EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal did not err in deciding that the Respondent had not failed in their duty to make reasonable adjustments pursuant to the Disability Discrimination Act 1995 Section 4A. On a fair reading of its judgment the Employment Tribunal considered all the relevant issues and concluded that the Respondent had devised and implemented a reasonable adjustment in its rehabilitation programme.

Citations:

[2010] UKEAT 0509 – 09 – 2304

Links:

Bailii

Employment

Updated: 21 August 2022; Ref: scu.420251

Citations:

[2006] ScotSC 71

Links:

Bailii

Jurisdiction:

Scotland

Employment

Updated: 20 August 2022; Ref: scu.259495

Citations:

[2001] UKEAT 0469 – 00 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sivanandan v London Borough of Enfield EAT 1-May-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Oct-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Feb-1999
. .
See Also – Sivanandan v Enfield and others EAT 25-Apr-2001
. .

Cited by:

See Also – Sivanandan v Enfield and others EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and Another EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 23-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
See Also – Sivanandan v London Borough of Enfield and others CA 7-Oct-2002
. .
See Also – London Borough of Enfield v Sivanandan QBD 5-Apr-2004
. .
See Also – London Borough of Enfield v Sivanandan CA 20-Jan-2005
The employee first issued a claim in the employment tribunal, and then in the High Court. The defendant company argued that the tribunal proceedings were not concluded before the High Court proceedings were issued, but only later when they were . .
See Also – London Borough of Enfield v Sivanandan EAT 12-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal.
EAT Practice and Procedure – Striking-out/dismissal. . .
See Also – London Borough of Enfield v Sivanandan CA 29-Jun-2006
Application for civil restraint order. . .
See Also – Sivanandan v London Borough of Enfield EAT 19-Oct-2006
EAT Practice and Procedure – Estoppel or Abuse of Process. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.204112

Citations:

[2001] UKEAT 1337 – 00 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 August 2022; Ref: scu.203713

Citations:

[1997] UKEAT 830 – 97 – 1807

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Tchoula v Erteco (Uk) Ltd EAT 1-Jun-1998
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.207690

Citations:

[2001] UKEAT 1228 – 00 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 August 2022; Ref: scu.203690

A bald statement saying that X’s evidence was preferred to Y’s is implausible and unreasoned and unacceptable; included simply to try and prevent any appeal. It is likely that there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. Many people from ethnic minorities distrust the judicial system, and employment Tribunals should be careful to give no grounds for the belief that the case has not been approached even-handedly. Care should be taken to refrain from comment which might be taken by a litigant as a confirmation of his or her worse fears. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons.’

Judges:

Morison J

Citations:

Unreported, 06 March 1998, EAT/1378/96

Jurisdiction:

England and Wales

Citing:

See Also – Tchoula v Netto Foodstores Ltd EAT 14-Jul-1997
The appicant sought leave to appeal against refusal of his claim of race discrimination.
Held: Leave was granted on one point. The Industrial Tribunal under the heading ‘Dismissal’, referred to the fact that: ‘The applicant lacked the ability . .

Cited by:

Appeal from – Tchoula v Netto Foodstores (UK) Limited CA 15-Oct-1998
The complainant alleged bias on the part of the tribunal, saying that a tribunal member had fallen asleep. He now sought leave to appeal against the decision of the EAT. The Employment Appeal Tribunal had indicated certain areas of dissatisfaction . .
Cited – Deman v Victoria University of Manchester EAT 28-Sep-1998
The claimant asserted the appearance of prejudice in the tribunal which had heard his claim.
Held: The claim was unfounded. Courts should acknowledge that there was always a risk of causing suspicion if untoward remarks were made, and a court . .
Cited – Hamilton v Tandberg Televison Ltd EAT 12-Dec-2002
The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.183408

Citations:

[2001] UKEAT 760 – 00 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 August 2022; Ref: scu.203706

Citations:

[2001] UKEAT 878 – 00 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 August 2022; Ref: scu.203403

The applicant had made complaints to the Tribunal of sex discrimination and unfair dismissal. After several short notice adjournments, to the expense of the respondents, the applicant again applied for an adjournment to allow her to obtain legal representation. The Tribunal refused, and she walked out. The tribunal continued in her absence. A direction had already been given that the hearing would not be delayed for failure to complete internal proceedings.
Held: to succeed she would have to show that the decision of the Tribunal was perverse. The issues were in law complex since the internal procedures were being delayed to allow for the decision of the tribunal. Nevertheless, the decision of the tribunal was not to be faulted, and the appeal was dismissed.
EAT Procedural Issues – Employment Tribunal.

Judges:

The Honourable Mr Justice Hooper

Citations:

EAT/1419/99, [2001] UKEAT 1419 – 99 – 1503

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Sunley v University of Leicester EAT 8-Oct-1999
. .

Cited by:

See Also – Sunley v University of Leicester EAT 8-Oct-1999
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.172042

The court upheld an Industrial Tribunal decision that the dismissal of the employee was unfair where the employer failed to enter into any further consultation with the union or the employee after it had prepared a list of names of employees identified for redundancy. In particular, no discussions took place with the view to finding the employee alternative employment.

