal notice was not served with the simple aim of dismissing him before his 49th birthday but in order to give effect to a genuine decision that his position was redundant. It was justifiable to implement that decision in a way which saved money.

Judges:

Arden, Rimer LJJ, Ryder J

Citations:

[2012] ICR 1126, [2012] EWCA Civ 330

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006

Jurisdiction:

England and Wales

Citing:

Appeal from – Woodcock v Cumbria Primary Care Trust EAT 12-Nov-2010
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – 2002 Act
Claimant’s post as Chief Executive of NHS Primary Care Trust disappears in reorganisation – Not selected for successor post – After twelve months . .

Cited by:

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.

Discrimination, Employment

Updated: 06 October 2022; Ref: scu.452251

Niekrash v South London Healthcare NHS Trust: EAT 7 Mar 2012

EAT VICTIMISATION DISCRIMINATION – Whistleblowing
Appeal on various grounds against the refusal of an Employment Tribunal to make an award of aggravated damages where the Appellant had been found to have suffered detriment in being excluded from his work as a hospital consultant urologist. Held (amongst other grounds of appeal rejected) that an Employment Tribunal is only required to consider such factors in support of the claim for aggravated damages as are argued before it and not trawl through the evidence to consider points not made to it in argument. In any event the Employment Tribunal had correctly applied Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT, 29 November 2011.

Judges:

Birtles J

Citations:

[2012] UKEAT 0252 – 11 – 0703

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451893

Bon Groundwork Ltd v Foster: CA 13 Mar 2012

Appeal against the judgment of the EAT allowing an appeal against the judgment of the Tribunal striking out certain of the claims the respondent. The claims were struck out on two bases. With respect to some of the claims, she considered that they were res judicata, having been effectively determined by Employment Judge Salter in an earlier application. As to certain other claims, she considered that they amounted to an abuse of process within the principle enunciated in Henderson v Henderson (1843) 3 Hare 100.

Judges:

Pill, Arden, Elias LJJJ

Citations:

[2012] EWCA Civ 252, [2012] ICR 1027, [2012] IRLR 517

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451900

Halpin v Sandpiper Books Ltd: EAT 6 Feb 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Fairness
Since the Claimant was the only employee based in China, the Respondent’s decision to make the post redundant could only be based on a ‘pool of one’. Decisions as to pools and criteria are matters for management and an Employment Tribunal will rarely interfere with them. The Employment Tribunal correctly dismissed the challenge to the fairness of the decision based solely on the question of ‘the pool’, an elusive concept where only one relevant employee is involved.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0171 – 11 – 0602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451888

Markham v Brighton Football Club (RFU) Ltd: EAT 16 Feb 2012

EAT UNFAIR DISMISSAL
Procedural fairness/automatically unfair dismissal
S.98A(2) ERA
Polkey deduction
Having found that the Claimant’s dismissal was automatically unfair under section 98A(1) ERA the Employment Tribunal erroneously went on to consider section 98A(2) and appeared to dismiss the claim. Appeal by Claimant allowed; applying Polkey principles EAT accepted that a fair redundancy dismissal following a proper procedure was inevitable. EAT assessed compensation.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0476 – 11 – 1602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451889

Growcott v Glaze Auto Parts Ltd: EAT 6 Feb 2012

EAT PRACTICE AND PROCEDURE – Costs
The employee was, after investigation dismissed for misconduct. Her unfair dismissal claim failed, as did her appeal against the Employment Tribunal’s decision. The employers then sought and obtained an order that the employee should pay their costs from the date of an email sent to the employee by the employers’ solicitors warning her of the issues in the unfair dismissal proceedings, and of the Burchell principles and that if she persisted they would apply for costs. She went ahead despite the email.
The employee appealed against the costs order; her criticisms of the ET were largely criticisms of their original rejection of her unfair dismissal claim.
Held: that the ET were entitled to find that the employee had acted unreasonably in continuing her claim after the email.

