EJ (Approximation Of Laws) Social policy – Directive 2001/23/EC – Transfer of undertakings – Safeguarding of employees’ rights – Concept of ‘transfer’ – Legal transfer of a part of a business to another undertaking – Organisational autonomy following the transfer.
C-466/07, [2009] EUECJ C-466/07
European
Updated: 23 July 2022; Ref: scu.286163
ECJ (Staff Regulations) Officials – Complaint period – Remuneration bulletin) – Admissibility – Appointment – Classification in the higher grade of the career – Articles 25, 26 and 31 (2) of the Staff Regulations
F-101/05, [2006] EUECJ F-101/05
European
Updated: 23 July 2022; Ref: scu.243006
[1992] UKEAT 101 – 92 – 0707
England and Wales
Updated: 23 July 2022; Ref: scu.211055
[1998] UKEAT 798 – 97 – 2503
England and Wales
Updated: 23 July 2022; Ref: scu.206267
[1992] UKEAT 347 – 92 – 1910
England and Wales
Updated: 23 July 2022; Ref: scu.211090
An order restricting the right of a person to make application to an employment tribunal without the consent of the EAT, was properly made where the behaviour of the respondent in the past had justified it, despite the fact that no proceedings had been begun recently. In this case it appeared that the respondent had not accepted that his cases were groundless, and had given no indication that he would not recommence his actions. This was not a breach of his human right to work.
EAT Procedural Issues – Employment Appeal Tribunal
The Honourable Mr Justice Lindsay (President)
Times 23-Jan-2001, Gazette 25-Jan-2001, EAT/1301/99, [2001] IRLR 91
Employment Tribunals Act 1996 33
England and Wales
Followed – Attorney General v D’Souza EAT 19-Jul-2004
EAT Application by the Attorney-General for a Restriction of Proceedings Order pursuant to section 33 of the Employment Tribunals Act 1996 granted. It is not open to the Employment Appeal Tribunal considering an . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.171837
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 explained. The court could look to parliamentary reports to identify the mischief sought to be rectified, but not the means chosen of doing so.
Lord Justice Brooke The Hon Mr Justice Evans-Lombe Lord Justice Sedley
[2004] EWCA (Civ) 84, Times 26-Feb-2004, [2004] ICR 482, [2004] IRLR 287, [2004] 2 All ER 501
England and Wales
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Appeal from – Kingston Upon Hull City Council v Dunnachie; HSBC Bank Plc v Drage EAT 7-Jul-2003
EAT Practice and Procedure – Costs
EAT Practice and Procedure – Costs. . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Jacobs v London County Council HL 1950
The House considered the operation of the doctrine of precedent: ‘there is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also. If it were a proper test to . .
Cited – Wellman Alloys Ltd v Russell 1973
Only economic losses are recoverable following a dismissal. . .
Cited – Campbell v Dunoon HA OHCS 1993
. .
Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Edwards v SOGAT CA 1971
Mr Edwards, who was black, was a skilled worker in a 100-per-cent union printshop. His employers were compelled to dismiss him after his dues had been allowed to fall into arrear through a union official’s neglect. He sued the union in contract. He . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .
Cited – EWP Ltd v Moore CA 1992
The construction favoured, despite the anomaly it produced, by all three members of the court was one which had been the subject of a longstanding decision at first instance and that ‘despite abundant opportunities Parliament has not acted to cure . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – ICTS (UK) Ltd, B Tchoula v B Tchoula, ICTS (UK) Ltd EAT 4-May-2000
EAT Race Discrimination – Injury to Feelings . .
Cited – Regina v Chard HL 1983
The defendant appealed his conviction which had been obtained but based upon the evidence of a ‘super-grass’. His appeal failed, but the witness then withdrew his evidence. The matter was referred back to the court under the section, which then . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Galloway v Galloway HL 1956
The court considered the interpretation of a provision in a statute continued from an earlier statute.