Citations:

[1989] ICR 601

Jurisdiction:

England and Wales

Citing:

Applied – Campion v Hanworthy Engineering Ltd CA 1987
The Court discussed the scope of the hearing in the Court of Appeal in an employment case. . .

Cited by:

Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.346608

Brandon LJ said: ‘With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.
For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.
While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. But, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. By contrast, if he does not know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such enquiries.’
Dennning L MR said: ‘It is simply to ask this question:- Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences.’

Judges:

Brandon LJ, Dennning L MR

Citations:

[1979] ICR 52, [1978] IRLR 499

Jurisdiction:

England and Wales

Employment

Updated: 20 August 2022; Ref: scu.346607

The Court discussed the scope of the hearing in the Court of Appeal in an employment case.

Citations:

[1987] ICR 966

Jurisdiction:

England and Wales

Cited by:

Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Applied – Walls Meat Company Limited v Selby CA 1989
The court upheld an Industrial Tribunal decision that the dismissal of the employee was unfair where the employer failed to enter into any further consultation with the union or the employee after it had prepared a list of names of employees . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.346606

Mr I was employed on a 3-year contract determinable on notice. The contract was renewed by a 2-year extension, followed by a one-year extension, and a waiver clause was agreed for the latter extension. The statute required the fixed term to be of two years or more for contracting out to be permissible.
Held: Since the contract was determinable on notice, it was not a contract for a fixed period. However (Lord Denning MR): ‘I do not think it necessary in these cases to inquire whether there is a ‘renewal’ of a previous contract of employment or a ‘re-engagement’ under a new contract of employment. That is too fine a distinction for ordinary mortals to comprehend . Suffice it to say that you must always take the final contract which expires, and on the expiration of which he claims redundancy payment or compensation for unfair dismissal. If the final contract is for a fixed term of two years or more, it is permissible for the employee in writing to agree to exclude his rights, so long as he does it before the term expires. If the final contract is for less than two years, as for instance for a fixed term of one year, then he cannot exclude his right. It matters not whether the final contract is a renewal or re-engagement. It is the final contract alone which matters in this regard.’

Judges:

Lord Denning M.R, Stephenson L.J

Citations:

[1975] 1 QB 781, [1975] 2 All ER 999

Jurisdiction:

England and Wales

Cited by:

Cited – British Broadcasting Corporation v Kelly-Phillips CA 24-Apr-1998
When a one year fixed term employment contract was extended by a period of less than a year, but then not again renewed, there was no unfair dismissal, since the exemption for the original term applied also to any extension. There had been . .
Applied – Open University v Triesman EAT 1978
An employee was employed under a contract for a fixed term of 18 months. 3 months before that period expired she was offered and accepted further employment for 7 months subject to a waiver clause.
Held: The judgments in BBC -v- Ioannou were . .
Wrong – Dixon v BBC CA 1978
The fact that a term of employment is determinable by notice does not preclude the term being a fixed term. . .
Cited – Mulrine v University of Ulster CANI 1993
An employee was employed under a contract of employment for 2 years with a waiver clause. 5 weeks before the end of that period the employer wrote to the employee, extending her contract by nearly 4 months and specifying that all other conditions of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 August 2022; Ref: scu.198052

EAT PRACTICE AND PROCEDURE – Disclosure
After an altercation with an employee, the employer consulted its insurer before deciding what action to take, as required by its policy cover. In the context of the 2002 Employment Act regime, the correspondence and the advice given were capable of attracting litigation privilege. On the EAT, but not the Claimant, seeing the material, the claim to litigation privilege was upheld, covering an insurance policy and advice given by a solicitor and non-lawyers.

Citations:

[2010] UKEAT 0178 – 10 – 1405

Links:

Bailii

Statutes:

Employment Act 2002

Employment

Updated: 19 August 2022; Ref: scu.417581

Application on notice by the Claimant for interim relief to prevent the Defendant union, the RMT, from calling a strike on the basis of a ballot that it conducted amongst its members employed by the Claimant. The central question was whether the Defendant trade union gave sufficient information to the employer to discharge its duty of notification under the relevant provisions of the 1992 Act as amended that would thus enable any strike action to be protected by statute and qualify for exemption from tortious liability, and thus amounting to a lawful strike call.

Judges:

Blake J

Citations:

[2009] EWHC 2852 (QB), [2010] IRLR 114

Links:

Bailii

Statutes:

Trade Union and Labour Relations Consolidation Act 1992

Employment

Updated: 19 August 2022; Ref: scu.417131

EAT JURISDICTION:
2002 Act and pre-action requirements
The ‘substance of the tribunal complaint’ in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 should be broadly construed; such an interpretation is consistent with the judgment of the Court of Appeal in Harris v Towergate London Market Limited [2008] IRLR 537 and the judgments of the Employment Appeal Tribunal in Remploy Ltd v Shaw [2009] ICR 1159, Eagles v Rugged Systems Ltd UKEAT/0018/09/ZT and Mockett v Credit Suisse Securities (Europe) Limited UKEAT/0299/09/CEA. The ‘substance of the tribunal complaint’ refers not to the cause of action but to the factual matrix from which the cause of action derives.
Consequently, where, as here, a disciplinary procedure had concluded before an allegation of dismissal by reason of race discrimination was made by raising a grievance, the procedure still being followed pursuant to the grievance on 30 April when the primary limitation period in respect of a complaint of unfair dismissal otherwise expired included the substance of the complaint of unfair dismissal.