Judges:

Burke QC J

Citations:

[2012] UKEAT 04193 – 11 – 0602

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 05 October 2022; Ref: scu.451887

Southern Cross Healthcare v Owolabi: EAT 2 Feb 2012

EAT RACE DISCRIMINATION
Direct
Comparison
The Appellant was found to have been guilty of direct race discrimination arising from specific incidents of racial abuse and failure to consider his grievances properly while promptly investigating allegations against him. There were 15 grounds of appeal – attacking the Employment Tribunal’s finding as to a contributory act, as to comparators and as to factual conclusions. Held – none of the grounds succeeded. No new principle involved.

Judges:

Burke QC

Citations:

[2012] UKEAT 0056 – 11 – 0202

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 October 2022; Ref: scu.451892

Meter U Ltd v Ackroyd and Others: EAT 28 Feb 2012

EAT TRANSFER OF UNDERTAKINGS – Economical technical or organisational reason
‘Workforce’ in Regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 does not include corporate franchisees. The Respondent’s business model of using franchisees to carry out meter reading rather than employees was long established and made the Respondent more competitive in winning contracts. The Employment Tribunals erred in holding that the dismissal of employee meter readers transferred to the Respondent under TUPE was not for an economic, technical or organisational reason entailing changes in the workforce. Subject to determination in the Hardy cases of whether the franchise agreements were a sham, no other conclusion could be reached other than that the dismissals in both cases were for an economic, technical or organisational reason entailing changes in the workforce and were by reason of redundancy.

Judges:

Slade DBE J

Citations:

[2012] UKEAT 0206 – 11 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451890

Centrewest London Buses Ltd v Musse and Others: EAT 12 Jan 2012

EAT TRANSFER OF UNDERTAKINGS
Dismissal/automatically unfair dismissal
Service provision change
The Claimants worked for a bus undertaking on a route transferred to another bus company under TUPE. This was found to involve a significant change to their material detriment. Arguments that this did not justify a finding in favour of the Claimants under regulation 4(9) of TUPE were rejected.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0631 – 11 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451885

Abellio London Ltd v Musse and Others: EAT 12 Jan 2012

EAT TRANSFER OF UNDERTAKINGS
Dismissal/automatically unfair dismissal
Service provision change
The Claimants worked for a bus undertaking on a route transferred to another bus company under TUPE. This was found to involve a significant change to their material detriment. Arguments that this did not justify a finding in favour of the Claimants under regulation 4(9) of TUPE were rejected.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0283 – 11 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451884

Pasab Ltd (T/A Jhoots Pharmacy) v Woods: EAT 2 Feb 2012

EAT VICTIMISATION DISCRIMINATION – Other forms of victimisation
RELIGION OR BELIEF DISCRIMINATION
Victimisation. RB Regs 2003. Reason why Claimant was dismissed. On facts found it was not because Claimant had done a protected act but because Respondents characterised words said by Claimant as a racist comment. Appeal allowed. Employment Tribunal decision reversed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0454 – 11 – 0202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451891

Hammersmith and Fulham London Borough Council v Ladejobi: EAT 2 Sep 1999

The time limits for lodging appeals against Employment tribunal rulings are strict. The date of promulgation is the operative date from which the date sent is to be calculated. The rules set aside the normal rules on interpretation as to when a document might be deemed to arrive.

Judges:

Morrison P

Citations:

Gazette 02-Sep-1999, [1999] ICR 673

Statutes:

Employment Appeal Rules 1993, Interpretation Act 1978 7

Jurisdiction:

England and Wales

Citing:

See Also – London Borough of Hammersmith and Fulham v Ladejobi EAT 1-Nov-1998
The tribunal was asked as to the date from which time started to run for the purposes of calculating the 42-day period within which an appeal should have been brought from a decision of an Employment Tribunal, if it was to be brought at all.

