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.
Underhill J P
[2010] UKEAT 0487 – 09 – 1301
Employment Tribunals Act 1996 35
Updated: 16 August 2022; Ref: scu.406556
Appeal against finding that claim time barred.
[2010] EWCA Civ 304
England and Wales
Updated: 16 August 2022; Ref: scu.406408
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of 25 for calculating the notice period – Justification for the measure – National legislation contrary to the directive – Role of the national court.
Skouris P
[2010] EUECJ C-555/07, ECLI:EU:C:2010:21, [2011] CEC 3, [2011] 2 CMLR 27, [2010] All ER (EC) 867, [2010] IRLR 346, [2010] 2 CMLR 33
European
See Also – Kucukdevici v Swedex GmbH ECJ 7-Jul-2007
ECJ Directive 2000/78/EC in principle non’discrimination age – National legislation on dismissal not taking into account the period of service completed before the employee reaches the age of 25 to calculate the . .
Cited – British Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.406182
Bell J
[1998] EWHC 2007 (QB), (1999) 1 LGLR 385, [2000] BLGR 9
England and Wales
Updated: 16 August 2022; Ref: scu.375090
EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The Claimant claimed unfair direct dismissal and constructive dismissal and unlawful deductions. The ET at a PHR dismissed (with costs) his unfair dismissal claims on the grounds that the Claimant had not been dismissed and were, in any event, out of time. He had been dismissed for misconduct, on appeal, demotion was substituted for dismissal; but the Respondents could only demote if the Claimant agreed. He was directed to work in the demoted post – which he did under protest, before leaving. His first ET1 was not accepted by the Employment Tribunal on the ground that he had not satisfied the Dispute Resolution requirements; he did so and presented a second ET1.
Held
(1) (i) The provision that demotion could only take place with the Claimant’s agreement had the effect that, absent such agreement, this was not a Roberts v West Coast Trains type case but was closer to Hogg v Dover College (ii) the finding that the claimant had agreed was perverse (iii) therefore he had been dismissed.
(2) The second claim was not out of time; time was extended by Regulation 15 of the Dispute Resolution Regulations.
(3) The Employment Judge had omitted in any event to deal with the Claimant’s constructive dismissal claim based on his assertion that the entire disciplinary process was a sham.
Appeal allowed. Case remitted to the Employment Tribunal to hear on merits.
[2008] UKEAT 0018 – 08 – 0707
England and Wales
Updated: 16 August 2022; Ref: scu.277400
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim allowed. The Chair had asked whether there was a good reason not to extend, rather than whether there was a good reason to do so, and on his findings of fact the reason for delay was an honest, but unreasonable, belief that the applicable time limit expired three months later than it did. Six weeks of that delay had no other good reason. Cross-appeal as to date from which time runs in an appeal in respect of non-payment of pension arising out of allegedly discriminatory exclusion from a pension scheme dismissed.
Langstaff P J
[2008] UKEAT 0139 – 07 – 2204
England and Wales
Appeal from – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At EAT – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
At EAT – O’Brien v Ministry of Justice ECJ 17-Nov-2011
ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this . .
At EAT – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
At EAT – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
See Also – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
See Also – 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 . .
See Also – The Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.269765
Directions for appeal hearing
[2000] UKEAT 1107 – 99 – 1502
England and Wales
See Also – Tchoula v ICTS (UK) Ltd EAT 27-Sep-1999
‘The purpose of this hearing is for us to consider whether or not the appeal raises any reasonably arguable points of law.’ . .
See Also – ICTS (UK) Ltd, B Tchoula v B Tchoula, ICTS (UK) Ltd EAT 4-May-2000
EAT Race Discrimination – Injury to Feelings . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.264793
[2005] EWHC 3071 (QB)
England and Wales
Updated: 16 August 2022; Ref: scu.239299
[2005] EWCA Civ 1781
England and Wales
Updated: 16 August 2022; Ref: scu.239223
[2005] EWHC 201 (QB)
England and Wales
Updated: 16 August 2022; Ref: scu.223860
The appellants challenged the calculation of their length of service as decided by the tribunal which calculation then governed the calculation of their redundancy payments payable by the respondents on the insolvency of their former employer.
[1998] UKEAT 167 – 97 – 2711
England and Wales
Appeal from – Lassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.206911
[1998] UKEAT 174 – 98 – 0511
England and Wales
See Also – Humphreys v Rowlands and Another EAT 24-Apr-1998
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.206901
[1993] UKEAT 538 – 91 – 1301
England and Wales
Updated: 16 August 2022; Ref: scu.210422
[1998] UKEAT 993 – 98 – 0111
England and Wales
Updated: 16 August 2022; Ref: scu.206870
1. Social policy – Male and female workers – Equal pay – Pay – Concept – Right to join a private occupational pension scheme – Included – Exclusion of married women from membership – Not permissible – Exclusion of part-time workers – Part-time staff composed principally of women – Not permissible where there is no objective justification
(EEC Treaty, Art. 119)
2. Social policy – Male and female workers – Equal pay – Article 119 of the Treaty – Applicability to the right to join a private occupational pension scheme – Finding in the judgment of 13 May 1986 in Case 170/84 Bilka – Limitation of the effects in time – None – Possibility of retroactively claiming equal treatment from the time (8 April 1976) when the Court first recognized that Article 119 has direct effect
(EEC Treaty, Art. 119)
3. Social policy – Male and female workers – Equal pay – Protocol on Article 119 annexed to the Treaty on European Union – Scope – Right to join an occupational social security scheme – Excluded
(EC Treaty, Protocol on Article 119)
The pension scheme did not admit married women until 1990. Among the questions referred to the CJEU was whether the Barber limitation applied to Mrs Vroege’s claim for equal access to the scheme.
Held: It was ‘important to remember the context in which it was decided to limit the effects in time of the Barber judgment’, and the court reaffirmed the two ‘essential criteria’ for such a limitation, viz, ‘the general principle of legal certainty . . and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith’, both of which had been met in Barber. On that basis, it stated that the Barber limitation ‘concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions’ .
C-C-57/93, [1994] EUECJ C-C-57/93, [1995] 1 CMLR 881, [1994] ECR I-4541, [1994] IRLR 651, [1995] All ER (EC) 193, [1995] ICR 635
European
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.215808
Where a tribunal had found unfair dismissal and was considering an award of damages for injury to feelings under the Disability Discrimination Act, it had to recognise the different needs of unlimited awards, and take great care in assessing factual materials.
Morison J said: ‘What one might describe as the relatively brief and informal hearing on remedy appropriate in unfair dismissal cases may not be appropriate where the compensation is uncapped. In the former category of case, the judgment and experience of the lay members may be especially important in relation to the state of the job market in their locality and the potentiality for the applicant obtaining new employment, and thus, the tribunal may not be assisted by much, if any, evidence. But where the case involves unlimited compensation, it will often be the case that the remedies hearing should involve the parties in careful preparation under the management of the tribunal. For this purpose, directions may be required involving, amongst other things, an exchange of statements of case and any witness statements.’
Morison J
Times 03-Dec-1998, Gazette 06-May-1999, [1999] IRLR 158, [1998] UKEAT 337 – 98 – 1911, [1999] ICR 269
Disability Discrimination Act 1995
England and Wales
See Also – Buxton v Equinox Design Ltd EAT 30-Apr-1998
. .
Cited – Woodlands School (Newton Stewart) Ltd v Gordon EAT 5-Oct-2001
The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no . .
See Also – Buxton v Equinox Design Ltd EAT 30-Apr-1998
. .
Cited – Sterlite Industries (India) Ltd v Bhatia EAT 27-Mar-2003
The respondent had been found to be unfairly dismissed. The appellants wished to appeal and sought disclosure of certain documents from the respondent’s solicitors. They now appealed against that refusal.