Viscount Radcliffe said: ‘I must confess that I do not lend a sympathetic ear to this last and almost mystical method of discovering the . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Appeal from – Kingston Upon Hull City Council v Dunnachie EAT 23-Jun-2003
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
See Also – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Kingston Upon Hull City Council v Dunnachie; HSBC Bank Plc v Drage EAT 7-Jul-2003
EAT Practice and Procedure – Costs
EAT Practice and Procedure – Costs. . .
Appeal from – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.193426
Kerr LCJ, McCollum LJ and Campbell LJ
[2004] NICA 8
Northern Ireland
Updated: 23 July 2022; Ref: scu.195139
A sentence of imprisonment was entirely appropriate for a case of bullying which came to be sexual assault at the work place carried out in public and over a period of time. It was a public humiliation. The abuse of his position of authority by another defendant who then himself committed a sexual assault, also justified imprisonment. Sentences of 12 and 21 months were entirely appropriate. Women were entitled to protection in the work place.
Times 12-Jan-2001
England and Wales
Updated: 23 July 2022; Ref: scu.88234
An employee of a railway company in crossing the line to a messroom to which he had a right to go, chose to walk over the metals and under a goods train standing in a siding. The train started and he was killed. Held that the accident did not arise out of the man’s employment, but occurred in consequence of his having run an additional and quite unnecessary risk.
Lord Chancellor (Finlay), Viscount Haldane, Lords Dunedin, Atkinson, and Sumner
[1917] UKHL 509, 55 SLR 509
England and Wales
Updated: 23 July 2022; Ref: scu.631001
Master and Servant – Workmen’s Compensation – Compensation – Computation of the Compensation – Average Weekly Earnings – ‘Tips’ Received, under Sanotion of the Employer – Workmen’s Compensation Act 1906 (6 Edw. VII, c. 58), First Sched. (1) (6), (2) ( a).
A railway porter met with an accident under circumstances which entitled him to compensation under the Workmen’s Compensation Act 1906. His employers contended that the compensation due to him fell to be computed on the basis of his weekly wage, viz., 25s. 10d., whereas the arbitrator took into account the average weekly sum received from passengers as ‘tips,’ bringing the average weekly earnings to 37s. 10d.
Held that where a workman systematically receives with the sanction of his employer gratuities which involve no breach of duty to his employer, such gratuities form part of his average weekly earnings.
Penn v. Spiers and Pond Limited, [1908] 1 K.B. 766, approved.
Lords Dunedin, Atkinson, Parker, Sumner, and Parmoor
[1917] UKHL 783, 55 SLR 783
Workmen’s Compensation Act 1906
England and Wales
Updated: 23 July 2022; Ref: scu.631011
Meaning of the word ‘resignation’ as that term is used in the rules of the Principal Civil Service Pension Scheme.
Lord Justice Vos
[2015] EWCA Civ 252
England and Wales
Updated: 23 July 2022; Ref: scu.544717
ECFI Appeal – Civil service – contract staff – fixed term contract – Rules on the maximum commitment of non-permanent staff in the Commission – Decision refusing to renew the contract.
T-143/09, [2010] EUECJ T-143/09
European
Updated: 22 July 2022; Ref: scu.427678
ECFI Appeal – Civil service – Officials – Annual Leave – Posting at half-time for union representation – Unauthorised absence – Deduction of days of annual leave entitlement – Article 60 of the Statute.
T-52/10, [2010] EUECJ T-52/10
European
Updated: 22 July 2022; Ref: scu.427706
EAT DISABILITY DISCRIMINATION: Disability related discrimination / Compensation
Whether the Novacold comparator in cases of disability-related discrimination must be replaced in employment cases by the Malcolm comparator. Answer, yes. Application to facts of this pre-Malcolm case. Effect on compensation. Appeal allowed; case remitted to same Employment Tribunal for further consideration.