Cited by:

Applied – Gdynia American Shipping Lines (London) Ltd v Chelminski CA 8-Jul-2004
The employers had sought to appeal from a decision of the employment tribunal. The EAT had refused it as out of time.
Held: The rules required the appellant to file within 42 days of receiving the decision, the notice of appeal together with a . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 October 2022; Ref: scu.81207

Smith and Grady v The United Kingdom: ECHR 27 Sep 1999

The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into private lives and sexual activity were intrusive, and given the excessive consequences following, were also striking in their inability to admit of exceptions. The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the Convention.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; No violation of Art. 3 or Art. 14+3; Not necessary to examine under Art. 10 or Art. 14+10; Violation of Art. 13; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Citations:

Gazette 10-Nov-1999, Times 11-Oct-1999, (1999) 29 EHRR 493, (1999) IRLR 734, (2001) 31 EHRR 620, [2000] 29 EHRR 549, [2000] ECHR 383, 33986/96, [1999] ECHR 72, [1999] ECHR 180, 33985/96

Links:

Worldlii, Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 8 13 41, Prison Act 1952, European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Appeal from – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Appeal from – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .

Cited by:

Cited – The Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Wilkinson, Regina (on the Application Of) v Inland Revenue HL 5-May-2005
The claimant said that the widows’ bereavement tax allowance available to a wife surviving her husband should be available to a man also if it was not to be discriminatory.
Held: Similar claims had been taken before the Human Rights Act to the . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
See Also – Smith And Grady v United Kingdom (Article 41) ECHR 25-Jul-2000
. .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment, Armed Forces, Administrative

Updated: 05 October 2022; Ref: scu.165747

Parker Rhodes Hickmotts Solicitors v Harvey: EAT 9 Feb 2012

EAT UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
One year’s continuous employment completed on employer’s first notice of dismissal but not on second notice. Second notice prevails; see Stapp; M-Choice. Employer’s appeal allowed; Employment Tribunal had no jurisdiction to consider Claimant’s unfair dismissal claim.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0455 – 11 – 0902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451779

NwosuagwuIbe v Royal Bank of Scotland: EAT 23 May 2011

Race Discrimination : Inferring Discrimination – The Employment Tribunal was entitled to conclude on the facts that the Claimant had not been unfairly dismissed; Claimant’s appeal dismissed.
In relation to two claims for victimisation the Claimant claimed that she was subjected to less favourable treatment by reason of having done protected acts. The Employment Tribunal dismissed the claims. Case remitted to a fresh Employment Tribunal because the Employment Tribunal had misunderstood the nature of the Claimant’s case as the initiation of the acts said to amount to less favourable treatment.
A third act of victimisation was found by the Employment Tribunal to have been made out. However this allegation was not pleaded in the ET1. In the circumstances the Employment Tribunal should not have embarked on a trial of the issue; appeal allowed.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0595 – 10 – 2402

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – NwosuagwuIbe v Royal Bank of Scotland EAT 23-May-2011
Race Discrimination : Inferring Discrimination – The Employment Tribunal was entitled to conclude on the facts that the Claimant had not been unfairly dismissed; Claimant’s appeal dismissed.
In relation to two claims for victimisation the . .

Cited by:

See Also – NwosuagwuIbe v Royal Bank of Scotland EAT 23-May-2011
Race Discrimination : Inferring Discrimination – The Employment Tribunal was entitled to conclude on the facts that the Claimant had not been unfairly dismissed; Claimant’s appeal dismissed.
In relation to two claims for victimisation the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 October 2022; Ref: scu.451684

Zarkasi v Anindita and Another: EAT 18 Jan 2012

EAT JURISDICTIONAL POINTS – Fraud and illegality – RACE DISCRIMINATION
Comparison
Direct
An Employment Tribunal rejected a claim by an Indonesian domestic worker who had freely and voluntarily participated in arrangements to enter the UK by pretending to be someone else, so that she could work for the Respondents, for rights based on the contract of employment on the basis it was illegal from the outset. She claimed to have been trafficked.
Held: that the ET correctly refused to consider whether that enabled her to obtain compensation in respect of a breach of rights dependent upon the contract. Also rejected was her complaint that the ET were wrong to compare her with others who had no right to stay or work in the UK, and that it should have concluded that but for her immigration status (dependent on her nationality) she would have succeeded in her claim.