Held: The appeal succeeded. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.206868
[2001] UKEAT 1145 – 00 – 0102
England and Wales
See Also – Sivanandan v Hackney Action for Racial Equality (Hare) EAT 20-Oct-1999
EAT Procedural Issues – Employment Tribunal . .
Appeal from – Sivanandan v Hackney Action for Racial Equality Executive Committee CA 25-Jan-2002
. .
See Also – Sivanandan v Hackney Action for Racial Equality and others EAT 18-Nov-2003
EAT Race Discrimination – Aiding and abetting . .
See Also – Sivanandan v Hackney Action for Racial Equality etc EAT 6-Jul-2004
EAT Disability Discrimination – Reasonable adjustments – Practice and Procedure – Disclosure.
EAT Practice and Procedure – Disclosure. . .
See Also – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.203569
The Tribunal lifted the stay of the claimant’s claim of disability discrimination.
Morison J P
[1998] UKEAT 1004 – 98 – 1911
Disability Discrimination Act 1995
England and Wales
See Also – Kapadia v London Borough of Lambeth EAT 27-May-1999
The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Cited – Kapadia v Lambeth London Borough Council CA 4-Jul-2000
The claimant asserted disability discrimination, and consented to a medical report for the purpose of the claim. He was then to be obliged to consent to its release to the other party. To order otherwise would be contrary to the need for expeditious . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.206905
[1993] UKEAT 657 – 92 – 1801
England and Wales
Updated: 16 August 2022; Ref: scu.210412
[1998] UKEAT 1053 – 98 – 1211
England and Wales
Updated: 16 August 2022; Ref: scu.206902
EAT Unfair Dismissal – Contributory fault
His Honour Judge Peter Clark
EAT/0136/03, [2003] EAT 0136 – 03 – 0107, [2003] UKEAT 0136 – 03 – 0107
England and Wales
Appeal from – Bunning v G T Bunning and Sons Limited CA 9-Feb-2005
Application for leave to appeal. Leave granted but claimant warned as to likelihood of success. . .
Appeal from – Suzanne Bunning v G T Bunning and Sons Ltd CA 27-Jul-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.185272
[2001] EWCA Civ 1116
England and Wales
Updated: 16 August 2022; Ref: scu.201306
(Rec 2000,p FP-IA-31,II-135)
T-223/97, [2000] EUECJ T-223/97
European
Updated: 16 August 2022; Ref: scu.173414
EAT Race Discrimination – Injury to Feelings
His Honour Judge Peter Clark
EAT/1108/99, EAT/1107/99, [2000] IRLR 643
England and Wales
See Also – ICTS (UK) Ltd v Tchoula EAT 15-Feb-2000
Directions for appeal hearing . .
See Also – Tchoula v ICTS (UK) Ltd EAT 27-Sep-1999
‘The purpose of this hearing is for us to consider whether or not the appeal raises any reasonably arguable points of law.’ . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Quicks Group Plc v Khan EAT 20-Jun-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.171828
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex discrimination lies initially on the employee. The burden of proof in indirect discrimination cases should be approached in the same way irrespective of whether they are brought under article 119 (141), under the 1975 Act, or under the 1970 Act. ‘It is for the claimant to provide the necessary statistics, to show on the balance of probabilities a disproportionate adverse impact and thereby establish a prima facie case that she had suffered indirect discrimination, and that she had failed to do so.’
Lord Justice Simon Brown, (Vice-President Of The Court Of Appeal Civil Division), Lord Justice Dyson and Lord Justice Scott Baker
Times 02-May-2003, Gazette 03-Jul-2003, [2003] EWCA Civ 544, [2002] ICR 1256
Equal Pay Act 1970 1, Council Directive 75/117EC (the Equal Pay Directive).
England and Wales
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 – Strathclyde Regional Council and others v Wallace and others (Scotland) HL 22-Jan-1998
80% of the men who had been employed since 1 April 1997 had got protection under TUPE whereas only 66.66% of the women had. It was argued that this difference in percentages was sufficient to justify a claim of indirect discrimination.
Held: . .
Cited – Glasgow City Council and Others v Marshall and Others HL 8-Feb-2000
Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
Cited – Specialarbejderforbundet i Danmark v Dansk Industri ECJ 31-May-1995
Equal pay provisions apply to piece rate work- Employer to justify differences. where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Appeal from – M Nelson v Carillion Services Ltd EAT 26-Jun-2002
EAT Equal Pay Act – . .
Appealed to – M Nelson v Carillion Services Ltd EAT 26-Jun-2002
EAT Equal Pay Act – . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.180744
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of the contract of employ- ment and has the effect of supplementing the social benefits paid under national legislation of general application with benefits financed entirely by the employer does not constitute a social security scheme governed directly by statute and thus outside the scope of article 119, but is subject to that provision. Article 119 of the treaty is infringed by an undertaking which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex. Such factors may lie in the fact that the undertaking seeks to employ as few part-time workers as possible, where it is shown that that objective corresponds to a real need on the part of the undertaking and the means chosen for achieving it are appropriate and necessary. Article 119 does not have the effect of requiring an employer to organize its occupational pension scheme in such a manner as to take into account the particular difficulties faced by persons with family responsibilities in meeting the conditions for entitlement to such a pension.
‘It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.’
[1986] ECR 1607, [1987] ICR 110, C-170/84, R-170/84, [1986] EUECJ R-170/84, [1984] IRLR 317
European
See Also – J P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
Followed – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Hardys and Hansons Plc v Lax CA 7-Jul-2005
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Azmi v Kirklees Metropolitan Borough Council EAT 30-Mar-2007
The claimant alleged discrimination. As a teaching assistant, she had been refused permission to wear a veil when assisting a male teacher.
Held: Direct discrimination had not been shown. The respondent had shown that any comparator would have . .
Cited – Blackburn and Another v West Midlands Police CA 6-Nov-2008
The claimants, female police officers, complained that male officers had received priority payments where they had received none. The defendant said that the payments were justified in achieving a proper aim, namely the encouragement of night . .
Cited – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – Rolls Royce Plc v Unite the Union QBD 17-Oct-2008
The company had entered into collective agreements with the union governing criteria and procedures for redundancy selection. The company said that the criteria were not compliant with the age discrimination regulations.
Held: The union was . .
Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – Ayling v Summers and Others ChD 14-Sep-2009
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.133926
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which facilitates his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. Such benefits paid in connection with a compulsory redundancy consequently fall within the scope of the second paragraph of Article 119 of the Treaty, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Unlike the benefits awarded by national statutory social security schemes, retirement pensions paid under private occupational schemes, which are characterized by the fact of being established either by an agreement between workers and employers or by a unilateral decision taken by the employer – whether financed by the employer alone or by both the employer and the workers – which may by law with the employee’ s agreement operate in part as a substitute for the statutory scheme and which apply only to workers employed by certain undertakings, constitute consideration paid by the employer to the worker in respect of his employment and consequently fall within the scope of Article 119 of the Treaty. The fact that a private occupational scheme has been set up in the form of a trust and is administered by trustees who are technically independent of the employer does not affect that interpretation of Article 119 since that provision also applies to consideration received indirectly from the employer.
3. Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality. Accordingly, it is contrary to that provision to impose an age condition which differs according to sex for the purposes of entitlement to a pension under a private occupational scheme which operates in part as a substitute for the statutory scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme.
4. With regard to equal pay for men and women, genuine transparency, permitting an effective review by the national court, is assured only if the principle of equal pay must be observed in respect of each of the elements of remuneration granted to men and women, and not on a comprehensive basis in respect of all the consideration granted to men and women.
5. Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision. The national court before which that provision is relied upon must safeguard the rights which it confers on individuals, in particular where a private occupational pension scheme which operates in part as a substitute for the statutory scheme refuses to pay to a man on redundancy an immediate pension such as would be granted in a similar case to a woman.
6. Since the Member States and the circles concerned may, in the light of Directives 79/7 and 86/378, have misunderstood the precise extent of their obligations with regard to the implementation of the principle of equality between men and women for the purposes of the grant of certain retirement benefits, overriding considerations of legal certainty preclude the direct effect of Article 119 of the Treaty from being relied upon in order to claim, under a private occupational pension scheme which operates as a substitute for the statutory scheme, entitlement to a pension with effect from a date prior to that of the judgment upholding, in proceedings for a preliminary ruling, the applicability of that article to pensions of that type, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.
he court recorded the submissions of the Commission and the UK government:
‘the Commission has referred to the possibility for the court of restricting the effect of this judgment ratione temporis in the event of the concept of pay, for the purposes of the second paragraph of article 119 of the Treaty, being interpreted in such a way as to cover pensions paid by contracted-out private occupational schemes, so as to make it possible to rely on this judgment only in proceedings already pending before the national courts and in disputes concerning events occurring after the date of the judgment. For its part the United Kingdom emphasised at the hearing the serious financial consequences of such an interpretation of article 119. The number of workers affiliated to contracted-out schemes is very large in the United Kingdom and the schemes in question frequently derogate from the principle of equality between men and women, in particular by providing for different pensionable ages.’ Taking the course that the Commission and the UK government had invited it to follow was only possible as an exceptional measure. It said that ‘it may, by way of exception, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the court, in proceedings on a reference to it for a preliminary ruling, gives to a provision.’
(1990) ICR 616, C-262/88, [1990] ECR I-1889, [1991] 1 QB 344, R-262/88, [1990] EUECJ R-262/88
European
Cited – William James Quirk v Burton Hospital NHS Trust the National Health Service Pensions Agency CA 12-Feb-2002
The applicant appealed a refusal to rule that the system of allowing females better retirement options than would be granted to him as a Health Service employee were sexually discriminatory. The difference arose because of differentials applied . .
Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Cited – In the Matter of the Universities Superannuation Scheme – Universities Superannuation Scheme Ltd v Simpson, Mcadoo, University of London ChD 29-Apr-2004
Members of the superannuation scheme complained that trustees were calculating the benefits payable on early retirement by reference to the standard terms of employment, and even though they had particular and different terms.
Held: The . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Cited – Coloroll Pension Trustees v Russell and others (Judgment) ECJ 28-Sep-1994
The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male . .
Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.134949
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and therefore against women.
Held: A severance pay scheme, which calculated the amount payable according to length of service and terminal salary, was not sexually discriminatory, or indirectly so, even though more women than men worked part-time at the end of their employment and so received lesser amounts. A scheme which was fair to employees as a whole might still be unfair to individuals.
Lord Nicholls described the operation of the principle of proportionality: ‘In other words, the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seems to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon.’
Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Steyn Lord Hoffmann Lord Clyde
Times 23-Jul-1999, Gazette 11-Aug-1999, [1999] UKHL 38, [1999] ICR 859, [1999] 1 WLR 1465, [1999] 3 All ER 974
England and Wales
Appeal from – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Cited – Stadt Lengerich and others v Helmig and others (Judgment) ECJ 15-Dec-1994
ECJ The Court of Justice is in principle bound to give a preliminary ruling if the questions raised by the national court or tribunal, which is best placed to appreciate, in the light of the circumstances of the . .
Cited – Maria Kowalska v Freie und Hansestadt Hamburg ECJ 27-Jun-1990
Europa Compensation paid to a worker on termination of the employment relationship is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of . .
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Kuratorium fur Dialyse und Nierentransplantation v Lewark ECJ 6-Feb-1996
Europa The concept of pay within the meaning of Article 119 of the Treaty comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
Appealed to – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.78267
Laing J
[2019] EWHC 2357 (QB)
England and Wales
Updated: 16 August 2022; Ref: scu.642133
Earl Loreburn, Lords Atkinson, Shaw, Parmoor, and Wrenbury
[1916] UKHL 810, 53 SLR 810
Workmen’s Compensation Act 1906
England and Wales
Updated: 16 August 2022; Ref: scu.630667
The plaintiff had been wrongly dismissed. He came to be employed by Martindale at a lower salary, and bought shares in Martindale and Ventilation which increased in value.
Held: The new salary and the increase in the value of the Martindale shares were brought to account when assessing damages, but not the increase in the value of the Ventilation shares, on the ground that that benefit was not a direct result of the dismissal but was an ‘entirely collateral benefit’.
When looking at the damages to be awarded on a breach of contract by an employer, ‘the first task is to estimate . . what the Plaintiff would have gained . . if the defendant had fulfilled his legal obligation and had done no more.’
‘Martindale stands on a little different footing. His salary of pounds 1,500 was very low for a man of his ability: and it looks as if he was getting, in addition, a concealed remuneration by a profit on his shares in the company. In the course of the argument Russell LJ worked out the estimated improvement in his equity over the period from August, 1964, to March, 1967, in so far as it was due to his work. It comes to pounds 2,066. I think that the plaintiff should give credit for that figure in addition to the actual earnings of pounds 3,717 9s. 2d.’
The employment relationship does not give rise to any promise that an employee will receive any salary increases or even be considered for salary increases.
Diplock LJ qualified the principle that where the defendant in breach has the option of performing a contract in alternative ways, damages for breach by him must be assessed on the assumption that he will perform in the way most beneficial to himself and not in that most beneficial to the plaintiff, by stating that one ‘must not assume that [the defendant] will cut off his nose to spite his face and to control events so as to reduce his legal obligations to the plaintiff by incurring greater loss in other respects’.
Russell LJ said: ‘Finally, there is the question whether any and what deduction should be made from the damage suffered on account not only of his salary earned and expected in the period from Martindale, but also on account of the undoubted fact that the expenditure of the time released to him by the wrongful dismissal has enabled him by his work and management during that time to enhance the value of the half interest in Martindale that he bought for pounds 1,500 shortly after his dismissal. I agree that account should be taken of this, though of necessity a fairly high degree of estimation is involved. The master held that in all the circumstances it was reasonable that the plaintiff should go into Martindale on the terms on which he did, rather than hawk his services around. One of the reasons for saying that it was reasonable is that avowedly the plaintiff was hoping to gain in part by improving by his own efforts the value of his holding as well as, in other part, by a relatively low salary. To the extent that this hope has been fulfilled in the relevant 2? years, it seems right to set it against his loss of salary from the defendants. As to the method of assessment of the extent to which his released time has contributed to the increase in value of his interest, the following calculation leads to the figure of pounds 7,768 mentioned by the Master of the Rolls’
Russell LJ continued: ‘I turn to the question of Ventilation and the plaintiff’s investment therein. I can see no justification for considering this investment as of any relevance to the damage occasioned by the wrongful dismissal. It was an investment of money and nothing more. Its profitability or otherwise cannot be attributed to his release from his obligation to devote his time to the service of the defendants; because such minimal time as he devoted to the affairs of Ventilation cannot seriously be regarded as having been made available to him by his dismissal. It is of course true that during his employment he was barred from such investment in a company carrying on this particular type of business, which is in France in competition with the defendants. But that does not suffice to entitle the defendants to set off any improvement in the value of the plaintiff’s shareholding against his loss of salary and bonus. It is simply a question of turning his private money or credit to account and not his time and work. It is no different from an investment which he could have made during his continued service.’
Lord Denning MR, Diplock LJ, Russell LJ
[1966] 3 All ER 683, [1967] 1 QB 278, 1 KIR 312, [1966] 3 WLR 706, [1966] EWCA Civ 4
England and Wales
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.416163
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other elements of pay.