Citations:

[2010] UKEAT 0510 – 09 – 0505

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416803

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
In this unfair dismissal claim, the Employment Tribunal did not err in its approach to the Claimant’s claim that the Respondent failed to deal with her grievance and so broke the implied term.
As a matter of fact the Employment Judge did not announce a finding in favour of the Claimant at the end of the hearing and published reserved reasons dismissing her claim. The Judgment and reasons were both reserved and were consistent with dismissal. The retention of a (listed) date for a remedy hearing was misunderstood by the Claimant to mean she had won.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 1712 – 09 – 1905

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416805

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
In this case on the 29 August 2008 the Appellant wrote what can only be described as a conditional resignation letter. His employer in reply pointed out that they could not action a conditional resignation and asked the Claimant to indicate whether he was or was not resigning. The Appellant emailed on 3 September making it clear he was resigning and saying his resignation was effective from the 29 August 2008. Fitzgerald v University of Kent [2004] EWCA Civ 143 makes it clear that the effective date of termination is a statutory construct. It depends on what passed between the parties and not what the parties wish or agree. As the resignation was on the 3 September 2008 the case was commenced within time.

Citations:

[2010] UKEAT 0084 – 10 – 0804

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416801

EAT JURSIDICTIONAL POINTS – Fraud and illegality
PRACTICE AND PROCEDURE
New evidence on appeal
Costs
On the Respondent’s concession that the Employment Tribunal had erred in deciding, without it being submitted to it, that the Claimant’s contract of employment was tainted by illegality and that it had no jurisdiction to hear her claims, the alternative Judgment on unappealed findings on the merits of her unfair dismissal and discrimination claims was unarguably correct. The subsequent order for andpound;10,000 costs was not appealed.
The EAT ordered EAT costs in part of andpound;1,000 as the Claimant while legally represented had unreasonably pressed on after the EAT’s costs warning at the preliminary hearing.
Respondent’s application to rely on the Claimant’s post-hearing convictions refused.

Citations:

[2010] UKEAT 0412 – 09 – 1105

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416804

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
In the course of investigation into three disciplinary matters, for which a health care professional was given a final warning, other matters came to light. The Claimant did not challenge the evidence and consented to all the matters being considered together, which resulted in her dismissal. The Employment Tribunal did not err in finding dismissal was a reasonable response to the Claimant’s conduct in putting patients at risk.

Citations:

[2010] UKEAT 0351 – 09 – 1304

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416802

EAT CONTRACT OF EMPLOYMENT: Sick pay and holiday pay
WORKING TIME REGULATIONS: Holiday pay
In this case the Employment Tribunal Chairman did not appreciate that the House of Lords have given the judgment in Stringer v Inland Revenue Commissioners [2009] ICR 932 and therefore matters need now to be reconsidered in the light of that decision.

Citations:

[2010] UKEAT 0080 – 10 – 3003

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416799

EAT PRACTICE AND PROCEDURE
Case management
Striking out/dismissal
With one exception, the orders respectively dismissing and striking out the Claimant’s numerous claims were correct. The issue relating to his PIDA claim cannot be resolved without further reasons of the Employment Judge and will go to a full hearing. See para 32.

Citations:

[2010] UKEAT 0414 – 09 – 1803

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416798

EAT PRACTICE AND PROCEDURE
Postponement or stay
Review
Postponement of appeal; absence of medical evidence. Appellant unable to attend court.
Relief from sanction; Employment Tribunal r13(2); further consideration by full Employment Tribunal on review.
No appeal against review order rendering appeal against earlier refusal by Employment Judge to revoke unless order; thus present appeal academic.

Judges:

Peter Clark J

Citations:

[2010] UKEAT 0132 – 10 – 1305

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416219

EAT UNFAIR DISMISSAL
Constructive dismissal
The Employment Tribunal correctly directed itself to the breach of the implied term of trust and confidence and was entitled to conclude that the Claimant had not been constructively dismissed.

Judges:

Serota QC J

Citations:

[2010] UKEAT 0011 – 10 – 2805

Links:

Bailii

Employment

Updated: 19 August 2022; Ref: scu.416218

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Application of the range of reasonable responses test to the sanction (dismissal) imposed by the employer for his reason for dismissal, genuinely held on reasonable grounds following a reasonable investigation.
Employment Tribunal watered down employer’s reason (set of facts or beliefs held by him, causing him to dismiss) in assessing the sanction question and impermissibly substituted their view for that of the employer.
By a majority, finding of unfair dismissal set aside. Finding of wrongful dismissal, raising a quite different question (was the employer in fact guilty of repudiatory conduct) could not be said to be perverse. Consequently, the finding of wrongful dismissal stands.