Judges:

Lansgatff P J

Citations:

[2012] UKEAT 0400 – 11 – 1801

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 October 2022; Ref: scu.451685

Pace Telecom Ltd v Mcauley: CANI 5 Oct 2011

Judges:

Coghlin LJ, Hart J and Sir John Sheil

Citations:

[2011] NICA 63

Links:

Bailii

Jurisdiction:

Northern Ireland

Citing:

Cited – Adams v GKN Sankey Ltd EAT 1980
The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 October 2022; Ref: scu.451595

Unison v Kelly and Others: EAT 22 Feb 2012

EAT Trade Union Rights : Action Short of Dismissal – The Respondents are members of Unison. The Tribunal found that they were unjustifiably disciplined by the union contrary to s.64 of the Trade Union and Labour Relations (Consolidation) Act 1992. They were each banned from holding office in the union for three-five years.
The restrictions on trade union discipline imposed by s.65(2)(c) do not amount to an unlawful contravention of Article 11 ECHR. Members of unions have a right to hold their unions to account for breaching union rules where the members act in good faith. ASLEF v UK [2007] IRLR 361 distinguished.
No issue estoppel arose from earlier tribunal proceedings where the issue was whether the decision to hold a disciplinary investigation was made on the grounds of the Respondents’ political beliefs.
The words ‘would be disciplined’ in s.65(5) mean would have been disciplined as the relevant individual was in fact disciplined.
The Tribunal’s finding that in the absence of the allegation that the union’s Standing Orders Committee was contravening union rules the Respondents would not have received the disciplinary sanctions that they did for having caused unintentional racial offence was not perverse.
No error of law was made by the Tribunal in the application of s.65(6). The Tribunal, having found that the Respondents genuinely believed the assertion to be true and that it was made in good faith, was entitled to consider it was not necessary for it to decide whether the assertion was in fact true or false.
Appeal dismissed.

Judges:

Supperstone J

Citations:

[2012] UKEAT 0188 – 11 – 2202

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 64

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451467

Richardson v Canterbury College: EAT 20 Jan 2012

EAT Practice and Procedure : Striking-Out or Dismissal – A letter from the Employment Tribunal was capable of misinterpretation: it might (as the author intended) have ruled adversely to the Claimant as to waiving a deposit she had been ordered to pay, but it might not (as the Claimant appeared in contemporaneous correspondence to understand it). When an Employment Judge struck out the claim for non-payment of the deposit he did so without apparent consideration of the contemporaneously expressed view of the Claimant, and ought to have taken into account her understanding of the position before ruling against a review of the strike out. Case remitted.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0521 – 11 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451464

Capita Hartshead Ltd v Byard: EAT 20 Feb 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – Redundancy- selection of pool from which person to be selected for dismissal.
Does the statement of Mummery J in the case of Taymech v Ryan [1994] EAT/663/94 that ‘the question of how the pool should be defined is primarily a matter for the employer to determine’ mean that the Employment Tribunal is precluded from holding that a decision by an employer is flawed so that the employee selected by the employer has been unfairly dismissed?
No and the Employment Tribunal was entitled to scrutinise the decision in the light of section 98(4) of the ERA.
Its decision in this case cannot be criticised.
Principles to be applied by Employment Tribunals in cases challenging decisions of employers on selecting the pool from which employees are to be dismissed for redundancy (Paragraph 31).

