EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

His Honour Judge Collins Cbe

Citations:

EAT/636/99, [2000] UKEAT 636 – 99 – 0803

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.171771

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal.

Judges:

His Hon Judge Clark

Citations:

EAT/343/01, [2002] UKEAT 0343 – 01 – 0803

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

Cited – Warner v Armfield Retail and Leisure Ltd (Contract of Employment : Frustration) EAT 8-Oct-2013
EAT CONTRACT OF EMPLOYMENT – Frustration
DISABILITY DISCRIMINATION – Disability related discrimination
For the purposes of claims of unfair dismissal and breach of contract the Respondent argued, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.172143

EAT Contract of Employment – Breach of Contract

Judges:

The Honourable Mr Justice Morison (P)

Citations:

EAT/141/99, [1999] UKEAT 141 – 99 – 2911, [2000] ICR 215

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Costain Building and Civil Engineering v Smith and Another EAT 5-May-1999
This case raises a question as to whether an agency worker engaged in the construction industry was an employee of the building contractor. . .

Cited by:

Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.171719

Application for an urgent interim injunction made by the claimant against the defendant trade union to restrain industrial action: that is a strike.

Judges:

Singh J

Citations:

[2014] EWHC 4208 (QB), [2015] IRLR 96

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.553272

The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian head teacher; and that the Council, ‘deliberately and unlawfully endorsed a targeted campaign of discrimination, bullying and harassment and victimisation against her to remove her as head of Moorlands Primary School. The Employment tribunal rejected her claims of unfair dismissal and race discrimination. She now appealed against being not allowed to complain of what she said had been pressure put on another member of staff to make a statement against her.
Held: There is no immunity behind which the Council could shelter. The allegation in support of the unfair dismissal claim was not excluded by the immunity principle, since the complaint was not made of the words of the statement themselves but of the manner in which the council had acted in order to procure that it be made. There is no common law duty of care owed by one party to litigation to his opponent. Two principles clashed: the principle that a wrong should not be without a remedy, and the principle that those involved in the judicial process should be immune from civil suit for what they do or say in the course of the litigation. The latter principle is known as ‘judicial proceedings immunity’.
In summary: i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;
ii) The core immunity also comprises statements of case and other documents placed before the court;
iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;
iv) Whether something is necessary is to be decided by reference to what is practically necessary;
v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity;
vi) In such cases the principle that a wrong should not be without a remedy prevails.

Judges:

Maurice Kay VP CA, Lewison, Gloster LJJ

Citations:

[2013] EWCA Civ 909, [2013] IRLR 820, [2013] WLR(D) 306, [2013] 1 WLR 3052, [2013] ICR 1158, [2013] CP Rep 46

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Cutler v Dixon KBD 1585
‘It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he . .
Appeal from – Singh v Reading Borough Council EAT 12-Feb-2013
EAT UNFAIR DISMISSAL – Constructive unfair and discriminatory dismissal
RACE DISCRIMINATION
PRACTICE AND PROCEDURE – Judicial proceedings immunity
The Claimant headteacher is alleging in . .
Cited – Dawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and . .
Cited – Munster v Lamb CA 1883
Judges and witness, including police officers are given immunity from suit in defamation in court proceedings.
Fry LJ said: ‘Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences . .
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – Cabassi v Vila 12-Dec-1940
High Court of Australia – The claim sought to sidestep the rule giving immuity to witnesses before a court by alleging a conspiracy to give false evidence.
Held: Starke J said: ‘But it does not matter whether the action is framed as an action . .
Cited – Marrinan v Vibert CA 2-Jan-1963
A tortious conspiracy was alleged in the conduct of a civil action. The plaintiff appealed against rejection of his claim.
Held: The appeal failed as an attempt to circumvent the immunity of a wirness in defamation by framing a claim in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Flower v Lloyd CA 11-Jun-1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Lincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
Cited – Marrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Surzur Overseas Ltd v Koros and others CA 25-Feb-1999
A defendant to a worldwide Mareva injunction had failed to give full disclosure of all his assets in an affidavit filed with the court. False evidence as to sale of the assets in question was later manufactured and placed before the court. The . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Cited – Sir William Jaffray and others v The Society of Lloyds CA 20-Jun-2007
The appellant sought to re-open a decision of the Court of Appeal saying that fresh evidence had emerged which he said demonstrated that Lloyd’s had misled the court at first instance. . .
Cited – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
Cited – Cinpres Gas Injection Ltd v Melea Ltd CA 24-Jan-2008
A final judgment may be impugned for fraud. . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Parmar v East Leicester Medical Practice EAT 5-Nov-2010
EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Whether the statutory grievance procedure applies to a claim of post-termination victimisation. It does.
A claim alleging victimisation . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Smart v The Forensic Science Service Ltd CA 2-Jul-2013
On a search of his house, the police found a bullet cartridge on the claimant’s property. It was sent for testing but due to a mistake it was reported as a live cartridge. The prosecution was only dropped after some months when the mistake was . .