Held: The position was not acte claire, and the case was referred to the ECJ.
Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Clarke
[2010] UKSC 16
The Civil Aviation (Working Time) Regulations 2004 (SI 2004 No. 756), Council Directive 2000/79/EC of 27 November 2000, Working Time Regulations 1998 (SI 1998 No. 1833)
England and Wales
At EAT – British Airways Plc v Williams and others EAT 28-Feb-2008
EAT Working Time Regulations: Holiday Pay
Civil Aviation (Working Time) Regulations – whether the annual leave pay of airline pilots should be calculated by reference to their basic salary or their basic . .
Appeal from – British Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
Cited – Tarmac Roadstone Holdings Ltd v Peacock CA 1973
Overtime hours are not part of normal working hours when calculating redundancy payments unless they are obligatory on both sides, that is, contractually guaranteed by the employer and compulsory for the employee.
Lord Denning MR said: ‘First, . .
Cited – D Bamsey and others v Albon Engineering and Manufacturing Plc CA 25-Mar-2004
The applicants worked under an arrangement where they received considerable payments additional to their basic pay for compulsory overtime, but the holiday pay was calculated by the employer on the basic pay.
Held: The 1998 Regulations were . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Kucukdeveci v Swedex GmbH and Co KG ECJ 19-Jan-2010
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of . .
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Reference from – Williams And Others v British Airways Plc ECJ 16-Jun-2011
ECJ (Opinion) Working conditions – Organisation of working time – Article 7 of Directive 2003/88/EC – Right to paid annual leave – Extent of the obligations provided for by that directive in respect of the nature . .
Reference to ECJ – British Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .
Reference – Williams And Others v British Airways Plc ECJ 15-Sep-2011
ECJ Working conditions – Directive 2003/88/EC – Organisation of working time – Right to annual leave – Airline pilots
ECJ Article 7 of Directive 2003/88/EC and clause 3 . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.406124
The doctor had been summarily dismissed for gross misconduct. He now appealed against the EAT’s reversal of the finding of unfair dismissal. The original procedure adopted was appropriate to a lesser level of misconduct, but the employer had later used the findings to suport the decision to dismiss.
Held: The Employment Tribunal had not erred in this case in substituting its own view for that of the employer. The appeal succeeded.
Mummery, Richards, Rimer LJJ
[2010] EWCA Civ 289, [2010] IRLR 508
Employment Right Acts 1996 98(4)
England and Wales
Cited – Iceland Frozen Foods Ltd v Jones EAT 29-Jul-1982
Members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to . .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Appeal from – West London Mental Health NHS Trust v Sarkar EAT 27-Mar-2009
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
An Employment Tribunal erred as it focussed upon a decision made by the employer to negotiate a settlement under a procedure leading to a lesser penalty . .
Cited – Airbus UK Ltd v MG Webb CA 7-Feb-2008
The court considered the dismissal by an employer of an employee for a disciplinary offence when he would not have been dismissed but for an earlier warning which had expired.
Held: The company’s appeal succeded. The court summarised the . .
Cited – Chhabra v West London Mental Health NHS QBD 1-Jun-2012
The claimant, a consultant forensic psychiatrist sought to restrain the defendants from going ahead with disciplinary proceedings as to alleged breaches of patient confidentiality.
Held: The application succeeded. The complaint was properly as . .
Cited – Christou and Another v London Borough of Haringey EAT 21-Feb-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants, the social worker responsible for the care of Baby P and her team manager, were held not to have been unfairly dismissed by Haringey for . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.403473
Jack J
[2010] EWHC 484 (QB), [2010] IRLR 648
England and Wales
Updated: 15 August 2022; Ref: scu.403368
EAT Disability discrimination – Justification
The Appellant alleged that the Tribunal had misdirected itself on the issue of justification in a disability discrimination case and had asked whether the employer’s decision was rational, in the sense of perverse, rather than within the range of reasonable responses as laid down in Jones v Post Office [2001] ICR 805. EAT held that as a matter of construction of the decision, the Tribunal did not fall into this error.
Elias P J
[2006] UKEAT 0594 – 05 – 0706
Updated: 15 August 2022; Ref: scu.403351
[2005] UKEAT 0076 – 05 – 2107
England and Wales
Updated: 15 August 2022; Ref: scu.230148
Appeal from rejection of claim for sex discrimination – gender reassignment
Hooper LJ
[2006] EWCA Civ 132, [2006] IRLR 471
Sex Discrimination Act 1975 2A
England and Wales
Updated: 15 August 2022; Ref: scu.239106
[1993] UKEAT 50 – 92 – 2710
England and Wales
Updated: 15 August 2022; Ref: scu.210772
[2002] EWCA Civ 867
England and Wales
Cited – Butcher v Salvage Association EAT 21-Jan-2002
. .
See Also – Butcher v The Salvage Association EAT 20-Dec-2002
EAT Unfair Dismissal – Contributory fault . .
See Also – Butcher v The Salvage Association EAT 2-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.217144
[1991] UKEAT 547 – 90 – 1410
England and Wales
Updated: 15 August 2022; Ref: scu.211290
[2002] UKEAT 1286 – 00 – 2006
England and Wales
Cited – ICTS (UK) Ltd, B Tchoula v B Tchoula, ICTS (UK) Ltd EAT 4-May-2000
EAT Race Discrimination – Injury to Feelings . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.202945
[1994] UKEAT 123 – 94 – 1407
England and Wales
See Also – Fire Brigade Union v Knowles and Another EAT 8-Dec-1995
. .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.210044
[2001] EWCA Civ 1299
England and Wales
Appeal from – Petrides v Direct Line Group Services Ltd EAT 9-May-2001
. .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.201280
[1993] UKEAT 592 – 92 – 1701
England and Wales
Updated: 15 August 2022; Ref: scu.210389
[1993] UKEAT 456 – 90 – 2904
England and Wales
Updated: 15 August 2022; Ref: scu.210564
‘Normal retiring age’
[1993] UKEAT 220 – 91 – 1901
England and Wales
Appeal from – Barclays Bank Plc v O’Brien and Others CA 25-Jul-1994
The court set out and restated the principles for determining what was the normal retiring age in an employment. The ‘Normal’ retirement age is 65 unless the employment contract provides a different age for retirement. A retirement policy does not . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.210383
Stephens LJ and Sir Paul Girvan
[2018] NICA 41
Northern Ireland
Updated: 15 August 2022; Ref: scu.641380
[2013] EWCA Civ 29, [2013] IRLR 387, (2013) 131 BMLR 85, [2013] ICR D23
England and Wales
Updated: 14 August 2022; Ref: scu.470833
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
Impact on compensation
UNFAIR DISMISSAL
Compensation
Mitigation of loss
The principal issues in the appeal concerned the now repealed statutory dismissal procedure in Employment Act 2002 Schedule 2 Part 1 Chapter 1.
The Employment Tribunal did not err in holding that the employer was in breach of the statutory dismissal procedure by failing to warn the employee of the possibility that the disciplinary hearing could result in her dismissal in accordance with Step 1 and Alexander v Bridgen Enterprises Ltd [2006] IRLR 422. The giving of such a warning before a reconvened hearing did not cure the defect as the hearing was not restarted after the necessary information had been given. YMCA Training v Stewart [2007] IRLR 185 considered.
The decision of the Employment Tribunal to award an uplift of 30% in the compensatory award was perverse.
The Employment Tribunal failed to make any findings as to the medical ability of the employee to work after her dismissal or as to the availability of suitable work for her. The award of compensation until retirement date was not based on findings of fact.
Compensatory award and 30% uplift set aside. Claim for compensatory award remitted to a different Employment Tribunal for rehearing. 10% uplift to be applied to any compensatory award.