Judges:

Silber J

Citations:

[2012] UKEAT 0445 – 11 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Taymech Ltd v Ryan EAT 15-Nov-1994
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 October 2022; Ref: scu.451465

Cormie v Rodger (T/A Dalneigh Post Office and Stores): EAT 26 Jan 2012

EAT UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
Contract of employment. Whether Claimant was an employee where, after eight years as an employee working in a post office and general store, she took over (in addition to her previous duties) the duties of sub-postmaster, entering into a contract with the Post Office to do so. On appeal, held that Employment Tribunal had erred in failing to find that she had remained an employee of the Respondent; they had failed to look at the whole relevant circumstances.

Judges:

Smith L

Citations:

[2012] UKEAT 0036 – 11 – 2601

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451463

Eddie Stobart Ltd v Foerman and Others: EAT 17 Feb 2012

EAT Transfer of Undertakings : Service Provision Change – An ‘organised grouping of employees [whose] principal purpose is the carrying out of . . activities . . on behalf of [a particular] client’ within the meaning of regulation 3 (3) (a) (i) of TUPE will only exist where the employees in question are organised by reference to the provision of services to the relevant client.

Judges:

Underhill P J

Citations:

[2012] UKEAT 0223 – 11 – 1702

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451466

Allma Construction Ltd v Laing: EAT 25 Jan 2012

EAT Unfair Dismissal : Compensation – Contributory fault
Unfair Dismissal. Contribution. Employer’s appeal against finding of only 5% contribution upheld where Employment Tribunal had plainly misunderstood the facts and failed, accordingly, to appreciate that Claimant’s conduct involved knowingly breaching an important health and safety rule.

Judges:

Smith L

Citations:

[2012] UKEAT 0041 – 11 – 2501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451461

Blair and Others v Hotel Solutions London Ltd: EAT 17 Jan 2012

EAT Unlawful Deduction From Wages : CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term – The Claimants, room attendants at a hotel, claimed to be entitled to overtime pay under the terms of their contract, when they were unable to complete the work they were required to carry out each day without having to work during the one hour break to which they were entitled under the contract. The Employment Tribunal held that overtime was entirely voluntary under the contract and that their employer had not in fact required them to work longer hours than they were contracted to work. Their claim for unlawful deduction of wages failed. The ET’s Judgment was upheld, no error of law being disclosed.

Judges:

Cox J

Citations:

[2012] UKEAT 0412 – 11 – 1701

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 October 2022; Ref: scu.451462

MacDonald v Ministry of Defence: EAT 19 Sep 2000

The appellant, a homosexual, appealed against rejection of his claims for sex discrimination and sexual harassment.

Judges:

Lotd Johnston

Citations:

[2000] UKEAT 0121 – 00 – 1909, [2001] ICR 1, [2001] Emp LR 105, [2001] HRLR 5, [2000] IRLR 748, [2001] 1 All ER 620

Links:

Bailii

Statutes:

Equal Treatment Directive 76/207/EEC, Sex Discrimination Act 1975 86

Employment, Discrimination, Human Rights

Updated: 05 October 2022; Ref: scu.451395

Crawford and Another v Suffolk Mental Health Partnership NHS Trust: CA 17 Feb 2012

The claimant nurses appealed against the reversal of the finding that they had been unfairly dismissed. They had been accused of manhandling an aggressive dementia patient.

Judges:

Laws, Elias, Kitchin LJJ

Citations:

[2012] EWCA Civ 138

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Suffolk Mental Health Partnership NHS Trust v Crawford and Another EAT 3-Mar-2011
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimants were dismissed for gross misconduct in restraining an elderly dementia patient. The Employment Tribunal found that the employer had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 October 2022; Ref: scu.451385