Cited by:

Cited – Crawford v Jenkins CA 24-Jul-2014
The parties had divorced but acrimony continued. H now complained of his arrests after allegations from his former wife that he had breached two orders. He had been released and no charges followed. The court had ruled that W’s complaints were . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.513706

EAT Unfair Dismissal : Constructive Dismissal – The majority in the Employment Tribunal had directed themselves correctly in terms of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 and Bournemouth University v Buckland [2009] ICR 1042 (EAT) and [2010] ICR 211 (CA). The appeal and cross appeal were dismissed.

Judges:

Hand QC J

Citations:

[2010] UKEAT 0135 – 10 – 2607

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442201

EAT UNLAWFUL DEDUCTION FROM WAGES
The Claimants made claims against their employer for an unlawful deduction from their wages contrary to the provisions of section 13 of the Employment Rights Act 1996, in respect of money due under its bonus scheme for the years 2009 and 2010. The Claimants had been dismissed by reason of gross misconduct by the end of April 2010. The Employment Tribunal held that because the Claimants had been dismissed by reason of gross misconduct they were not entitled to receive their bonuses.
The Claimants appealed.
Held:
Dismissing the appeal because: –
1. A decision to pay or not to pay a bonus does not constitute ‘a deduction from wages’ so as to engage the consent provisions in section 13 (1) of the Employment Rights Act 1996 (‘ERA’);
2. For there to be a deduction for the purposes of section 13 (3) of the ERA, there has to be a sum to which an employee has some legal but not necessarily contractual entitlement from which the deduction could be made;
3. There is therefore an exercise which has to be completed before section 13(1) and (2) could apply with the preliminary stage being considering whether there is a sum legally payable in accordance with section 13(3) and it is only if the answer is in the affirmative that there has to be a consideration as to whether there is a deduction from that sum so as to invoke sub-sections (1) and (2) of section 13;
4. The defendant’s bonus schemes for 2009 and 2010 did not amount to a variation of contract so as to engage section 13(5) ERA; and
5. The Claimants were not entitled to their bonuses for 2009 and 2010 and there had been no deduction of their wages.

Judges:

Silber J

Citations:

[2011] UKEAT 0084 – 11 – 2507

Links:

Bailii

Statutes:

Employment Rights Act 1996 13

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442200

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0061 – 10 – 1606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442199

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Employment Judge, while rejecting a complaint of bias, ordered that a fresh panel be convened to continue the hearing of a case. Her decision did not take into account guidance in Ansar v Lloyds TSB Bank [2006] ICR 1565 (EAT), [2007] IRLR 211 (CA) and Peter Simper and Co Limited v Cooke (No 1) [1984] ICR 6. Decision set aside.

Judges:

Richardson J

Citations:

[2011] UKEAT 0308 – 11 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Triodos Bank Nv v Dobbs and Another ChD 8-Feb-2005
. .
Cited – Ansar v Lloyds TSB Bank Plc and others CA 9-Oct-2006
The claimant challenged a decision of the chairman of the Employment tribunal not to recuse himself on a later hearing after the claimant had previously made allegations of bias and improper conduct against him. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.442178

EAT UNFAIR DISMISSAL – Constructive dismissal
The Claimant considered that she was treated in a way which was in fundamental breach of her contract of employment. She invoked the grievance procedure, which resulted in a decision adverse to her on 13 February 2009 but she only resigned by a letter dated 24 March 2009. The Employment Tribunal held that the Respondent had repudiated the contract of employment but that the Claimant had affirmed the contract by her delay.
The Claimant appealed.
Held:-
The appeal was dismissed because the Employment Tribunal was entitled to hold that the Claimant had affirmed the contract. W E Cox Toner (International) Ltd v Crook [1981] IRLR 447 applied.

Judges:

Silber J

Citations:

[2011] UKEAT 0513 – 10 – 2207

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – W E Cox Toner (International) Ltd v Crook EAT 1981
In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.442176

Employer’s appeal against finding of unlawful deduction of wages.

Judges:

Lord Johnston

Citations:

EAT/1377/00, [2001] UKEAT 1377 – 00 – 2404, [2001] IRLR 588

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442035

EAT PRACTICE AND PROCEDURE
Striking-out/dismissal
Imposition of deposit
Exercise of strike-out powers under ET Rule 18(7) at PHR. Principles considered. Strike-out orders set aside; additional scope of deposit order determined on appeal.

Judges:

Peter Clarke J

Citations:

[2011] UKEAT 0449 – 10 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442031

Appeal at the instance of the employee applicant in respect of a finding by the Employment Tribunal confirmed on review that in the relevant circumstances the respondent employer was not in breach of section 1(1) of the National Minimum Wage Act 1998 nor had they made any unlawful deductions from the applicant’s wages in contravention of section 13(1) of the Employment Rights Act 1996.