Slade J
[2010] UKEAT 0398 – 09 – 1908
England and Wales
Cited – Alexander and Hathersley v Bridgen Enterprises Ltd EAT 29-Mar-2006
The EAT considered the effect of an employer’s failure to comply with the statutory procedures in a redundancy.
Held: ‘there is an automatically unfair dismissal where there is a failure fully to comply with any relevant statutory procedure. . .
Cited – YMCA Training v Stewart EAT 6-Dec-2006
EAT Unfair dismissal – Polkey deduction/ Automatically unfair reasons
Employment Tribunal wrong to find breaches of ‘step 1’ and ‘step 2’ of statutory dismissal procedure and accordingly wrong to find . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.421530
EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
Four points arising out of the application of section 32 of the Employment Act 2002 in a series of related equal pay multiples.
Held:
(1) In a case involving the modified grievance procedure, where the Claimant in her grievance had identified four jobs but had in her eventual claim identified two of those jobs but also two which were different, she was entitled to pursue her claim in so far as it relied on comparison with the former but not the latter: each individual comparison gives rise to a distinct claim. Cannop v Highland Council [2008] IRLR 634 referred to.
(2) A Claimant cannot rely on a ‘collective grievance’ under reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 if the statement relied on raises a grievance in relation to a different job from that which she was in fact doing. But a mistake of this kind can be corrected prior to the issue of proceedings.
(3) It was sufficiently apparent that male claimants identified in a collective grievance statement were advancing ‘piggyback’ claims, even though that was not spelt out in the statement itself.
(4) A grievance that had been withdrawn could only be reinstated in writing.
Underhill P J
[2010] UKEAT 0500 – 08 – 2501
Distinguished – Sefton Metropolitan Borough Council and Another v Hincks and Others EAT 14-Jul-2011
EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
PRACTICE AND PROCEDURE – Amendment
EQUAL PAY ACT – Case Management
Equal pay claimants in their original grievances named a . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.402638
EAT PRACTICE and PROCEDURE: Reasons / Perverse
UNFAIR DISMISSAL: Constructive dismissal
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether Infringed
HARASSMENT: Compensation
Meek compliance – perversity – constructive dismissal (see now Buckland (CA) – causation of loss following sexual orientation harassment – statutory uplift where no discussion took place at grievance meeting – costs in the EAT.
[2010] UKEAT 0474 – 09 – 1203
England and Wales
Updated: 14 August 2022; Ref: scu.402641
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Employment Tribunal held that a Minister of the Free Presbyterian Church of Scotland was not an employee. He was an office holder. Judgment challenged on appeal as not being ‘Meek’ compliant. Appeal refused. The judgment, though economically explained, was adequate. Furthermore, the conclusion was entirely understandable in the light of the facts found and the relevant law. The Employment Appeal Tribunal was not, in particular, satisfied, that evidence which the Claimant sought to have revisited would, even if accepted, have led to the conclusion that the Claimant was an employee.
Lady Smith
[2010] UKEAT 0034 – 09 – 1002
Updated: 14 August 2022; Ref: scu.402640
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
While assisting in the restraint of a patient admitted to AandE, the female Claimant senior nurse sat astride his naked genitals and made a lewd comment for which she was dismissed. The majority Employment Tribunal Judgment of unfair dismissal and 25% contribution was set aside as perverse and the minority Judgment was substituted. The majority failed to apply the approach in London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA for it did not focus on the material available to the management, and their opinion of this conduct, at the time of dismissal, and irrelevantly invoked its perception of how the general population would view the conduct. Minority Judgment upheld.
McMullen QC J
[2009] UKEAT 0144 – 09 – 1412
Appeal from – Bowater v Northwest London Hospitals NHS Trust CA 3-Feb-2011
The claimant nurse’s successful claim of unfair dismissal had been overturned by the EAT. She now sought re-instatement of the decision. In restraining a naked patient in the midst of a violent epileptic fit, she had made a lewd remark.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.402535
EAT PRACTICE AND PROCEDURE:
Appellate jurisdiction / reasons / Burns-Barke
Disposal of appeal including remission
UNFAIR DISMISSAL:
Contributory fault
Polkey deduction
Remission to Tribunal; adequacy of reasons; contributory fault; Polkey deduction.
The Appellant dismissed the Respondent in circumstances where the dismissal was procedurally unfair. The Tribunal also held, despite substantial evidence to the contrary, that the Respondent was not in fact guilty of the matters for which he was dismissed. It nonetheless held that had a fair procedure been followed he might still have been dismissed. It, without giving adequate reasons, apparently held that he had not, by the acts which were proved, contributed to his dismissal and that it was too speculative to determine what would have occurred if a fair procedure had been followed. The case was remitted to the same Tribunal further to consider the questions of contributory fault and Polkey deduction.
[2010] UKEAT 0378 – 09 – 0103
Updated: 14 August 2022; Ref: scu.402532
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
WRONGFUL DISMISSAL
Employee dismissed because of police ‘disclosure’ that he had been engaged in paedophile activity in Cambodia, notwithstanding his acquittal by a Cambodian court, and that he posed a continuing risk to children.
Held:
(1) That the employer, which had not accepted the disclosure uncritically and had taken reasonable steps to assess its reliability, had been entitled to treat the information as reliable and to dismiss the Claimant on the basis of it in order to avoid potential reputational damage, even though he did not work with children.
(2) That the Tribunal had been entitled to hold that lack of candour on the part of the Claimant in telling the Respondent the allegations against him constituted a sufficiently serious breach of contract to justify his summary dismissal.
Underhill J P
[2010] UKEAT 0206 – 09 – 2801, [2010] IRLR 844, [2010] ICR 849
Updated: 14 August 2022; Ref: scu.402559
EAT PRACTICE AND PROCEDURE: Time for appealing
It is open to a litigant when appropriate to challenge the accuracy of the date recorded on an employment tribunal judgment as to the date when it was ‘sent’ to him.
Employment Tribunals have a procedure to ensure that documents are sent on the on the date stamped upon the document as being the date of sending. In future cases, when requested to do so, the Employment Tribunal should be ready to provide evidence as to those procedures.
[2010] UKEAT 0496 – 09 – 1801
Updated: 14 August 2022; Ref: scu.402560
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
Where a Claimant is in custody as a result of the imposition of a sentence of imprisonment that is a factor which should be considered by the Employment Tribunal in exercising its discretion to strike out for non compliance with an order for disclosure.
[2009] UKEAT 0200 – 09 – 1310
England and Wales
Updated: 14 August 2022; Ref: scu.402534
EAT CENTRAL ARBITRATION COMMITTEE
Penalty of andpound;10,000 imposed for breach of reg. 19 (4) of the Information and Consultation of Employees Regulations 2004.
Underhill P J
[2010] UKEAT 0391 – 09 – 0403
Information and Consultation of Employees Regulations 2004 19(4)
Updated: 14 August 2022; Ref: scu.402533
EAT PRACTICE AND PROCEDURE
Appellate jurisdiction / reasons / Burns-Barke
Case Management
The Employment Judge sitting alone at a pre-hearing review was correct in excluding evidence obtained by a covert recording of a discussion by the panel at a capability hearing under Regulations 13 of the Police Regulations 2003 when neither the Appellant nor his representative were present having withdrawn so that the discussion could take place. The decision was within the Judge’s discretion. In any event the decision accorded with the EAT judgment in Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198.
Birtles J
[2010] UKEAT 0346 – 09 – 0903
Cited – Amwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
Cited – Punjab National Bank (International) Ltd and Others v Gosain EAT 7-Jan-2014
EAT PRACTICE AND PROCEDURE – Preliminary issues – Whether court recordings of relevant meetings prior to Claimant’s alleged dismissal were to be admissible in evidence at trial insofar as they involved private . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.402561
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
The Tribunal failed to deal with an important piece of evidence which might have been crucial to the case. Remitted for re-hearing before a different Tribunal.