Peter Clark J
[2009] UKEAT 0293 – 08 – 0502, [2009] IRLR 277, [2009] ICR 576
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.280455
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
A letter claiming redundancy payment and holiday pay as a contractual entitlement constitutes a grievance and a claim form seeking both should have been accepted.
[2009] UKEAT 0526 – 08 – 0601
England and Wales
Updated: 22 July 2022; Ref: scu.280452
EAT PRACTICE AND PROCEDURE: Appearance/response, Service
A claim sent to Mr Anthony Charles with two errors in the address was not pursuant to Rule 2 ‘sent to the Respondent’ Mr Anthony Chowles. It is unlikely that a telephone call from an ACAS officer would constitute the sending of a claim form or notice of proceedings. A default Judgment cannot be reviewed under rule 34 and 35 but only under the less rigorous rule 33. Default and review judgments and award of andpound;18,310 set aside. Response form accepted. Hearing ordered.
[2009] UKEAT 0473 – 08 – 0801
Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Cited – Euro Hotels (Thornton Heath) Ltd v Alam EAT 20-Apr-2009
EAT PRACTICE AND PROCEDURE: Postponement or stay
PRACTICE AND PROCEDURE: Review
Employment Tribunal gave Judgment at a hearing in the absence of the Respondent. It held a review and refused to vary the . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.280451
EAT CONTRACT OF EMPLOYMENT: Written particulars
UNLAWFUL DEDUCTION FROM WAGES
In determining claims under a discretionary bonus scheme the Employment Judge erred in failing to decide whether the scheme had any contractual content and, if so, what. (Horkulak v Cantor Fitzgerald [2005] ICR 402.) A claim for a bonus under a ‘substantially equivalent’ scheme on a TUPE transfer is for an unquantified amount and cannot be brought under the Employment Relations Act 1996 Section 23, unless Article 3(c) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 applies.
Slade J
[2009] UKEAT 0248 – 08 – 2301, [2009] IRLR 328
Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 3(c), Employment Relations Act 1996 23
Cited – Cantor Fitzgerald International v Horkulak CA 14-Oct-2004
The employee claimed under a bonus clause which ‘contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.’
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.280453
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Tribunal were incorrect in imposing their own view of the fairness of dismissal and failed to consider how a reasonable employer would have acted.
[2009] UKEAT 0152 – 08 – 2201
England and Wales
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.280157
EAT SEX DISCRIMINATION: Burden of proof
The Tribunal in applying Igen and Madarassy were correct in their approach to primary findings and inference, particularly in relation to knowledge of the protected acts and reasons for the detriment.
[2009] UKEAT 0061 – 08 – 2301
Updated: 22 July 2022; Ref: scu.280159
EAT RACE DISCRIMINATION: Inferring discrimination / Burden of proof
The Claimant was made redundant after being placed in a pool of one. He brought proceedings alleging race discrimination and victimisation. In finding for him the Tribunal assumed a hypothetical comparator of a different race but did not consider how such a comparator would have been treated. It merely assumed that because there was a hypothetical comparator the onus of proof had passed and then found the onus had not discharged. The Tribunal also assumed the ‘reverse burden’ applied to the victimisation claim.
Reid QC J
[2009] UKEAT 0031 – 08 – 2601
Updated: 22 July 2022; Ref: scu.280160
EAT PRACTICE AND PROCEDURE: Postponement or stay
Employment Tribunal refused to postpone remedy hearing until after appeals by both parties heard at full hearing by the Employment Appeal Tribunal. Material factor not brought to Employment Judge by party opposing postponement application. Applying Wednesbury principles Judge was thereby led into error. Exercising powers of Employment Tribunal under s35(1) Employment Tribunals Act 1996 appeal allowed and postponement granted.