Judges:

Lord Johnston

Citations:

[2001] UKEAT 843 – 00 – 1801, [2001] IRLR 591

Links:

Bailii

Statutes:

National Minimum Wage Act 1998 1(1), Employment Rights Act 1996 13(1)

Employment

Updated: 16 September 2022; Ref: scu.442033

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
VICTIMISATION DISCRIMINATION – Protected disclosure
The ET erred in holding that the Appellant lecturer was fairly dismissed for misconduct in refusing to undertake duties which the Respondent required her to undertake. The ET failed to consider whether the employer had conducted a proper investigation into the agreement reached as to those duties when the Appellant moved to a new academic department. That failure undermined not only their decision as to whether the employer had conducted a reasonable investigation into the misconduct alleged but also their conclusion as to whether dismissal for refusing to carry out certain duties was within the range of reasonable responses.
Case remitted to determine the fairness of dismissal under the Employment Rights Act 1996 section 98(4). Appeal from dismissal of the Appellant’s claim under the Employment Rights Act 1996 section 47B(1) dismissed. Cross-appeal from the finding that breach of grievance procedure was a fundamental breach of contract allowed.
Unfair dismissal claim remitted to an Employment Tribunal to determine the fairness of the Appellant’s dismissal under the Employment Rights Act 1996.

Judges:

Slade J

Citations:

[2011] UKEAT 0364 – 10 – 2107

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(4) 47B(1)

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442030

EAT REDUNDANCY – Suitable alternative employment
The employee was dismissed for redundancy, but she did not receive a redundancy payment on the ground that she had unreasonably refused offers of suitable alternative posts. In determining that one of the posts was suitable for her, the Tribunal was held to have failed to take into account two features of the evidence which were relevant to whether the post was suitable for her. In determining that the employee had unreasonably refused the offer of that post, the Tribunal was held to have substituted its own view about the reasonableness of the reasons for her refusal, rather than considering whether someone in her particular circumstances could reasonably have taken the view of the alternative post which she did.

Judges:

Keith J

Citations:

[2011] UKEAT 0074 – 11 – 2107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.442029

EAT TRANSFER OF UNDERTAKINGS – Service provision change
The Employment Tribunal was entitled to find that there was no TUPE transfer (whether a transfer of undertaking or a service provision change) where residents of a care home operated by an NHS Trust were rehoused in individual homes; and the Claimant care workers, formerly employed by the NHS Trust at the care home, were then offered employment by the Second or Third Respondents, in most cases to sleep in at the service users’ homes. The economic entity did not retain its identity, and the services provided were not fundamentally or essentially the same after the change as they had been before.

Judges:

Bean J

Citations:

[2011] UKEAT 0037 – 11 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441971

EAT JURISDICTIONAL POINTS – Worker, employee or neither
Employment Judge wrongly held that claimant could not as a matter of law be party to a contract, either of service or for services, in circumstances where the amount of his remuneration had not been agreed – Way v Latilla and Currencies Direct Ltd v Ellis referred to.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0527 – 10 – 0807

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Way v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
Cited – Currencies Direct Ltd v Ellis QBD 19-Oct-2001
The fact that a loan to a director was unlawful did not prevent a company seeking to recover or enforce the loan. A transaction made in contravention of section 330 was voidable at the instance of the company. The implication of section 341 was that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.441844

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge did not err in striking out the Claimant’s case which had not been actively pursued over six years, correctly applying Peixoto and distinguishing Abegaze.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 1807 – 10 – 1506

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441838

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Tribunal found to have erred in law in holding that Claimant, who was employed as a police training officer and had withheld information relating to the whereabouts of a known sex offender (his brother – in respect of whom a warrant for arrest had been issued), was unfairly dismissed:
(i) they had proceeded on the basis that, because the Claimant was employed by Strathclyde Joint Police Board, he owed no duties to Strathclyde Police Force, whereas the terms of the Police (Scotland) Act 1967 plainly show that he did;
(ii) applying the second part of the Burchell test, they had found that the Respondent had no reasonable grounds for its belief that the Claimant had committed an act of misconduct but their basis for that was that he was under no duty to provide information about his brother’s whereabouts to the police and that was erroneous; he was, plainly, in the circumstances, under such a duty and the findings in fact showed that the Respondent had reasonable grounds for their belief.
Appeal upheld and finding of fair dismissal substituted.

Judges:

Smith J

Citations:

[2011] UKEAT 0060 – 10 – 1506

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441836

EAT UNFAIR DISMISSAL – Constructive dismissal
Claimant employed as football coach and was appointed manager/head coach of U19’s team. He was told, without any discussion or consultation, that the subsequently appointed Academy Director would be responsible for picking the U19 team, a matter which would also have had significant consequential effects on the Claimant’s role. The Claimant having resigned as a result, claimed unfair constructive dismissal. Employment Tribunal held by the EAT to have erred in law in dismissing his claim. They had no basis to imply a term into the Claimant’s contract regarding the handover of responsibility to the Academy Director, the Tribunal had erred in their conclusion that the lack of consultation was not a breach of the implied term of trust and confidence because an ‘autocratic style of management’ was the norm in the football world and, on the evidence, it was plain that the Claimant had resigned not only because of the removal of important aspects to his managerial role but because of the manner in which it was done. Finding of unfair constructive dismissal substituted and the claim remitted to a freshly constituted Employment Tribunal for assessment of compensation.