[2010] UKEAT 0324 – 09 – 2201
Updated: 14 August 2022; Ref: scu.402529
EAT JURISDICTIONAL POINTS
Extension of Time: Reasonably Practicable
Extension of time: Just and Equitable
Employment Tribunal refused to extend time for unfair dismissal claim and for sex and race discrimination claims.
Held: There was no error of law. Appeal dismissed.
[2010] UKEAT 0182 – 08 – 1901
Updated: 14 August 2022; Ref: scu.402528
EAT JURISDICTIONAL POINTS:
2002 Act and Pre-Action Requirements
Claim in Time and Effective Date of Termination
Extension of Time: Reasonably Practicable
The Tribunal at a pre-hearing review erred in law in holding that the Appellant was barred by section 32(2) from bringing (1) certain complaints of racial harassment and (2) a specific complaint concerning one particular individual employee. The Appellant had complied with step 1 of the grievance procedure in these respects. Appeal allowed in respect of these complaints. Cross appeal in respect of other issues, where the Appellant was successful, dismissed.
The Tribunal at a pre-hearing review erred in law in holding that the Appellant was time barred from proceeding with discrimination complaints. The Tribunal ought to have applied the principles set out in Hendricks v Metropolitan Police [2003] IRLR 96 and directed that issues relating to time bars be determined at the merits hearing.
Richardson J
[2010] UKEAT 0251 – 09 – 1902
England and Wales
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.402530
EAT REDUNDANCY
Collective Consultation and Information
Protective Award
Section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA) – whether and to what extent special circumstances rendered it not reasonably practicable to comply – no error of law in the reasoning of the Tribunal – appeal on this ground dismissed.
Section 189 TULRA – length of protected award – special circumstance, even if not sufficient to excuse compliance, capable of being mitigating factor – observations on approach of Tribunal to assessment of protected award – appeal on this ground allowed and matter remitted for assessment of protected award.
[2010] UKEAT 0411 – 09 – 2202
Updated: 14 August 2022; Ref: scu.402531
EAT CONTRACT OF EMPLOYMENT: Implied term/variation/construction of term
A was employed by B. When B became insolvent C took over B’s business and employed A in circumstances where there was no TUPE transfer. A later left C’s employment and claimed sums allegedly underpaid. C asserted A had been employed on C’s standard terms of employment (less generous than B’s) and was not entitled to the sums claimed. The ET in upholding C’s submission overlooked a letter sent by C to A under which he was told he would in effect be employed on the same terms as before. Appeal allowed.
[2010] UKEAT 0377 – 09 – 2801
Updated: 14 August 2022; Ref: scu.402527
EAT UNFAIR DISMISSAL: S.98A(2) ERA
P RACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
The Employment Tribunal had not imposed a burden on the Respondent of proving that the dismissal of the Claimant was fair. There was such substantial evidence of potential unfairness that the Employment Tribunal as a matter of common sense was entitled to expect the Respondent to call the relevant evidence to rebut the strong prime facie case of unfairness. When the Respondent failed to call such evidence, the Employment Tribunal was entitled to have regard to that failure. That did not mean the Employment Tribunal placed a burden of proof on the Respondent.
The case was remitted to the Employment Tribunal on a further ground of appeal. The Employment Tribunal has failed to deal with the question of whether had there been a fair procedure, the Claimant would have been fairly dismissed in any event, by reason of s. 98(2) of the ERA.
Observations on the importance of parties asking the Employment Tribunal to deal with omissions on its decisions as soon s those decisions are delivered – see Bansi v Alpha Services [2007] ICR 308.
Serota QC J
[2010] UKEAT 0458 – 09 – 0502
Updated: 14 August 2022; Ref: scu.401959
EAT PRACTICE AND PROCEDURE
Striking-out/Dismissal
Review
The Tribunal ought to have convened a hearing in order to determine the Claimant’s application for relief against sanctions – rules 35(3) and 36(1) and St Albans Girls’ School Governing Body v Neary [2009] EWCA Civ 1190 discussed. In any event fairness required that the Tribunal convene a hearing before making a critical finding of fact adverse to the Claimant.
2. In any event the Tribunal’s reasons for that critical finding of fact were inadequate.
[2010] UKEAT 0368 – 09 – 1502
Updated: 14 August 2022; Ref: scu.401961
EAT PRACTICE AND PROCEDURE
Case Management
Perversity
Whether Employment Tribunal wrongly excluded a written witness statement, the witness being said to be unwell and living in Ireland. On appeal, the Employment Appeal Tribunal found that the witness statement was admitted but no weight was attached to it. That was a matter falling within the Employment Tribunal’s wide discretion to regulate its proceedings. Perversity not made out.
[2010] UKEAT 0439 – 09 – 0103
Updated: 14 August 2022; Ref: scu.401962
EAT 1. The Employment Tribunal ought to have held that the dismissal of the Claimant was automatically unfair, because the Respondent did not comply with step 2 of the Standard Procedure.
2. The Employment Tribunal’s reasoning on the Polkey issue was inadequate to explain its finding of a 25% chance of employment at andpound;45,000 per annum. Case remitted and guidance given by reference to Software 2000 v Andrews [2007] IRLR 568 (Elias P) and Virgin Media Ltd v Seddington and Eland [UKEAT/0539/08].
[2010] UKEAT 0315 – 09 – 0802
Updated: 14 August 2022; Ref: scu.401960
The claimant had been employed by the defendant. He sought a payment of bonuses. The defendant sought to imply a term that for a discretionary bonus to be paid, the employee should not be under notice.
Coulson J
[2010] EWHC 375 (QB)
Updated: 14 August 2022; Ref: scu.401925
EAT PRACTICE AND PROCEDURE: Appellate Jurisdiction/Reasons/Burns-Barke
REDUNDANCY
UNFAIR DISMISSAL
RACE DISCRIMINATION
The employer was found not to have acted by reason of race when selecting one of two possible candidates for a post without giving the other any interview, but by ‘slotting in’. ‘Slotting in’ in these circumstances was, however, held to be unfair so as to found a finding of unfair dismissal. The reasons given by the Tribunal showed it had not clearly identified the requirements of the new post or the jobs actually being done by the Claimant and her comparator, without which the finding made (that the reason was not race, but mistake) appeared illogical. Appeal allowed with remission to a fresh tribunal.
Langstaff QC J
[2010] UKEAT 0296 – 09 – 2601
Appeal from – Arhin v Enfield Primary Care Trust CA 20-Dec-2010
The claimant doctor appealed against the refusal of compensatory damages awarded on a finding that she had been unfairly selected for redundancy. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401958
ECJ Social policy – Informing and consulting employees – Directive 2002/14/EC – Transposition of Directive 2002/14/EC by way of legislation and also by way of collective agreement – Effects of the collective agreement with regard to an employee who is not a member of the union which is a party to that agreement – Article 7 – Protection of employees’ representatives – Requirement of more extensive protection against dismissal – No requirement.
C-405/08, [2010] EUECJ C-405/08
Updated: 14 August 2022; Ref: scu.401827
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES:
IMPACT ON COMPENSATION
The Employment Tribunal took an irrelevant consideration into account when making an uplift under s31(3) of the Employment Rights Act 2002 and reducing a basic award under s112(5) of the Employment Rights Act 1996 when it took account of the death of the employer’s wife two years before dismissal: McKindless Group v McLaughlin [2008] IRLR 678 applied.