Peter Clark J
[2008] UKEAT 0478 – 08 – 0512
Employment Tribunals Act 1996 35(1)
See Also – Bascetta v Abbey National Plc EAT 20-Feb-2009
EAT DISABILITY DISCRIMINATION
TRADE UNION RIGHTS
Where the ET relied, crucially on material in coming to its decision which did not form part of the explicitly pleaded case with which the appellant’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279941
EAT RACE DISCRIMINATION: Direct
VICTIMISATION DISCRIMINATION: Protected disclosure
PRACTICE AND PROCEDURE: Estoppel or abuse of process
Direct race discrimination, victimisation and protected disclosure claims. Cause of action estoppel, issue estoppel, Henderson v Henderson estoppel. Whether ET was right in holding that the Appellant was estopped from pursuing claims in a third set of proceedings on the grounds that he was relitigating matters already dealt with or which should have been dealt with in his first and second proceedings.
Cross-appeal as to whether the ET should have found that further claims were estopped instead of concluding that there were special circumstances which prevented the claims from being estopped.
Nelson J
[2008] UKEAT 0583 – 07 – 1812
Updated: 22 July 2022; Ref: scu.279793
EAT SEX DISCRIMINATION: Continuing act
JURISDICTIONAL POINTS: Extension of time: just and equitable
There was no error of law or perversity in the judgment of the Employment Tribunal that the dismissal of Mr Grimshaw was not part of a continuing act of discrimination and that, apart from that relating to dismissal, his complaints of discrimination on grounds of sexual orientation, harassment and victimisation were out of time. Nor did the Tribunal err in concluding that this was not a case where it should exercise its discretion under Regulation 34(4) of the Employment Equality (Sexual Orientation) Regulations 2003 to consider the claims.
Slade J
[2008] UKEAT 0299 – 08 – 2511
Employment Equality (Sexual Orientation) Regulations 2003 34(4)
Updated: 22 July 2022; Ref: scu.279939
EAT EQUAL PAY ACT: Article 141/European law
EPA and Article 141 claims. The appeal and cross appeals give rise to various EPA issues; whether, like Article 141, section 1(6) requires a single source, that is a single body responsible for the inequality of pay which could restore equal treatment, or whether it is a complete code in itself; whether the Respondent Trust, the Whitley Councils or the Secretary of State are single sources on the facts; whether there were common terms and conditions between establishments under section 1(6) EPA; whether the change of terms and conditions in June 2002 was so radical that the contract was rescinded thereby causing the limitation period to start running. The cross appeals related to the same issues, save for the first ground which raised the question of whether the Employment Tribunal should have considered its analysis of terms and conditions only at the date of presentation of the claim or whether it should have done so throughout the six year period.
Nelson J
[2008] UKEAT 0121 – 07 – 1812
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279795
EAT UNFAIR DISMISSAL: Constructive dismissal
The Claimant was found to have been unfairly dismissed. The case was remitted to a different Tribunal in the light of the decision of the Employment Tribunal concentrating their attention on the fact of the particular incident rather than whether the Respondent was in breach of the term of mutual trust and confidence.
[2008] UKEAT 0189 – 08 – 1809
Updated: 22 July 2022; Ref: scu.279938
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
PRACTICE AND PROCEDURE: Perversity
The claimant applied for promotion to a more senior management post. He was disabled by his stammer. The employers made various adjustments to the interview process as a result; but they did not agree to dispense with an interview altogether. The ET found that there had been a failure to make reasonable adjustments.
Burke QC J
[2008] UKEAT 0530 – 07 – 1712
Updated: 22 July 2022; Ref: scu.279940
EAT RACE DISCRIMINATION
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
The Employment Tribunal found that the Appellant had discriminated against the Respondent by failing to consider reinstatement to their register of nurses or to actually reinstate her to the register of nurses or to actually reinstate her to the register. The ET allowed an appeal on the grounds that (a) the point has not been pleaded or argued before the ET and (b) if the ET considered the issue to be a live one it should have clearly alerted the parties to it and given them the opportunity of dealing with it. Observations on amendment in a race discrimination case made following Ministry of Defence v Hay (UKEAT/0571/07/CEA).