Citations:

[2011] UKEAT 0058 – 10 – 1706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441835

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
At a preliminary hearing at which the claim was struck out, the Employment tribunal judge had erred in acting upon factual conclusions going beyond those admitted by the parties.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0065 – 10 – 2705

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Tayside Public Transportcompany Ltd (T/A Travel Dundee) v Reilly SCS 30-May-2012
The respondent bus driver had claimed unfair dismissal following an accident. The Employment Tribunal struck out his case as having no reasonable prospect of success, but the case had been re-instated by the EAT.
Held: the power given in the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.441832

EAT PRACTICE AND PROCEDURE – Striking out
Employment Judge entitled to strike out claims by claimant who had demonstrated by her disregard for tribunal orders and the allegations made in correspondence against the respondents, their solicitors and the Tribunal (and indeed her own former solicitors) that she was incapable of bringing her complaints to a fair and orderly trial

Judges:

Underhill P J

Citations:

[2011] UKEAT 0605 – 10 – 1407

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441841

EAT UNFAIR DISMISSAL – Retirement
UNFAIR DISMISSAL – Polkey deduction
Employee reaching retirement age requests extension – Employer purports to follow procedure under Schedule 6 of Employment Equality (Age) Regulations 2006 and rejects request – Tribunal holds, on basis of admissions from employer’s witnesses, that the managers in question regarded themselves as absolutely bound by a company policy against granting extensions; that accordingly his request had not been genuinely ‘considered’ as required by para. 6 of Schedule 6; and that the dismissal was thus unfair – No ‘Polkey deduction’ made
HELD, dismissing the appeal,
(1) Consideration of a request under Schedule 6 did indeed have to be genuine (or ‘in good faith’), notwithstanding the generally limited nature of the relevant obligations;
(2) Although a tribunal should in assessing a case of a dismissal which is unfair by reason of section 98ZG (2) of the Employment Rights Act 1996 ‘apply Polkey’ if the issue is raised, it had not been raised in the present case.

Judges:

Underhilll P J

Citations:

[2011] UKEAT 0484 – 10 – 1407

Links:

Bailii

Statutes:

Employment Rights Act 1996, Employment Equality (Age) Regulations 2006

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441840

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Polkey deduction
Redundancy dismissal. Pool of two trainees. Tribunal erred in failing to recognise that, on their findings in fact, they required to make a Polkey deduction. Reduction of 35% substituted by EAT.

Citations:

[2011] UKEAT 0064 – 10 – 1406

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441839

EAT UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Perversity
Finding of fact contrary to agreed evidence leading to Employment Tribunal preferring Claimant’s evidence to that of Respondent on central factual issue on which finding of constructive unfair dismissal.
Applying Piggott v Jackson, per Lord Donaldson MR, [1992] ICR 85, 92D, appeal allowed and case remitted to fresh Employment Tribunal for re-hearing.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0028 – 11 – 1006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Piggott Brothers and Co Ltd v Jackson CA 1992
The court asked under what circumstances an appellate court could interfere with the decision of a lower court in employment cases: ‘What matters is whether the decision under appeal was a permissible option. To answer that question in the negative . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.441837

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Conduct unfair dismissal. Clear case of Employment Tribunal substituting their view for that of employer (despite self-direction not to do so). Employer appeal against finding of unfair dismissal allowed. Claim dismissed. No remission necessary.

Citations:

[2011] UKEAT 0610 – 10 – 0306

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441834

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
JURISDICTIONAL POINTS – Extension of time: just and equitable.
In a disability discrimination failure to make reasonable adjustments claim the Respondent contended that the ET1 was presented out of time. Questions of continuing act and just and equitable extension were always going to be in issue. There was no challenge to the Employment Tribunal’s (‘ET’) finding as to when the primary limitation period started to run. The ET held that part of the delay in presenting an ET1 after the expiry of that period was excusable but held that a letter under the name of the Appellant but probably written by her Trade Union representative in which she raised a complaint under the DDA marked the end of the period of excusable delay. It was not just and equitable to extend the period to the date of presentation of the ET1. It was contended on behalf of the Appellant that the ET erred in law in not drawing the parties’ attention to the fact that they were proposing to hold that the period of excusable delay ended just prior to the date of the letter. The EAT drew the parties’ attention to Stanley Cole (Wainfleet) Ltd v Sheridan [2003] ICR 297. In this case the parties made submissions on whether there should be a just and equitable extension and should have been be prepared to do so in respect of the entirety of the period of delay. The three points which Mr MacKenzie on behalf of the Appellant would have brought to the ET’s attention would have made no difference to the outcome. There was no error of law in the ET failing to draw to the parties’ attention the significance they were to attach to the letter. In any event applying Stanley Cole a failure to do so did not cause substantial prejudice. Appeal dismissed.

Judges:

Slade J

Citations:

[2011] UKEAT 0005 – 11 – 0605

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.441831

EAT Disability Discrimination – Compensation
EAT Disability Discrimination – Compensation.
EAT Procedural Issues – Employment Tribunal.