Judges:

Peter Clark J

Citations:

[2010] UKEAT 0366 – 09 – 2605

Links:

Bailii

Employment

Updated: 18 August 2022; Ref: scu.416157

EAT PRACTICE AND PROCEDURE: Costs
EQUAL PAY ACT: Equal value
Equal Pay claims. Local Authority employee Claimants. Section 1(6) of Equal Pay Act 1970. Article 141 EC. Circumstances in which EAT, upholding cross appeal, found that Employment Tribunal had erred in failing to hold that Claimants (APTandC employees) and their comparators (Manual Workers) were employed at the same establishment. Otherwise, employers’ appeal dismissed, EAT holding that ET was correct to hold that Claimants and their comparators were employed on common terms and conditions, namely the ‘Red Book’ notwithstanding that job evaluation studies not completed and, accordingly, employees not yet on new pay and grading arrangements provided for in the Red Book. Dumfries and Galloway v North and ors revisited and views revised.

Citations:

[2010] UKEAT 0002 – 09 – 1404

Links:

Bailii

Employment

Updated: 18 August 2022; Ref: scu.416155

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal had inadmissibly substituted its view for those of the employer in finding that dismissal for gross misconduct was outside the reasonable band of responses.

Citations:

[2010] UKEAT 0433 – 09 – 2004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 August 2022; Ref: scu.416161

EAT PRACTICE AND PROCEDURE
Admissibility of evidence
Amendment
The Tribunal was correct to exclude evidence which the Claimant wished to adduce concerning an alleged refusal, in the course of without prejudice negotiations, to provide a reference for her. BNP Paribas v Mezzotero [2004] IRLR 508 considered. Rush and Tomkins v GLC [1989] AC 1299, Unilever plc v Proctor and Gamble Company [2000] 1 WLR 2436, Savings and Investment Bank Ltd v Fincken [2004] 1 WLR 667 and Ofolue v Bossert [2009] 2 WLR 749 (House of Lords) applied.
2. The Tribunal did not err in law in holding that the Claimant required permission to amend and in refusing an application, prior to closing submissions, to amend for the purpose of relying on an actual comparator.
3. In any event, these rulings did not affect the outcome of the case. Given its findings of fact, the Tribunal’s conclusion was plainly correct and would have been no different if it had ruled in the Claimant’s favour on these points.

Judges:

Richardson J

Citations:

[2010] UKEAT 0250 – 09 – 2505

Links:

Bailii

Employment

Updated: 18 August 2022; Ref: scu.416158

EAT PRACTICE AND PROCEDURE
New evidence on appeal
Review
Costs
Admissibility of fresh evidence on appeal. Principles to be applied when exercising discretion on review application to Employment Tribunal. Costs in the appeal where the unreasonable conduct related to proceedings before the Employment Tribunal.

Citations:

[2010] UKEAT 0155 – 10 – 0705

Links:

Bailii

Employment

Updated: 18 August 2022; Ref: scu.416160

JURISDICTIONAL POINTS
SEX DISCRIMINATION: Continuing act
HARASSMENT: Compensation
PRACTICE AND PROCEDURE:
Appellate jurisdiction/reasons/Burns-Barke
Perversity
UNFAIR DISMISSAL: Compensation
Claimant waitresses claimed that for some years each had been subject to persistent unwanted sexual harassment by the boss of their restaurant, and had then resigned in response to it. An appeal against a Tribunal’s finding that the Respondents were liable for discrimination, harassment and unfair constructive dismissal was attacked on perversity grounds, as being insufficiently reasoned, and because a decision as to jurisdiction (challenged on time grounds) was not determined finally until the hearing on remedies was held. The findings were upheld, as was the determination that each waitress should receive the same award of damages despite their respective lengths of service varying considerably.
An appeal on the ground that the Tribunal should not have awarded 100% joint and several liability against both Respondents was rejected: Way v Crouch [2005] IRLR 603 doubted.
However, appeals were allowed against an award of money in respect of wages receivable in the notice period, and against an award of aggravated damages on a basis which was insufficiently spelt out for the parties to know precisely what was complained of and how it related to the awards made.

Judges:

Langstaff J

Citations:

[2010] UKEAT 0359 – 09 – 2801

Links:

Bailii

Employment

Updated: 18 August 2022; Ref: scu.416033

EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Impact on compensation
UNFAIR DISMISSAL: Polkey deduction
Tribunal wrong to impose no more than a 10% uplift in a case of wholesale non-compliance with statutory procedures – figure of 40% substituted. Observations on effect of Aptuit (Edinburgh) Ltd v Kennedy.
Tribunal wrong to adopt a ‘balance of probabilities’ approach in calculating future loss.

Judges:

Underhill J P

Citations:

[2010] UKEAT 0333 – 09 – 2704

Links:

Bailii

Cited by:

Cited – Wardle v Credit Agricole Corporate and Investment Bank CA 11-May-2011
The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 August 2022; Ref: scu.416034

EAT PRACTICE AND PROCEDURE
Postponement or stay
On an expedited appeal, the Regional Employment Judge wrongly refused a joint application by the parties to postpone a 2 day hearing. The case was listed for 2 days and the judge imposed a 6-day listing. It was not in accordance with the overriding objective that the parties lose their counsel and instruct new counsel on the eve of the trial, and while there remains incomplete disclosure. Hearing adjourned and the Employment Tribunal invited to use listing to conduct a CMD on disclosure issues.