Birtles J
[2008] UKEAT 0169 – 08 – 1411
Updated: 22 July 2022; Ref: scu.279792
EAT UNFAIR DISMISSAL: Constructive dismissal
The Claimant was found to have been unfairly dismissed. The case was remitted to a different Tribunal in the light of the decision of the Employment Tribunal concentrating their attention on the fact of the particular incident rather than whether the Respondent was in breach of the term of mutual trust and confidence.
[2009] UKEAT 0395 – 08 – 0901
England and Wales
Appeal From – Oakland v Wellswood (Yorkshire) Ltd CA 30-Jul-2009
The employer was in financial difficulties. A new company was formed by a customer to acquire its assets, and the employees, including the claimant were taken on by the new company. The claimant was dismissed within a year after. On claiming unfair . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279937
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal / Review
Non-compliance with unless order. Automatic strike-out under ET Rule13(2). Additional strike-out order under Rule 18(7)(e) a nullity. Whether automatic strike-out reviewable – if so, whether CPR 3.9 factors need to be applied. Failure to do so rendered review decision erroneous. Appeal allowed; case remitted for review hearing.
Peter Clark J
[2009] UKEAT 0281 – 08 – 0901
Cited – Sunley v HMP Durham EAT 12-Mar-2009
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal / Review
Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and . .
Appeal from – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279936
The petitioner complained that on being moved from his employment at one prison to another, he had been told that his moving expenses would be paid, but that they were not. The respondent said that the terms of his employment were that he was to be mobile, and that as a Crown employee his terms of employment were variable at the instance of the crown.
Held: Wherever there is an excess or abuse of the power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it.
Lord Weir
[1992] ScotCS CSIH – 3, 1992 SCLR 504, 1992 SLT 636, 1992 SC 385
Cited – EBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279559
The former employee challenged a restriction on his post employment career.
Held: The restriction was world-wide and as such tooo wide, and unenforceable.
Lord Ross
[1977] ScotCS CSIH – 4, 1978 SC 16, 1980 SLT 157
Cited – Haynes v Doman CA 1899
A former servant entered into new employment carrying with him the trade secrets, with the constant risk of divulging them to rival manufacturers. The position of the expert witness was challenged.
Held: An expert witness may not give evidence . .
Cited – Vandervall Products Ltd v M’Leod CA 1957
Lord Evershed MR said that it is very rare to find an ex-employee restrained from exercising his trade in a competing business anywhere in the world. . .
Cited – Commercial Plastics Ltd v Vincent CA 1964
When considering whether an employer could misuse information learned in one employment in a later one the court thought that the defendant would be likely, when the need arose, to dredge up from the recesses of his memory’ the particular item of . .
Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279503
The Tribunal was asked to award damages for the loss of statutory protection and also loss of notice period, ‘what is generally referred to as the ‘loss of the right to long notice’ or, more particularly, it is the loss of a right in the event of re-employment to a longer period of notice than that which would arise in that employment compared with that applying to the employment from which he [the employee] was unfairly dismissed.’
Held: On an unfair dismissal, the employee was entitled to compensation for the loss of the statutory protection he had acquired by his employment for two years, though the amount was heavily contingent. In this case the circumstances suggested that such contingences were unlikely to arise. Nevertheless, the standard nominal sum to be awarded for the loss of statutory rights on an unfair dismissal was increased from andpound;20.00 to andpound;100.00.
[1986] IRLR 488, [1987] ICR 1
England and Wales
Considered – Townson v Northgate Group 1981
. .
Cited – Superdrug Stores Plc v Corbett EAT 12-Sep-2006
EAT Unfair Dismissal – Exclusions including worker/jurisdiction.
The Tribunal had awarded an obviously excessive sum of andpound;1420 for loss of statutory rights, without explanation of their reasons for . .
Cited – Hope v Jordan Engineering Ltd EAT 1-May-2008
EAT Unfair dismissal – Compensation – Polkey deduction – Automatically unfair dismissal; section 98A(1) ERA. Application of Polkey deduction to whole of compensatory award. 100 per cent deduction; therefore no . .