Judges:

The Honourable Lord Johnston

Citations:

EATS/0023/02, EATS/0022/02, [2002] UKEAT 0022 – 02 – 1312

Links:

EAT, EAT, EATn, Bailii

Jurisdiction:

Scotland

Citing:

See Also – Cosgrove v Messrs Caesar and Howie EAT 17-May-2001
EAT Contract of Employment – Written particulars.
Appeal against dismissal of unfair dismissal and disability discrimination claims. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 September 2022; Ref: scu.439864

EAT EQUAL PAY ACT
Material factor defence
European law
Certain employees of the Council claimed equal pay with respect to their chosen comparators. In some cases the claim related to a period before a new job evaluation scheme had been introduced. As part of the implementation of the job evaluation scheme, the employers introduced a protected pay arrangement designed to cushion those in receipt of higher pay when the new scheme was introduced from suffering an immediate and significant drop in pay as a result of the operation of the scheme. The claimants submitted that they should also receive the benefits of the protected pay arrangements, even though they were not in receipt of the higher pay when the scheme was introduced, because they would have received it had the equality clause been applied to them at the right time. The Employment Tribunal acceded to that argument and rejected the Council’s justification defence. The EAT upheld the Council’s appeal and found justification established.
There were two further categories of claim in which the Council contended that the difference in pay was caused by a non-sex tainted collective bargaining. The Employment Tribunal rejected that claim, and the EAT rejected the appeal.
Observations on the circumstances in which prima facie indirect discrimination arises, so as to trigger the need to establish objective justification.

Judges:

Elias P J

Citations:

[2007] UKEAT 0077 – 07 – 1707, [2007] ICR 1644, [2007] IRLR 869

Links:

Bailii

Statutes:

Equal Pay Act 1970 2A(4)

Jurisdiction:

England and Wales

Citing:

Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:

See Also – Middlesbrough Borough Council v Surtees and others EAT 24-Aug-2007
EAT Equal Pay Act – Equal value
When an Independent Expert has been appointed by an Employment Tribunal to report on an equal value question, rule 11(4) of Sched 6 to Employment Tribunal Regulations 2004 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.254592

Claim for damages for negligent employment reference.

Citations:

[2001] EWCA Civ 1798

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.218400

Citations:

[2001] UKEAT 928 – 01 – 0512

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Phillip Pennant v IPC Magazines Limited Nigel Clout EAT 20-Dec-2001
EAT Race Discrimination – Direct . .

Cited by:

See Also – Phillip Pennant v IPC Magazines Limited Nigel Clout EAT 20-Dec-2001
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.204628

Citations:

[2001] UKEAT 0808 – 00 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 September 2022; Ref: scu.203614

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 his position as a Senior Finance Officer (grade PO1) because the Council failed to utilise fair procedures when selecting him for redundancy, and that he was not selected for redundancy because of his trade union activities, nor was he subjected to any detriment falling short of dismissal because of those activities.

Judges:

His Hon Judge J R Reid QC

Citations:

[2003] EAT 0186 – 03 – 1807, [2003] UKEAT 0186 – 03 – 1807, EAT/186/03

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Aniagwu v London Borough of Hackney and Another EAT 11-Feb-1998
Appeal from refusal of jurisdiction . .
See Also – Aniagwu v London Borough of Hackney and Another EAT 2-Sep-1998
. .
See Also – Aniagwu v London Borough of Hackney EAT 21-Jul-2000
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.189520

EAT Contract of Employment – Definition of Employee

Judges:

The Honourable Mr Justice Burton (P)

Citations:

EAT/492/02, [2002] UKEAT 492 – 02 – 1112

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Market Investigations v Minister of Social Security 1969
One way of deciding whether a person is self employed is to ask whether he can be said to be running a business of his own. Different tests may have to be combined to produce an overall answer.
Cooke J said: ‘The fundamental test to be applied . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .

Cited by:

Appeal from – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.179949

EAT Jurisdiction – Whether the Tribunal had given sufficient reasons for their finding that the claimant had been disabled.

Judges:

His Hon Judge Clark

Citations:

EAT/1043/01, [2002] UKEAT 1043 – 01 – 1510

Links:

Bailii, EAT

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Citing:

See also – Fyffes Group Ltd v Bazley EAT 22-Mar-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 September 2022; Ref: scu.178532

EAT JURISDICTIONAL POINTS
Two domestic workers, employed one after the other by the First Respondent, a diplomat, and Second Respondent, his wife, (the appellants in this appeal) asserted they had been denied their contractually agreed or minimum wages, and had been discriminated against because of their race. They said they had been trafficked. The Respondents claimed diplomatic immunity. The ET held that the restriction of the plea of diplomatic immunity in the Vienna Convention, where a diplomat had engaged in commercial activity outside his official functions, applied. Although the employment of domestic staff was not on the face of it commercial activity, to claim immunity operated as a procedural bar which represented a disproportionate interference with the Claimants’ right to access a court, contrary to Art. 6 ECHR. Accordingly, ‘commercial activity’ was to be interpreted under s.3 HRA as including the employment of such staff as the Claimants.
In reaching her decision, the judge relied on recent Strasbourg authority which concerned State rather than diplomatic immunity. That had in turn been heavily influenced by an international Convention of 2004, relating to State but not diplomatic immunity. She had failed accurately to identify and express the underlying rationale for the plea of diplomatic immunity; had wrongly considered that the seriousness of the claims was relevant in considering proportionality; and wrongly concluded that the plea of immunity should not be respected. The appeal was allowed.
A further appeal, against a conclusion that the Respondents had been validly served, was rejected, as was a cross-appeal arguing that for an ET to permit a plea of diplomatic immunity to be raised in a potential case relating to trafficked individuals would be in breach of Art. 4 ECHR.
Permission to appeal was granted, since there is apparently no decided case which has yet considered whether the previous approach to diplomatic immunity should be modified in respect of employment claims in the same way as has occurred where State immunity is claimed.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0403 – 12 – 0410, [2014] ICR 135, [2013] IRLR 929