FDA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Another: CA 20 Mar 2012

The FDA and other trades unions challenged the use by the respondent of the Consumer Price Index rather than the Retail Prices Index for use in the uprating of civil service pensions.
Held: The respondent was so entitled. In ordinary language, the change in CPI over a given period could properly be said to be a measure of the change in ‘general prices’ over that period. Aby common sense and in the light of the closing words of section 150(1) (‘estimated in such manner as the Secretary of State thinks fit’), there could be more than one way of measuring a change in general prices over a particular period.
Lord Neuberger of Abbotsbury MR said: ‘Where a decision-maker has taken a legally irrelevant factor into account when making his decision, the normal principle is that the decision is liable to be held to be invalid unless the factor played no significant part in the decision-making exercise . . Thus, in Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P and CR 306, 325-326, Purchas LJ (with whom the other two members of the Court of Appeal agreed) approved an observation of Forbes J in R v Rochdale Metropolitan Borough Council, Ex p Cromer Ring Mill Ltd [1982] 3 All ER 761, 770, explaining that a decision would not be set aside where the irrelevant factor was ‘insignificant or insubstantial’, as opposed to a case where the irrelevant factor’s ‘influence was substantial.
Even where the irrelevant factor played a significant or substantial part in the decision-maker’s thinking, the decision may, exceptionally, still be upheld, provided that the court is satisfied that it is clear that, even without the irrelevant factor, the decision-maker would have reached the same conclusion. ‘

Judges:

Lord Neuberger of Abbotsbury MR, Maurice Kay, Sullivan LJJ

Citations:

[2012] EWCA Civ 332, [2012] Pens LR 215, [2013] 1 WLR 444, [2012] WLR(D) 95, [2012] 3 All ER 301

Links:

Bailii, WLRD

Statutes:

Social Security Administration Act 1992 150

Jurisdiction:

England and Wales

Cited by:

Cited – MR, Regina (on The Application of) v The Secretary of State for The Home Department Admn 10-Mar-2017
The claimant challenged the use of the Royal Prerogative to withdraw his passport. He had as a youth been involved with a terrorist organisation, but said that he now regretted that and was no longer so involved. He had sought to set up a business, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 October 2022; Ref: scu.452197

Hibbert v Apple Europe Ltd: EAT 24 Jan 2012

EAT Practice and Procedure : Postponement or Stay – Review – Claimant unable to attend substantive Employment Tribunal hearing due to his having to take his sick child to hospital. So informed ET, which proceeded to hear case in his absence. Review applications summarily dismissed. – Claimant’s appeal allowed. Case remitted for rehearing.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0134 – 11 – 2401

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.451223

Fulthorpe and Another v Heal: EAT 20 Jan 2012

EAT Contract of Employment : Damages for Breach of Contract – UNLAWFUL DEDUCTION FROM WAGES – SEX DISCRIMINATION – Injury to feelings – In time appeal against remedy Judgment only. Appeal against liability default Judgment and review Judgment time-barred. Attempt to re-argue liability issue disallowed. Appeal dismissed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0420 – 11 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.451222

Countrywide Estate Agents (Unlimited) and Another v Rice: EAT 26 Nov 2008

EAT DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
The Employment Tribunal confused the relevant tests for disability discrimination under s.3A of the Disability Discrimination Act 1995 as amended. Case remitted to the Employment Tribunal to consider the issue of disability discrimination in the light of the judgment and London Borough of Lewisham v Malcolm [2008] IRLR 700 (HL).

Judges:

Birtles J

Citations:

[2008] UKEAT 0392 – 08 – 2611

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 3A

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.317882

Mountain Spring Water Co Ltd v Colesby: EAT 18 Apr 2005

EAT Unfair Dismissal – Reasonableness of dismissal.

Judges:

The Honourable Mr Justice Burton

Citations:

[2005] UKEAT 0855 – 04 – 1804, UKEAT/0855/04

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Colesby v Mountain Spring Water Co Ltd EAT 11-Sep-2003
EAT Practice and Procedure – Application/Claim. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.228636

Kovacs v Queen Mary and Westfield College and Another: CA 18 Dec 2001

Citations:

[2001] EWCA Civ 2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Dr I Kovacs v Queen Mary and Westfield College, the Royal Hospital NHS Trust EAT 1-Dec-2000
EAT Procedural Issues – Employment Tribunal
EAT Procedural Issues – Employment Tribunal. . .