[2009] UKEAT 0395 – 09 – 0712
Employment Rights Act 2002 31(3), Employment Rights Act 1996 112(5)
England and Wales
Cited – McKindless Group v McLaughlin EAT 2-Apr-2008
EAT Unfair Dismissal: Automatically unfair reasons / Compensation
Automatically unfair dismissal. Uplift under section 31 of the Employment Act 2002. Whether or not reference/remit appropriate. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401695
EAT RACE DISCRIMINATION
Inferring discrimination
The Employment Tribunal were in error in finding an employer guilty of racial harassment by employees when the Claimant had specifically not claimed against the employees and one of the two acts complained of was not the subject of a written grievance and not part of a series of continuing acts. The other act was unproved.
Birtles J
[2009] UKEAT 0199 – 09 – 0312
Updated: 14 August 2022; Ref: scu.401700
EAT SEX DISCRIMINATION:
CONTINUING ACT
An Employment Judge at a CMD has no power to limit a claim of sex discrimination, said to be of a continuing act extending back for the 6 years of the Claimant’s employment, to the last 2 years.
[2009] UKEAT 0280 – 09 – 1812
Updated: 14 August 2022; Ref: scu.401697
EAT JURISDICTIONAL POINTS
CLAIM IN TIME AND EFFECTIVE DATE OF TERMINATION
Employment Tribunal erred in law in concluding that it did not have jurisdiction as it misapplied the provisions relating to the time limit for commencing proceedings where the Claimant reasonably believes that a disciplinary or dismissal procedure is still being pursued.,br />The cross appeal on the substance of the claim, in essence a perversity challenge, fails.
[2009] UKEAT 0334 – 09 – 1112
Updated: 14 August 2022; Ref: scu.401699
EAT RACE DISCRIMINATION: Direct
The black Claimant was employed as a maths teacher subject to a policy for dealing with classroom disruption and racism which counselled against public confrontation with pupils. He did not follow the policy and was given a final warning. He did not change and was dismissed. The Employment Tribunal did not err when it defined the issue as relating to ‘his race’ rather than ‘on grounds of race’. The former is narrower than the latter but both are correct according to how the issue was defined. On the facts the Employment Tribunal was entitled to dismiss the claims.
[2009] UKEAT 0660 – 09 – 0212
Updated: 14 August 2022; Ref: scu.401696
EAT Duty of trust and confidence. Mutuality of obligation. Circumstances in which Employment Tribunal had erred in failing to find that the claimant was in prior repudiatory breach of contract and so not entitled to claim that he had been constructively dismissed.
[2009] UKEAT 0037 – 08 – 1011
Updated: 14 August 2022; Ref: scu.401690
EAT Statutory dismissal procedure. Tribunal erred in finding that there had been a failure to follow the procedure where they had considered only whether or not it had been followed prior to the date of the employers’ decision to dismiss. They should have considered whether or not it had been followed in the course of the procedures that were followed by the employers after that date and before the claimant was actually dismissed since those procedures were capable of remedying the earlier deficiency.
Tribunal also failed to have proper regard to apparent anomaly between date of ‘dismissal’ meeting and termination date in circumstances where an agreement was reached between parties involving payment of money to claimant.
Interpretation of paragraph 13(1) of Schedule 2 to the Employment Act 2002.
[2009] UKEAT 0032 – 09 – 1311
Distinguished – Roberts v Acumed Ltd EAT 25-Nov-2010
roberts_acumedEAT10
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Claimant area sales manager . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401692
EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
The Appellant alleged bias on the part of an Employment Judge and contended that he erred in rejecting his application to recuse himself.
The outcome of the appeal raised two contested issues of fact: whether information regarding the past connection between the Employment Judge and a witness had been given before or after the parties agreed in writing that the hearing could continue with the ET as then constituted (the ‘agreement’) and whether the Employment Judge had private conversations with the Respondent’s counsel.
Having heard evidence from the Appellant and counsel and solicitor for the Respondent and considering all the relevant material including the observations of the Employment Judge and the members of the ET, the EAT were satisfied that the Employment Judge disclosed his past connection with the witness before the waiver agreement was entered into and that no private conversations took place between the Employment Judge and the Respondent’s counsel.
Whilst the past connection with a witness gave the appearance of bias the right to object was effectively waived by the Appellant entering into the agreement. The relevant steps outlined in Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218 were complied with. The appeal was dismissed.
Slade J
[2010] UKEAT 0486 – 09 – 2302
Updated: 14 August 2022; Ref: scu.401681
EAT PRACTICE AND PROCEDURE
TIME FOR APPEALING
Reasons for an Employment Tribunal Judgment were not attached to a Notice of Appeal when the Claimant sought to appeal part of the Judgment because they had not been requested. The Registrar refused an application for extension of time. Although the Claimant did not appeal within 5 days as required by Rule 21(2), exceptionally time for that was extended as the Registrar’s refusal did not cite the Rule and the Claimant did not know it.
On hearing evidence, there was no reason to enlarge time for the substantive appeal.
McMullen QC J
[2009] UKEAT 0194 – 09 – 2909
Updated: 14 August 2022; Ref: scu.401684
EAT UNFAIR DISMISSAL – Reinstatement/Re-engagement
Fingerprint officer found to have been unfairly dismissed. Tribunal ordered reinstatement to role of non-court going fingerprint officer. Appeal against order for reinstatement upheld and case remitted to a freshly constituted Tribunal to consider remedy including whether or not the dismissal was caused or contributed to by any action of the claimant and, if so, whether any compensation awarded should be reduced (Employment Rights Act 1996 s. 23(6)).
[2009] UKEAT 0020 – 09 – 3010
Employment Rights Act 1996 23(6)
Updated: 14 August 2022; Ref: scu.401687
EAT JURISDICTIONAL POINTS: Worker, employee or neither
The Claimant, a newspaper boy, was not employed under a contact of employment, on the facts found by the ET s. 18 of the Children and Young Persons Act 1937 does not provide that a child employed in accordance with the statute is to be regarded as an employee.
[2010] UKEAT 0371 – 09 – 2302
Children and Young Persons Act 1937 18
Updated: 14 August 2022; Ref: scu.401682
EAT PRACTICE and PROCEDURE:
BIAS, MISCONDUCT AND PROCEDURAL IRREGULARITY
Chapman v Simon [1994] IRLR 124 (CA). Did the Employment Tribunal decide the case in favour of Claimant on a basis not advanced by Claimant? Answer; no. Appeal dismissed.
Context: pregnancy discrimination. Observations on Management of Health and Safety at Work Regulations 1999, Regulations 13, 16 and 18.
Peter Clark J
[2009] UKEAT 0187 – 09 – 2310
Health and Safety at Work Regulations 1999
Updated: 14 August 2022; Ref: scu.401685
EAT UNFAIR DISMISSAL:
Reasonableness of Dismissal
The employer only bears the burden of proving the reason for dismissal and employment tribunals should take care when considering the judgment of Arnold J in British Home Stores v Burchell to distinguish between considerations as to whether the employer had a genuine belief as to the reason for dismissal, as to which the employer does near the burden of proof, and questions as to the reasonableness of investigations and disciplinary hearings and as to the reasonableness of a sanction of dismissal, as to which the employer does not have to discharge any burden. Here the employment tribunal had erred by not keeping these considerations separate and thus appearing to consider that it was for the employer to prove that it had acted reasonably throughout.
[2009] UKEAT 0175 – 09 – 2310
Updated: 14 August 2022; Ref: scu.401688
EAT HUMAN RIGHTS
UNFAIR DISMISSAL: Reasonableness of dismissal
The Claimant was employed as a mentor and leader for girls who had barriers to learning in an inner city school. From her school computer she accessed pornography and distributed it to colleagues. She was summarily dismissed. Art 10 ECHR (freedom of expression) was engaged but the School justified the dismissal as proportionate and as pursuing its legitimate aim in protecting children. The Claimant did not have insight into her actions and the School did not share her view that it was enriching for girls to see pornography, and there was no Internet policy in place. The Employment Tribunal was correct to uphold the School’s decision, rejecting the claims for unfair and wrongful dismissal.