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
At EAT – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 September 2022; Ref: scu.516755

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Relief from sanctions was given under PD16 and CPR3.9 when evidence in support of a response, but not a draft ET3 response form, was filed in time. The point on diplomatic immunity could not be said to be without merit. Roberts v Carling and Aziz applied.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 1819 – 10 – 0208

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Abusabib and Another v Taddese EAT 20-Dec-2012
EAT Jurisdictional Points : State Immunity – Diplomatic Immunity
The First Respondent, who had been found liable together with the Second Respondent for acts of discrimination against the Claimant in a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 September 2022; Ref: scu.443642

EAT PRACTICE AND PROCEDURE
Parties
Right to be heard
In substance the Tribunal’s judgment made the Appellant a party for the first time and proceeded immediately to determine the proceedings against her without her having any opportunity to make submissions as to whether she should be a party or as to the merits of the claim against her. This was an error of law.

Judges:

Richardson J

Citations:

[2011] UKEAT 0541 – 10 – 0704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441347

EAT REDUNDANCY – Fairness
CONTRACT OF EMPLOYMENT – Notice and pay in lieu
Employee entitled to three months notice of dismissal. Dismissed for redundancy with four days notice. Letter of dismissal states that payment will be made of statutory redundancy pay, holiday pay, and an ‘ex gratia’ payment of a sum equivalent to three months’ gross salary. Claim by employee for damages for dismissal without notice. Employer seeking to meet the claim by reference to the ‘ex gratia payment’. Employment Tribunal allows the employee’s claim. On a correct construction, the payment was truly ‘ex gratia’. Appeal dismissed and Tribunal’s construction upheld.’

Judges:

Luba QC R

Citations:

[2011] UKEAT 0430 – 10 – 2705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441352

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
A teacher already on formal written warning for misconduct was dismissed for making a racist joke in hearing of staff and pupils. The Employment Tribunal upheld his unfair dismissal complaint on the basis that (a) there were no genuine grounds for belief of misconduct (despite direct evidence of more than one witness); (b) no adequate investigation (because employer did not interview pupils); and (c) dismissal outside range of reasonable responses. Appeal allowed. Plain case of Employment Tribunal substituting its own view and misdirecting itself about burden of proof. Remitted to different Tribunal.

Judges:

Luba QC R

Citations:

[2011] UKEAT 0582 – 10 – 1904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441346

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Although this was a ‘narrative’ judgment sufficient substance could be extracted from the decision to demonstrate compliance with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No. 1861; Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240, [2007] IRLR 63, Greenwood v NWF Retail Ltd UKEAT/0409/09 and Jones v The City and County of Swansea UKEAT/0090/10 considered and applied; Short v Hayman UKEAT/0379/08/CEA not followed.
Rule 30(6) is a rule concerned with the reasoning as to relevant material (i.e. issues and evidence) and the failure to deal with all points raised will not necessarily amount to a breach of rule 30(6); only relevant points need be dealt with. Where, however, as here, relevant matters requiring findings of fact have not been dealt with, the only course is for that matter to be remitted. Consequently, two discrete allegations were remitted as well as the question as to whether or not there should be a declaration in the Part 1 Claim and an award under section 38 of the Employment Act 2002, which was an issue depending on the findings made in relation to the other matters remitted.

Judges:

Hand QC J

Citations:

[2010] UKEAT 0388 – 09 – 2806

Links:

Bailii

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 30(6)

Jurisdiction:

England and Wales

Citing:

Cited – Balfour Beatty Power Networks Ltd Interserve Industrial Services Ltd v C Wilcox and 6 others A Seymour and 18 others I M Realisation Ltd (In Administration) EAT 2-Nov-2005
EAT Transfer of Undertakings: Consultation and Other Information; Transfer
Practice and Procedure: Appellate Jurisdiction
Nature of ‘undertaking’ for the purposes of TUPE: could there be a stable . .
Cited – Greenwood v NWF Retail Ltd EAT 18-Feb-2011
EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
An Employment Tribunal decision must comply in both form and substance with 30(6) of the Employment Tribunals (Constitution and Rules . .
Cited – Joes v The City and County of Swansea EAT 5-May-2011
EAT UNFAIR DISMISSAL – Compensation
The decisions to apportion compensation, not to award any future loss after April 2008 and to apply an ‘uplift’ of 25% in respect of breach of statutory procedures were . .
Not Followed – Short (Appeal No 2) v P J Hayman and Co Ltd EAT 7-Dec-2009
EAT PRACTICE AND PROCEDURE
Appellate jurisdiction /reasons/Burns-Barke
Perversity
The Employment Tribunal failed to include in its written reasons a number of matters including a concise statement . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 September 2022; Ref: scu.441354