Citations:

[2010] UKEAT 0212 – 10 – 2204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 August 2022; Ref: scu.415916

The Union had taken a vote of its cabin crew members as to a strike. The airline sought an interim injunction to prevent the strike, saying that the Union had not met the requirements of the Act as to proper notification of the results.
Held: An inducement to break an employment contract by striking is unlawful at common law, but is not unlawful if it is done in contemplation of a trade dispute (section 219) It is for the Union to bring itself within that protection by compliance with the Act. The Union here had done less to notify its members than had applied in the Network Rail case.
Section 221 gives a greater relevance to the likelihood of success at trial in these cases than in other types of applications for interlocutory injunctions, where the court looks to ‘the balance of convenience’, and the adequacy or otherwise of the remedies in damages available to either side if, on the one hand, wrongly injuncted or if on the other hand, wrongfully refused an injunction. The section requires the court to have regard particularly to the likelihood of success at trial of the person relying upon section 219.
The arguments as to whether the statute had been complied with gave rise to properly arguable issues for trial, and ‘I am inclined to think that the union may well have failed to put in place an adequately analysed system calculated to ensure that all reasonable steps were taken to communicate with relevant members as soon as reasonably practicable the relevant items of statutory information.’ The order was granted.

Judges:

McCombe J

Citations:

[2010] EWHC B4 (QB), [2010] EWHC 1196 (QB), [2010] EWHC 1210 (QB)

Links:

Bailii, Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 221(2) 231

Citing:

Cited – Metrobus Ltd v Unite the Union CA 31-Jul-2009
The union sought leave to appeal against an interim injunction restraining it from calling a strike. It now called in aid also its members’ Article 11 Human Rights. The company had questioned whether the ballot met the requirements of the 1992 Act. . .
Cited – Network Rail Infrastructure Limited v The National Union of Rail, Maritime and Transport Workers QBD 2010
The company complained that the defendant union had failed when arranging its strike ballot to comply with the 1992 Act. Sharp J said: ‘It is said on behalf of Network Rail that this cannot be sufficient for the purposes of section 231 giving the . .
See Also – British Airways Plc v Unite The Union QBD 17-Dec-2009
. .

Cited by:

Appeal from – British Airways v Unite The Union CA 20-May-2010
The Union appealed against an interim injunction disallowing it from relying on a strike ballot. The Judge had said that it had failed to comply with section 231 in that in announcing the results of the ballot, the union had not taken active steps . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 August 2022; Ref: scu.415949

Citations:

[2006] ScotCS CSIH – 36

Links:

Bailii

Jurisdiction:

Scotland

Employment

Updated: 18 August 2022; Ref: scu.380388

Citations:

[2016] UKFTT PEN – 2016 – 0019

Links:

Bailii

Statutes:

Pensions Act 2008

Jurisdiction:

England and Wales

Employment

Updated: 18 August 2022; Ref: scu.644245

Post employment restrictions and for an injunction restraining making use of DTL’s confidential information.

Judges:

Snowden J

Citations:

[2015] EWHC 3000 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 August 2022; Ref: scu.641818

EU Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not worked disregarded – Discrimination.

Citations:

C-396/08, [2010] EUECJ C-396/08

Links:

Bailii

Statutes:

Directive 97/81/EC

Jurisdiction:

European

Cited by:

Cited – O’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 August 2022; Ref: scu.420174

The Claimant seeks damages for breach of his employment contract and a declaration.

Judges:

Sharp J DBE

Citations:

[2010] EWHC 1855 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 August 2022; Ref: scu.421008

(Victoria)

Citations:

[1898] UKPC 57

Links:

Bailii

Jurisdiction:

Australia

Employment

Updated: 18 August 2022; Ref: scu.417187

Citations:

[2010] EWCA Civ 405

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.414583

The Union challenged by way of judicial review proposed changes to the Civil Service Compensation Scheme, saying that it removed accrued rights.
Held: The benefits under the scheme were fully legal entitlements and were protected. They were an established and declared administrative practice. An amendment could only be made with the consent of the Union, and therefore the amendments were declared invalid. The subjective policy intent of the Secretary of State or of those in his or her department is irrelevant to the question of interpretation before the court.

Judges:

Sales J

Citations:

[2010] EWHC 1027 (Admin), [2010] WLR (D) 117, [2010] ACD 73, [2010] ICR 1198, [2010] Pens LR 211

Links:

Bailii, Times, WLRD

Statutes:

Superannuation Act 1972 2(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
See Also – Public and Commercial Services Union and Others v The Minister for The Civil Service Admn 10-Aug-2011
Application for judicial review of a decision by the Defendant whereby he introduced a scheme under section 1 of the 1972 Act amending the Civil Service Compensation Scheme (‘CSCS’), and thereby reducing the benefits paid to scheme members on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 August 2022; Ref: scu.412277

EAT PRACTICE AND PROCEDURE
DISABILITY DISCRIMINATION
Reasonable adjustments
An Originating Application made a claim for compensation for detriment suffered by reason of the employer’s failure to make reasonable adjustments to accommodate the employee’s disability. At the pre-hearing review, and thereafter, the issue of disability discrimination identified by the parties for the Tribunal to resolve was whether the employer had dismissed the Claimant for a reason related to her disability. The Tribunal approached its decision on that basis, and was not invited to do otherwise until (once it had given its decision) the Claimant sought a review on the basis that there was a claim for in respect of failure to make reasonable adjustments which was free-standing and not tied to that for dismissal, which (on the factual findings as made) ought to have been answered in favour of the Claimant. It was thus argued the Tribunal had failed to determine a claim which was before it.
Held: on appeal from the Tribunal’s decision to hold a review, but refuse to alter its decision, that the Tribunal was entitled to act as it did, since its task was to determine the issues the parties put before it for decision, and that it had done.