Cited by:

See Also – Dr I Kovacs v Queen Mary and Westfield College and Another CA 22-Mar-2002
The claimant had had mixed success in claims for race discrimination, but appealed orders to pay to the costs of the respondents. She claimed to be impecunious and that that should have been taken into account before deciding whether a costs order . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.218632

London Borough of Ealing v Rihal: EAT 11 Sep 2003

EAT Practice and Procedure – Estoppel or Abuse of Process.

Judges:

His Hon Judge J Burke QC

Citations:

[2003] UKEAT 0987 – 01 – 1109, EAT/987/02

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – London Borough of Ealing v Rihal EAT 24-Jan-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.191801

Secretary of State for Justice v Prison Officers Association: QBD 19 Dec 2019

The Secretary of State for Justice seeks an order of appropriate penalty against the Prison Officers’ Association (‘the POA’) under CPR 81, for alleged civil contempt by reason of disobedience of a court order.

Judges:

Lady Justice Simler and Mr Justice Cavanagh

Citations:

[2019] EWHC 3553 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.645990

Central Manchester University Hospitals Nhs Foundation Trust v Browne: EAT 10 Feb 2012

EAT RACE DISCRIMINATION
Inferring discrimination
Comparison
Appeal by the Hospital Trust on grounds that (a) there was a failure to construct a true hypothetical comparator (b) there was a failure to properly consider whether the treatment of the Claimant was on racial grounds under s.1(1)(a) of the Race Relations Act 1976 and (c) there were insufficient grounds to establish a finding of victimisation. The EAT dismissed the appeal. There were careful findings of fact to permit the Tribunal to find (a) race discrimination, and (b) victimisation.

Judges:

Birtles J

Citations:

[2011] UKEAT 0294 – 11 – 1002

Links:

Bailii

Statutes:

Race Relations Act 1976 1(1)(a)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.451168

Kucuk v Land Nordrhein-Westfalen: ECJ 26 Jan 2012

Social policy – Directive 1999/70/EC – Clause 5(1)(a) of the Framework Agreement on fixed-term work – Successive fixed-term employment contracts – Objective reasons liable to justify the renewal of such contracts – National rules justifying the use of fixed-term contracts in cases of temporary replacement – Permanent or recurring need for replacement staff – Taking into account of all circumstances surrounding the renewal of successive fixed-term contracts

Judges:

J.N. Cunha Rodrigues P

Citations:

C-586/10, [2012] EUECJ C-586/10

Links:

Bailii

Statutes:

Directive 1999/70/EC 5

European, Employment

Updated: 04 October 2022; Ref: scu.451173

Fouwels And Others v Commission: ECJ 20 Sep 2011

ECJ (Staff Regulations) Public – Procedure – Application for review – Section 119 of the Rules of Procedure – Decision of the Tribunal – Application for review on an order striking following a withdrawal – authority of res judicata – None – Inadmissible automatically raised

Citations:

8/05, [2011] EUECJ 8/05

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 04 October 2022; Ref: scu.444619