EAT PRACTICE AND PROCEDURE – Preliminary issues
JURISDICTIONAL POINTS – Claim in time and effective date of termination
Employment Tribunal declared that it had jurisdiction to consider a claim for unfair dismissal, rejecting arguments that time grounds excluded it. On review, it upheld this decision. A decision was made under rule 28 ET Procedure Rules. A subsequent Employment Judge, due to hear the substantive claim on its merits, reconsidered the question of jurisdiction and concluded there was none. An appeal to the effect that the second EJ had no jurisdiction to determine the question of jurisdiction on time grounds (it having already been decided) was allowed.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0054 – 11 – 2505

Links:

Bailii

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 24

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441349

EAT CONTRACT OF EMPLOYMENT – Implied term/ variation/construction of term
UNLAWFUL DEDUCTION FROM WAGES
Agreement between drivers as employer provided that time for breaks should be calculated by reference to planned hours rather than hours actually worked. The Employment Tribunal held that drivers’ breaks should be calculated more by reference to hours worked. Employment Tribunal construction flawed. Appeal allowed.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0030 – 11 – 1705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441350

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Agency relationships
The Claimants were not employees of Respondent 4, on its insolvency the Secretary of State had no liability to them under s.182-188 of the Employment Rights Act 1996.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0571 – 10 – 1705

Links:

Bailii

Statutes:

Employment Rights Act 1996 182

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441353

EAT HARRASSMENT – Conduct
Claimant social worker employed in a home for troubled children – Tribunal entitled on the facts to find employer liable for racial harassment and racial discrimination on basis that it had not done enough to protect Claimant from harassment and discrimination by one of the children – Discussion of legal basis for such a finding: R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] ICR 1234 and Conteh v Parking Partners Ltd. [2011] ICR 341 considered

Judges:

Underhill P J

Citations:

[2011] UKEAT 0497 – 10 – 1406

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441172

EAT UNFAIR DISMISSAL – Automatically unfair reasons
Unfair dismissal – automatically unfair reasons – health and safety cases.
Section 100(1)(e) should be applied in two stages.
Firstly, the Tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged.
Secondly, if the criteria are made out, the Tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.
The mere fact that an employer disagreed with an employee as to whether there were (for example) circumstances of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that an employee should be protected from dismissal if he took or proposed to take steps falling within section 100(1)(e). Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683 considered.
The EAT proposed a two-stage test in claims under section 100(1)(e): ‘Firstly, the tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or . . did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, s.100(1)(e) is not engaged.
Secondly, if the criteria are made out, the tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.’

Judges:

Richardson J

Citations:

[2011] UKEAT 0566 – 10 – 2206, [2011] ICR 1406, [2011] IRLR 730

Links:

Bailii

Statutes:

Employment Rights Act 1996 100(1)(e)

Jurisdiction:

England and Wales

Cited by:

Cited – B v John Reid and Sons (Strucsteel) Ltd EAT 21-May-2015
EAT Unfair Dismissal: Automatically Unfair Reasons – Automatic Unfair Dismissal – Section 100(1)(e) Employment Rights Act 1996 – Applying the two-stage approach laid down by the EAT in Oudahar v Esporta Group Ltd . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 September 2022; Ref: scu.441169

EAT REDUNDANCY – Collective consultation and information
Collective consultation in a redundancy situation. Meaning of ‘election’ and ‘elected’ in Trade Union and Labour Relations (Consolidation) Act 1992 sections 188 and 188A. In this case, the number of candidates precisely matched the number of available places for elected employee representatives. The employer treated them as ‘elected’. The Employment Tribunal decided that was correct and rejected a claim for a protected award under section 189. Appeal dismissed. Despite the absence of a ballot, the representatives were ‘elected’ when they were the only nominees and filled all the available places. The statute did not require a ballot in an uncontested election.

Citations:

[2011] UKEAT 0244 – 10 – 1706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.441170

EAT PRACTICE AND PROCEDURE: Absence of party
Employment Tribunal proceeding in absence of a party. Representative had put wrong hearing date in her diary. Review application dismissed.
Appeal allowed by a majority and case remitted for rehearing. Scope of remission circumscribed by guidance as to points of law arising in the case.

Citations:

[2009] UKEAT 0104 – 09 – 0910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 September 2022; Ref: scu.375964

Time Limits – Reasonably practicability
Unfair Dismissal – Exclusions including worker/jurisdiction
Claim for unfair dismissal presented by e-mail 88 seconds outside the prescribed three-month period. Employment Tribunal held that it was ‘reasonably practicable’ to present claim in time as although the Claimant knew on 5 May 2006 that the three month period expired on 6 May 2006, he misread the e-mail address of place to which the claim form had to be sent and sent it at 23.44 on 6 May 2006 to ‘qsi’ and not to the correct address which was ‘gsi’. The claim form was returned to the Claimant at 23.45 and he sent test message (rather than the claim form) to the correct address at 23.57 on 6 May 2006. The Claimant then sent the claim form to the correct address so that it arrived at 00.01and 28 seconds on 7 May 2006 and so it was late.
Issue on appeal was whether the Employment Tribunal had considered all relevant matters relevant to reasonable practicability.
Held: Employment Tribunal had considered the reasonable practicability issue properly taking into account all relevant matters; it had considered whether the Claimant knew of the three month period, the steps taken by him to ensure that claim was brought in time and the impediments preventing him from bringing the claim within the prescribed three month period.