Citations:

[2010] UKEAT 0455 – 09 – 1301

Links:

Bailii

Employment

Updated: 17 August 2022; Ref: scu.410572

EAT PRACTICE AND PROCEDURE
Case management
Striking-out/dismissal
The decision of the Employment Tribunal that the Claimant’s ET1 was illegible was perverse. Although difficult to read in parts it was perfectly readable in the original without the need for a magnifying glass. The Employment Tribunal had no jurisdiction to refuse to accept the claim under rule 3(2) of the Employment Tribunals Rules of Procedure because of partial illegibility as the ET1 did contain the required details. In any event the refusal to accept the ET1 was disproportionate and contrary to the overriding objective.

Citations:

[2010] UKEAT 0102 – 10 – 1504

Links:

Bailii

Employment

Updated: 17 August 2022; Ref: scu.410576

EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
On the Employment Judge’s findings, the claim was presented 3 days out of time, it was reasonably practicable for the Claimant to comply and there were no reasons to enlarge time. As the judge had unsatisfactory evidence from both sides, he was entitled to prefer the Respondent’s. Inequality of arms at the Employment Tribunal or the EAT was not made out. There is nothing to daunt an employee telling his story and asking for discretion.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0029 – 10 – 1904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408655

EAT DISABILITY DISCRIMINATION: Reasonable adjustments
This was an appeal by the Respondent employers against a finding that they had failed to make reasonable adjustments. After the case was opened in the first hearing it became clear that there was such a conflict between the parties that it was necessary to call for the notes and to ask for the Employment Tribunal to make clear the way in which the matter had been put before the Employment Tribunal. At a subsequent part heard finding the EAT found that any claim that there had been procedural irregularities failed and this was in effect an appeal on perversity.

Judges:

Pugsley J

Citations:

[2010] UKEAT 0254 – 09 – 2704

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Project Management Institute v Latif EAT 10-May-2007
EAT The Appellant is a qualifying body, subject to section 14 of the Disability Discrimination Act. The Tribunal found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 August 2022; Ref: scu.408653

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
S.98A(2) ERA
Although the ET correctly directed itself as to the law it inadmissibly substituted its own view of the facts for those of the Employer and failed to consider the evidence as a whole but examined the allegations of misconduct against the Claimant separately and in isolation from other evidence which may have provided a context.

Judges:

Serota QC J

Citations:

[2010] UKEAT 0270 – 09 – 2304

Links:

Bailii

Statutes:

Employment Rights Act 2002 98A

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408654

EAT JURISDICTIONAL POINTS
EXTENSION OF TIME: REASONABLY PRACTICABLE
The Claimant was one day out of time in presenting her unfair dismissal claim. She knew the time limit and had been represented. The Employment Judge was entitled to find that her medical evidence as to the last three days was incredible, and to reject the contention that tribunal staff had wrongly advised her. It was reasonably practicable to present the claim in time.

Judges:

McMullen QC HHJ

Citations:

[2010] UKEAT 0966 – 09 – 2603

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408648

EAT JURISDICTIONAL POINTS: Extension of time: reasonably practicable
The Claimant, a serving police officer had been granted anonymity at the Stockwell Tube inquest. He subsequently raised PIDA detriments in an in-time claim form, but on advice did not disclose his name or address, giving his Police Federation representative’s. The claim was not accepted by the Secretary and the Regional Employment Judge for want of those details. At a PHR to determine whether a new claim was in time, the Employment Judge decided it was. On appeal by the Commissioner, it was agreed that if the Employment Judge were wrong on being precluded from considering whether the original claim was in time by Rule 3(9), the claim would be in time.
Held: Rule 3(9) did not so constrain the Employment Judge. Since her view was clear, there would be no change if this point were remitted to her, the Judgment was unarguably correct. and it was not necessary to consider the other grounds of appeal.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0126 – 10 – 0604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408652

EAT CONTRACT OF EMPLOYMENT: Damages for breach of contract
Claim for enhanced redundancy pay. Construction of contractual term. Employment Tribunal divided. Minority view of Chairman upheld; appeal against Employment Tribunal majority decision allowed.

Judges:

Peter Clark J

Citations:

[2010] UKEAT 0505 – 09 – 1504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408651

EAT JURISDICTIONAL POINTS
Worker, Employee or Neither
The Employment Tribunal had rejected the Claimant’s claims on the basis that he was not an employee. On examination of the documents there was an employment relationship and the parties conducted themselves in accordance with it until after it ended. Employment Tribunal Judgment reversed.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0480 – 09 – 0604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408650

EAT UNFAIR DISMISSAL: Constructive dismissal
RACE DISCRIMINATION: Direct
Yemeni Claimant the subject of serious allegations by a fellow-employee – Allegations not substantiated – Claimant resigns as a result of employer’s hostility to his wish to pursue a grievance arising out of how the allegations against him and their aftermath were handled – Tribunal holds that employer’s conduct constituted a fundamental breach of the Malik term and that there was sufficient evidence to raise a prima facie case that it was on the grounds of his race.
Held: That there was sufficient evidence to justify both conclusions and that the Tribunal had been entitled to dismiss a further claim that the employer had given the Claimant insufficient support in the aftermath of the allegations.
As regards the constructive dismissal claim, the Tribunal had directed itself by reference to Fairbrother and Claridge, which had since been over-ruled by Buckland; but held that on the particular facts that was not fatal to its reasoning.