[2009] UKEAT 0072 – 09 – 1307
Updated: 14 August 2022; Ref: scu.401683
EAT REDUNDANCY: Fairness
The Employment Tribunal had found lack of warning, lack of consultation, unfair application of selection criteria, unfair criteria and lack of consultation as in absentia employment. Some of the findings were redolent of ‘substitution’ but overall these were findings of fact supporting the conclusion and the appeal was dismissed.
[2009] UKEAT 0074 – 09 – 1610
Updated: 14 August 2022; Ref: scu.401689
EAT UNFAIR DISMISSAL: Constructive dismissal
DISABILITY DISCRIMINATION: Reasonable adjustments
The Tribunal’s finding that claimant not unfairly dismissed upheld where employee resigned on account of conduct of a director of the respondents towards other employees. Appeal against dismissal of disability discrimination claim also dismissed where not established that the respondent knew or ought to have known of the claimant’s disability.
[2009] UKEAT 0025 – 09 – 1711
Updated: 14 August 2022; Ref: scu.401693
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Reinstatement/re-engagement
DISABILITY DISCRIMINATION – Disability-related discrimination
DISABILITY DISCRIMINATION – Direct disability discrimination,br />Claimant, a diabetic, dismissed for watching pornographic material on a computer at work – Defence that he was suffering a hypoglycaemic episode and not responsible for his actions – Defence rejected – Tribunal holds
(a) that dismissal unfair because the decision-taker refused to ‘engage with’ the defence notwithstanding material adduced in support of it; and that if the defence had been properly considered it would have been accepted; reinstatement ordered
(b) that dismissal constituted direct disability discrimination, alternatively disability-related discrimination.
Held:
(1) Tribunal entitled on the evidence before it to reach the conclusions that it did, and to order reinstatement.
(2) The Council’s conduct did not constitute either direct or disability-related discrimination. The fact that the explanation which the Council rejected related to the Claimant’s disability did not mean that the rejection was on the ground of that disability or of a reason related to it. It was necessary that the disability should be (at least part of) the reason for that rejection in the sense explained in such cases as Nagarajan and Taylor v OCS. (Also, if the Claimant failed to establish direct discrimination he would not in any event, since Malcolm, be able to succeed on disability-related discrimination.)
Underhill P J
[2009] UKEAT 0038 – 09 – 0212
Cited – J v DLA Piper UK Llp EAT 15-Jun-2010
EAT DISABILITY DISCRIMINATION – Disability
Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401694
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
The Employment Tribunal erred in law in failing to properly apply s. 18B of the Disability Discrimination Act 1995 to the evidence and to make the necessary findings of fact about reasonable adjustments: Smiths Detection – Watford Ltd v Berriman (UKEAT/0712/04/CK) and Romec Ltd v Rudham (UKEAT/0069/DA) applies.
Birtles J
[2010] UKEAT 0289 – 09 – 1902
Updated: 14 August 2022; Ref: scu.401672
EAT DISABILITY DISCRIMINATION: Disability related discrimination
PRACTICE AND PROCEDURE: Striking-out/dismissal
Disposal of appeal including remission
On a previous appeal the EAT remitted the issue of justification of disability related discrimination for reconsideration by the ET. After the EAT judgment but before the remitted hearing the HL gave judgment in Malcolm v London Borough of Lewisham [2008] IRLR 700. At the remitted hearing the Appellant Chief Constable contended that the ET should consider first whether the Chief Constable had treated the claimant less favourably than others for a reason relating to his disability before, if necessary, considering the issue of justification. The EAT held that the ET did not err in holding that it had no power to consider the issue of less favourable treatment as it was bound by the terms of the order on remission to consider only the issue of justification. Aparau v Iceland Frozen Foods PLC (No 2) [2000] IRLR 196 applied. If this were a case of issue estoppel the relevant facts did not fall within the exception referred to in Arnold v National Westminster Bank PLC [1991] 2 AC 93 relied on by the Chief Constable. Further, the ET did not err in refusing to consider the issue of less favourable treatment at the remitted hearing if and insofar as it relied on the possibility that it may have wished to hear additional evidence if it were to consider that new issue.
Understandably on the then state of authority, until the judgment in Malcolm, the Chief Constable had not asserted that the claimant’s treatment was not less favourable than others. This was not an issue in the ET3, no such issue was identified at a CMC or raised at the liability hearing. No application was made to amend the original Notice of Appeal or the terms of the Order on remission from the EAT. Employment Tribunals are creatures of statute. The ET did not err in refusing to decide an issue which it was not empowered to consider (see Aparau para 24).
[2009] UKEAT 0295 – 09 – 1711
Updated: 14 August 2022; Ref: scu.401691
EAT PRACTICE and PROCEDURE: Chairman Alone
An Employment Judge decided, contrary to the usual practice and the expectations of the parties, to sit alone on a forthcoming PHR to determine the ‘material factor’ defence in two major equal pay multiples.
Held: (a) that the reasons for his decision were flawed, and that the usual practice of hearing such an issue with lay members was sound; and
(b) that the right decision at the time that it was taken would have been to direct a hearing by a full tribunal; but
(c) since the effect of now substituting such a decision would be to necessitate a substantial adjournment, the lesser of two evils was to allow the decision to stand.
[2009] UKEAT 0447 – 09 – 2910
England and Wales
Updated: 14 August 2022; Ref: scu.401686
EAT UNFAIR DISMISSAL: S.98A(2) ERA
The Employment Tribunal on its findings might well have considered that notwithstanding defects in the disciplinary process, that the Claimant was not unfairly dismissed because, even with a fair procedure, on the balance of probabilities, he would have been dismissed in any event. Case remitted for re-hearing before a differently constituted employment tribunal.
[2010] UKEAT 0317 – 09 – 2201
England and Wales
Updated: 14 August 2022; Ref: scu.401652
EAT PRACTICE AND PROCEDURE: Perversity
SEX DISCRIMINATION: Injury to feelings
The Respondent’s perversity challenge to Employment Tribunal liability finding of sex discrimination and unfair dismissal failed.
The Claimant’s appeal against the remedy judgment allowed in relation to ‘cut-off date’ for lost earnings. The Employment Tribunal failed to consider, on the face of their reasons, a material factor, namely whether the new employment secured by the Claimant was coming to an end in any event due to economic circumstances. That point remitted to same Employment Tribunal for further consideration.
[2010] UKEAT 0309 – 09 – 2601
Updated: 14 August 2022; Ref: scu.401653
EAT EQUAL PAY – Material factor defence and justification
EQUAL PAY – Indirect discrimination
Appeal from decision of Employment Tribunal on issues remitted by the Court of Appeal in Armstrong v Newcastle upon Tyne NHS Hospitals Trust [2006] IRLR 124.
Held: The Tribunal was entitled to find:
(a) that the factor relied on by the Respondent was ‘tainted by sex’ because it originated in the Respondent’s intention (on a CCT exercise) to match market rates which it appreciated were depressed by factors peculiar to women (Ratcliffe v North Yorkshire County Council [1995] ICR 833 applied);
(b) that the continuation of the resulting differential in the period to which the complaint related had not been shown to be objectively justified by the costs or industrial relations implications of removing it or by the Respondent’s attempts to phase it out.
Discussion of ratio of Ratcliffe and of whether the Court of Appeal adopted the correct analysis of the necessary steps in considering a ‘GMF’ defence where the factor relied on is alleged to be indirectly discriminatory.
[2010] UKEAT 0069 – 09 – 2202
See Also – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
See Also – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401671