Judges:

Silber J

Citations:

[2007] UKEAT 0626 – 06 – 0608

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 September 2022; Ref: scu.258609

Application for permission to appeal

Citations:

[2001] EWCA Civ 657

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 September 2022; Ref: scu.218196

Citations:

[2001] EWCA Civ 737

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 September 2022; Ref: scu.218137

Citations:

[2002] EWCA Civ 361

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 September 2022; Ref: scu.216982

PC Mauritius

Citations:

Appeal No 25 of 1998, [2000] UKPC 28

Links:

Bailii, PC, PC

Jurisdiction:

Commonwealth

Employment

Updated: 14 September 2022; Ref: scu.174665

Judges:

Eady J

Citations:

[2020] EWHC 3412 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.656926

Appeal – Article 181 of the Rules of Procedure of the Court – Public service contracts – Negotiated tender procedure for the conclusion of framework contracts for the translation of legal texts – Exclusion of a proposed subcontractor – Professional capacity – Requirement of a complete legal education – Recognition of diplomas

Citations:

C-590/15, [2016] EUECJ C-590/15 – CO, ECLI: EU: C: 2016: 872

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 13 September 2022; Ref: scu.571868

EAT PRACTICE AND PROCEDURE
Review
Striking-out/dismissal
New evidence on appeal
Substantive claims dismissed without a successful appeal against that ET Judgment. Review application out of time and without merit. Second claim, re-litigating the first, properly struck out. Application to admit unredacted documents available at original ET hearing refused.

Judges:

Peter Clarke J

Citations:

[2011] UKEAT 0612 – 10 – 0505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441166

EAT PRACTICE AND PROCEDURE – Review
The Employment Tribunal had erred by considering the application for review only in terms of new evidence pursuant to rule 34(3)(d). Although the refusal of the application for review could not have succeeded on that basis, the interests of justice were also engaged and the Employment Tribunal should have considered the point being made by the Appellant that there was now evidence that the email in question must have been manipulated. The Employment Appeal Tribunal had all the material needed and rather than remit the matter ordered there to be a review.

Judges:

Hand QC J

Citations:

[2011] UKEAT 0424 – 10 – 1905

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441161

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
AGE DISCRIMINATION
Dismissal of employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65, said to be unfair and to constitute age discrimination because employer had failed, in its purported retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996, to specify the retirement date: it had said that he would be retired ‘after’ his 65th birthday.
Held that ‘after’ did not always mean ‘on a date later than’ and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later) – On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0609 – 10 – 1205

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 1996

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441162

EAT PRACTICE AND PROCEDURE – Costs
Tribunal wrong to make a wasted costs order because it did not properly address the Appellant’s case that he was not acting in pursuit of profit within the meaning of rule 48 (4); and on evidence heard by the EAT he in fact was not so acting – Observations on the question of the stage at which wasted costs applications should be heard.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0402 – 09 – 0806

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441168

EAT REDUNDANCY
Collective consultation and information
Protective award
Where an individual claimant seeks a protective award under s188-189 TULRCA the Employment Tribunal only has jurisdiction to make an award in his favour and cannot make an award that benefits other redundant employees.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0051 – 11 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441152

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Reinstatement/Re-engagement
Unfair dismissal. Capability. Appeal against finding of unfair dismissal upheld; the Employment Tribunal had no basis for finding that the employers were not entitled to conclude, on the expert evidence available to them, that the Claimant was fit to return to work to perform the job of production manager and had also substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.

Judges:

Smith J

Citations:

[2010] UKEAT 0053 – 09 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441151

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements – REDUNDANCY – Fairness
The employee was one of five employees working in a department of the employer’s transport undertaking. There were two controllers, one manager, and two administrative assistants. In a downturn of business, the employer decided to close the ‘desk’, but keep the two administrative assistants doing the same job as before. An appeal on the basis that the Tribunal should have found that the dismissal of the manager was unfair because there should have been selection criteria, consultation leading to the adoption of those criteria, the Claimant manager considered for appointment to a subordinate position, and that the decision to the contrary was perverse was dismissed: on the facts, the Tribunal had been entitled to regard the relevant posts as all being redundant such that no selection criteria were required, since no choice as between candidates for dismissal by reason of the redundancies was involved.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0418 – 10 – 1705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441167

EAT UNLAWFUL DEDUCTION FROM WAGES
Case Management. Refusal by the Employment Tribunal Judge to allow a late application to enlarge a claim of sex discrimination and unfair dismissal by adding a claim of automatically unfair dismissal (by reason of making protected disclosures). Appeal dismissed. The Judge correctly directed himself in law and reached a conclusion well within the scope of his discretion.

Judges:

Luba QC J

Citations:

[2011] UKEAT 0613 – 10 – 2004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441153

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
The Employment Tribunal misconstrued the contract of employment and as a result the determination of fair dismissal under section 98(4) was unsound. The case was remitted for a rehearing.

Judges:

Hand QC J

Citations:

[2011] UKEAT 0015 – 11 – 2005

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441163