Judges:

Underhill J P

Citations:

[2010] UKEAT 0233 – 09 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408649

EAT UNFAIR DISMISSAL
JURISDICTIONAL POINTS: Worker, employee or neither
Whether liability for unfair dismissal of a teacher is transferred to LEA from defunct school Governing Body or whether LEA is directly liable to teacher for unfair dismissal.
Answer: the former.

Judges:

Peter Clark J

Citations:

[2010] UKEAT 0083 – 10 – 2004

Links:

Bailii

Employment

Updated: 17 August 2022; Ref: scu.408551

EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
An internal appeal against dismissal was not fixed until 6 months later. The Claimant citing the delay refused to attend. The appeal panel went ahead without him. The Employment Tribunal held the delay to be unreasonable. It was correct to hold the DDP had been ‘completed’ there being no requirement that it be attended by the Claimant. Fair dismissal upheld.

Citations:

[2010] UKEAT 0525 – 09 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408514

The claimant said that he was entitled to payment of substantial sums on the determination of his employment contract.
Held: The court gave judgment for Mr Geys in a sum to be assessed, with a payment on account by 1 April 2010 of Euros 11m (less tax and NI contributions), plus interest on all sums due from 3 February 2008 at 1% above base rate. He awarded Mr Geys his costs and ordered an interim payment of andpound;200,000 on account by 30 April 2010.

Judges:

G Leggatt QC

Citations:

[2010] IRLR 950, [2010] EWHC 648 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At ChD – Societe Generale, London Branch v Geys CA 30-Mar-2011
The defendant appealed against an award of substantial damages on its summary dismissal of the respondent said to be contractually due to him on termination.
Held: The appeal was allowed in part. The appellant was dismissed on 18 December . .
At ChD – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 August 2022; Ref: scu.408506

EAT JURISDICTIONAL POINTS
VICTIMISATION DISCRIMINATION: Protected disclosure
The central question in this appeal was whether an employee/worker who complained of suffering a detriment from his current employer on the ground that he had made a protected disclosure could claim where that disclosure had been made not whilst employed by his current employer but whilst employed by a previous employer. It was held that the wording of the statute appeared to permit such a claim, supported by a purposive approach seeking to ensure proper protection for the employee, and there was no sufficient contrary implication to construe the statute otherwise.

Judges:

Langstaff J

Citations:

[2010] UKEAT 0141 – 09 – 3103, [2010] IRLR 558, [2010] ICR 879

Links:

Bailii

Statutes:

Employment Rights Act 1996 47B

Jurisdiction:

England and Wales

Citing:

Cited – Hibbins v Hesters Way Neighbourhood Project EAT 7-Oct-2008
EAT VICTIMISATION DISCRIMINATION: Whistleblowing
The issue raised on this appeal was whether the whistle blowing provisions contained in section 43A to section 43M of the Employment Rights Act by the Public . .

Cited by:

Cited – AB v Ulster Bank NIIT 10-Dec-2013
The decision of the tribunal is that the claimant was subjected to detriment on grounds of having made protected disclosures. The claimant is awarded total compensation in the sum of pounds 28,792.82 . .
Cited – Smania v Standard Chartered Bank EAT 5-Dec-2014
EAT Unfair Dismissal – HUMAN RIGHTS – WORKING OUTSIDE THE JURISDICTION – An employee of a bank made allegations of financial malpractice, and was dismissed. He was Italian, and both lived and worked in Singapore. . .
Cited – Butterworth v The Police and Crime Commissioner’s Office for Greater Manchester and Another (Victimisation Discrimination) EAT 16-Nov-2015
VICTIMISATION DISCRIMINATION
VICTIMISATION DISCRIMINATION – Protected disclosure
SEX DISCRIMINATION – Post employment
TRANSFER OF UNDERTAKINGS
The Claimant left the service of Greater Manchester Police Authority (‘GMPA’), . .
Cited – Day v Lewisham and Greenwich NHS Trust and Another EAT 9-Mar-2016
EAT (Victimisation Discrimination: Protected Disclosure) A Specialist Registrar in Medical Training worked under a contract of employment with Lewisham NHS Trust. He made disclosures about patient safety, and . .
Cited – Day v Health Education England and Others CA 5-May-2017
This appeal concerns the proper construction of section 43K (whistleblowers) and the application of that section to a certain category of doctors operating in the health service.
Held: The appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 August 2022; Ref: scu.408513

EAT TRANSFER OF UNDERTAKINGS: Service Provision Change
When the NMC after competitive tender gave a new contract for future solicitors’ regulatory services to Capsticks, and none of the work in progress was handed over by Ward Hadaway, and no employee transferred, there was no service provision change under new TUPE 2006. Employment Tribunal Judgment upheld.