HM Prison Service v Johnson: EAT 6 Aug 2007

EAT Disability Discrimination – Less Favourable Treatment / Reasonable Adjustments / Justification
The Claimant was a prison psychologist who developed a depressive illness amounting to a disability within the terms of the 1995 Act following, and at least partly caused by, an episode of bullying at work. After a prolonged sickness absence she was dismissed for ‘medical inefficiency’. The Tribunal found that the Prison Service had failed to make reasonable adjustments to accommodate her disability – principally by transferring her to other work – and that it had discriminated against her for reasons related to her disability in various specific respects including her dismissal.
Held that the Tribunal had misdirected itself as regards the reasonable adjustments claim by relying on Mid-Staffordshire General Hospitals NHS Trust v. Cambridge [2003] IRLR 566: which was disapproved in Tarbuck v. Sainsbury’s Supermarkets Ltd. [2006] IRLR 664. The reasonable adjustments claim would have to be remitted in respect of the earlier period of her employment; but as regards the later period, it was clear that her condition had deteriorated to a point at which it was not reasonable to expect the Service to make the proposed adjustments, notwithstanding that that deterioration may have been caused or contributed to by earlier breaches, so that the claim in respect of that period fell to be dismissed.
Held that in relation to the discrimination claims, the Tribunal had wrongly failed to consider whether the disability-related factors on which it relied were the reason for the acts complained of and that if it had directed itself correctly it could not have found that they were. Taylor v. OCS Group Ltd. [2006] ICR 1602 relied on. Other misdirections also found: Macdonald v. Ministry of Defence [2003] ICR 937 and Project Management Institute v. Latif (UKEAT/0028/07) applied.

Citations:

[2007] UKEAT 0420 – 06 – 0608, [2007] IRLR 95

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .

Cited by:

Cited – HM Land Registry v Wakefield EAT 17-Dec-2008
hmlr_wakefieldEAT2008
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
PRACTICE AND PROCEDURE: Perversity
The claimant applied for promotion to a more senior management post. He was disabled by his stammer. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.258611

Muschett v London Borough of Hounslow: EAT 6 Aug 2007

EAT Practice and procedure
Time for appealing
On hearing live evidence on appeals from decisions of the Registrar refusing extensions of time to lodge Notices of Appeal, three were dismissed and one was allowed in exceptional circumstances. These included the fact that an appeal of sorts was put in in time, the Claimant’s native Ibo (Igbo) language, difficulties in seeking legal advice, the earlier Employment Tribunal history and that it could not be said the substantive appeal had no merit.
The EAT’s practice in such cases was explained.

Citations:

[2007] UKEAT 0281 – 07 – 0608, [2009] ICR 424

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Chohan v Derby Law Centre EAT 2-Mar-2004
EAT Employment Tribunal claim brought out of time because of Solicitor’s negligent advice. Application of British Coal Corporation -v- Keeble [1999] IRLR 337. . .

Cited by:

Cited – Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 6-Dec-2010
EAT PRACTICE AND PROCEDURE
Postponement or stay
Appellate jurisdiction/reasons/Burns-Barke
Where an application is made to an Employment Tribunal for a postponement in writing and at the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.259412

Riniker v University College London: EAT 12 Dec 1995

Citations:

[1995] UKEAT 962 – 95 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Riniker v University College London EAT 5-Feb-1997
. .
See Also – Riniker v University College London CA 25-Nov-1998
. .
See Also – Riniker v University College London CA 31-Mar-1999
The writ office of the High Court unjustifiably rejected a writ which the plaintiff asked to be issued and did not issue it until the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be . .
See Also – Riniker v University College London EAT 23-Aug-1999
EAT Contract of Employment – Breach of Contract
EAT Contract of Employment – Breach of Contract. . .
See also – Riniker v University College London (Practice Note) CA 5-Apr-2001
The Employment Appeal Tribunal does not have jurisdiction to hear an appeal which does not set out to disturb any part of the order made by the original tribunal. There is no inherent power in the Court of Appeal to bypass the prohibition in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.209603

London Borough of Merton v Thomas: EAT 3 May 2002

EAT Jurisdiction
EAT Contract of Employment – Written particulars.

Judges:

His Hon Judge J R Reid QC

Citations:

[2002] UKEAT 0301 – 01 – 0305, EAT/0301/01

Links:

Bailii, EAT, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Thomas v Merton Racial Equality Council EAT 24-Mar-1999
. .
See Also – London Borough of Merton v Thomas EAT 27-Mar-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.202855