Cited – Puglia v C James and Sons EAT 24-Oct-1995
The EAT considered the effect of the receipt of benefits during a period of sickness when calculating loss of earnings, and whether a hearing was properly conducted without the presence of the parties.
Held: There is no procedural irregularity . .
Cited – Taylorplan Services Ltd v Morris and Another EAT 22-Nov-1995
. .
Cited – Armstrong v Automotive Components Dunstable Ltd EAT 31-Oct-1996
. .
Cited – Davis and Another (T/A Samuel Davis (A Firm)) v Derbyshire EAT 9-Mar-2004
EAT Unfair Dismissal
Automatically unfair dismissal by reason of employee having asserted statutory rights. Issues as to proper bases for compensation (net or gross pay in lieu) and mitigation of loss. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278667
ECJ (Opinion) Fixed-term work Directive 1999/70/EC Framework agreement on fixed-term work – Public sector employment – Single contracts and successive fixed-term contracts – Objective reasons – Measures to prevent abuse – Equivalent legal measures – Prohibition of regression – Penalties – Prohibition on conversion of fixed-term contracts to contracts of indefinite duration – Duty to interpret in accordance with directives.
Kokott AG
C-378/07, [2008] EUECJ C-378/07 – O, C-379/07, [2008] EUECJ C-379/07 – O, C-380/07, [2008] EUECJ C-380/07 – O, [2008] EUECJ C-378/07 – O
Directive 1999/70/EC Framework agreement on fixed-term work
European
Opinion – Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis ECJ 23-Apr-2009
ECJ (Social Policy) Directive 1999/70/EC Clauses 5 and 8 of the framework agreement on fixed-term work – Fixed-term employment contracts in the public sector – First or single use of a contract – Successive . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278677
EAT UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal
Employment Tribunal found that the employee had been unfairly dismissed. EAT upheld the appeal, principally on the grounds that the reasoning of the Tribunal was defective. Case remitted to a fresh tribunal.
[2008] UKEAT 0615 – 07 – 1106
England and Wales
Updated: 21 July 2022; Ref: scu.269780
C was employed by R1 but dismissed in contemplation of a transfer of its business to R2. He was awarded compensation for unfair dismissal and discrimination on the grounds of race in a claim against R1 and R2, R2 being liable by virtue of a TUPE transfer. C was never in the actual employment of R2.
During the course of a remedies hearing R1 offered to provide an open reference. A reference to C’s satisfaction was not supplied and C brought proceedings alleging, inter alia that this constituted victimisation by R1 and R2. The EAT upheld the decision of the ET striking out the claim against R2 because [1] he had never sought a reference from R2 and [2] in any event R2 could not be liable under TUPE for the failure of R1 to provide a reference because the transfer had occurred prior to the alleged act of victimisation and liability did not pass to R2 in respect of the alleged post transfer statutory tort of victimisation.
[2007] UKEAT 0469 – 07 – 3110
England and Wales
Updated: 21 July 2022; Ref: scu.263979
Extra Division, Inner House. The appellant said he had been unfairly dismissed and now appealed against a successful appeal to the EAT by the employer.
Lord Kingarth
[2008] ScotCS CSIH – 36, 2008 GWD 20-333, 2008 SCLR 578
Scotland
Updated: 21 July 2022; Ref: scu.268800
[2008] EWHC 498 (Ch), [2008] BCC 588, [2008] 2 All ER (Comm) 964, [2008] 2 P and CR DG4, [2008] BPIR 492
England and Wales
Updated: 21 July 2022; Ref: scu.266181
(Staff Regulations)
F-1/05, [2006] EUECJ F-1/05
European
Updated: 21 July 2022; Ref: scu.245655
A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the Directive was published, or the date by which it had to be transposed into national law, or when the domestic legislation was actually passed.