Judges:

McMullenQC J

Citations:

[2010] UKEAT 0471 – 09 – 2503

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006

Citing:

Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 August 2022; Ref: scu.408550

EAT PRACTICE AND PROCEDURE: Appellate Jurisdiction/Reasons/Burns-Barke
UNFAIR DISMISSAL: Constructive Dismissal
The Employment Tribunal (1) failed to determine the question whether the Respondents were in fundamental breach of contract, and (2) stated the conclusion that the Claimant ‘accepted the breach’ without any reasoning. Cases on affirmation considered: in the light of the principles applicable, derived from W E Cox Toner (International) Ltd v Crook [1981] IRLR 443, Waltons and Morse v Dorrington [1997] IRLR 488 and Bashir v Brillo Manufacturing Co Ltd [1979] IRLR 295, reasoning was essential. There was no alternative to remission, given the lack of primary findings of fact on disputed issues.

Citations:

[2010] UKEAT 0380 – 09 – 2403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408518

EAT JURISDICTIONAL POINTS
2002 Act and pre-action requirements
The Employment Judge misdirected himself on the construction of the Claimants’ grievance letters. In context, they vouched a complaint about what had happened to them after they had made an original grievance about bullying, which itself was a protected disclosure. Alternatively (if necessary) it was not a requirement of Employment Act 2002 section 32 for the Claimants to lodge a second grievance covering post-grievance detriment: Evershed citing Shergold applied.

Citations:

[2010] UKEAT 0004 – 10 – 1103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 August 2022; Ref: scu.408515

EAT UNFAIR DISMISSAL
Compensation
The Tribunal awarded compensation to the Claimant up to the date when he became unfit for work (at least for a time) due to a supervening illness. It treated any loss after this date as not attributable to the Respondent’s action in dismissing the Claimant. This was an error of law; the Tribunal ought to have considered for how long thereafter the Claimant might have been employed by the Respondent, whether he might again have become fit for work during that period, and what sick pay or other benefits he would have received during that period.

Judges:

Richardson J

Citations:

[2010] UKEAT 0018 – 10 – 1203

Links:

Bailii

Employment

Updated: 16 August 2022; Ref: scu.406564

EAT PRACTICE AND PROCEDURE
Striking Out/Dismissal
Strike out order upheld in part claim of unfair dismissal under both s103A and s98 Employment Rights Act – remitted for merits hearing before Employment Tribunal.

Citations:

[2010] UKEAT 0347 – 09 – 0403

Links:

Bailii

Employment

Updated: 16 August 2022; Ref: scu.406560

EAT UNFAIR DISMISSAL
Contributory Fault
Employment Tribunal erred in law in making deductions from the basic and compensatory award for unfair dismissal in failing to consider whether and if so to what extent the Claimant was guilty of blameworthy or culpable conduct or had control over those events which gave rise to or contributed to the dismissal.

Citations:

[2010] UKEAT 0534 – 09 – 0903

Links:

Bailii

Employment

Updated: 16 August 2022; Ref: scu.406561

EAT VICTIMISATION DISCRIMINATION
The Employment Tribunal dismissed the Claimant’s claims of direct discrimination on grounds of race and religion, without appeal.
Its Judgment upholding her claim of victimisation was set aside. There was no basis for holding that a colleague knew the Claimant’s grievance against her was a complaint of discrimination and so could not found liability. The employer’s admitted less favourable treatment was not in any event by reason of the Claimant’s grievance.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0269 – 09 – 0203

Links:

Bailii

Employment

Updated: 16 August 2022; Ref: scu.406563

EAT PRACTICE AND PROCEDURE: Perversity
UNFAIR DISMISSAL: Constructive dismissal
Constructive dismissal – appeal on the ground that the Tribunal’s reasons were perverse – appeal dismissed.

Citations:

[2010] UKEAT 0262 – 09 – 1103

Links:

Bailii

Employment

Updated: 16 August 2022; Ref: scu.406559

EAT Claim struck out on non-compliance with unless order – Tribunal refuses to review.
Held: Judge should have conducted a review hearing – Review conducted by the EAT using powers under section 35 of the Employment Tribunals Act 1996 and striking-out revoked – Observations on approach to such applications following Neary.

Judges:

Underhill J P

Citations:

[2010] UKEAT 0487 – 09 – 1301

Links:

Bailii

Statutes:

Employment Tribunals Act 1996 35

Employment

Updated: 16 August 2022; Ref: scu.406556

EAT TRANSFER OF UNDERTAKINGS
Transfer
Continuity of employment
PRACTICE AND PROCEDURE
Bias, misconduct and procedural irregularity
The Employment Tribunal held that there was a TUPE transfer when the Claimant, who was employed by a partnership of the Respondent and his father at their farm, began to work for the Respondent alone at his public house and brewery. The Employment Tribunal accepted that there was a transfer of employer but that the Claimant was an ‘economic entity’ whose employment was therefore transferred. The fact that the Employment Tribunal was considering TUPE was not made known to the parties at the hearing as it had not been raised by the Claimant.
Appeal allowed 1) as no notice of the TUPE point was given and 2) the Claimant was incapable of being an ‘economic entity’ and there was no basis for finding a TUPE transfer.

Citations:

[2010] UKEAT 0392 – 09 – 1902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 16 August 2022; Ref: scu.406557