Held: In that situation it was from the time when it ought to have been transposed. Until that time there was a more limited obligation not to interpret domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by the Directive.
‘More specifically, recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.’
V Skouris, P
C-212/04, [2006] EUECJ C-212/04, [2006] ECR I-6057, [2007] All ER (EC) 82, [2006] IRLR 716, [2006] 3 CMLR 30
European
Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Cited – Paterson v Commissioner of Police of the Metropolis EAT 23-Jul-2007
EAT PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families CA 14-Dec-2009
The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 . .
Distinguished – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Cited – Hughes v The Corps of Commissionaires Management Ltd CA 8-Sep-2011
The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call.
Held: The . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.243014
EAT Unfair Dismissal – Compensation
Appellant was employed by Respondent’s predecessor but dismissed for redundancy. Respondent took over the predecessor’s (insolvent) business. DTI accepted Appellant’s dismissed not connected to transfer and paid Appellant’s notice pay and redundancy pay. Respondent then re-employed Appellant and agreed to treat her as if her employment was continuous. ET held no TUPE as far as Appellant was concerned (unlike those who had not been dismissed before the advent of Respondent), and when Respondent unfairly dismissed Appellant, her basic award should be calculated by reference to her employment only with the Appellant.
Held: no error of law.
Reid QC J
[2006] UKEAT 0120 – 06 – 0706, UKEAT/0120/06
England and Wales
Updated: 21 July 2022; Ref: scu.243053
EAT EAT held that the statutory extension of time under Regulation 15(1) Employment Act (Dispute Resolution) Regulation 2004 means 3 months and not 3 months less a day.
Birtles J
[2006] UKEAT 0183 – 06 – 2706
Employment Act (Dispute Resolution) Regulation 2004 15(1)
England and Wales
Updated: 21 July 2022; Ref: scu.242960
EAT Compensation for unfair dismissal- assessment of economic loss.
Was employee’s medical condition after her constructive dismissal caused or aggravated by employer’s repudiatory conduct or by her pre-existing medical condition?
In determining what caused the employee’s loss, was the proper approach to apply the ‘but for’ test or to assess in percentage terms the prospect that the employee would have become ill and unable to work even if there had been no repudiatory conduct by the employee? Answer depends on whether it is past or future loss.
Were findings of Employment Tribunal perverse?
Silber J
[2006] UKEAT 0199 – 06 – 2706
England and Wales
Updated: 21 July 2022; Ref: scu.242959
Notice of duration of final warning was to be construed strictly as against the employer.
Times 21-Feb-1995, [1994] UKEAT 43 – 94 – 2012
England and Wales
Updated: 21 July 2022; Ref: scu.210323
Wall LJ
[2001] UKEAT 1003 – 01 – 2410
England and Wales
See Also – Attrill (Deceased) v Wightlink Ltd EAT 4-Jul-2002
EAT Procedural Issues – Employment Tribunal
EAT Procedural Issues – Employment Tribunal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.204274
[1993] UKEAT 118 – 92 – 1207
England and Wales
Updated: 21 July 2022; Ref: scu.210724
[1993] UKEAT 149 – 93 – 2306
England and Wales
Updated: 21 July 2022; Ref: scu.210615
[1992] UKEAT 469 – 90 – 1407
England and Wales
Updated: 21 July 2022; Ref: scu.211049
[1993] UKEAT 90 – 92 – 1901
England and Wales
Updated: 21 July 2022; Ref: scu.210415
[1992] UKEAT 163 – 92 – 0704
England and Wales
Updated: 21 July 2022; Ref: scu.210962
[1993] UKEAT 182 – 92 – 1401
England and Wales
Updated: 21 July 2022; Ref: scu.210382
[1993] UKEAT 318 – 92 – 1501
England and Wales
Updated: 21 July 2022; Ref: scu.210427
[1993] UKEAT 303 – 91 – 0202
England and Wales
Updated: 21 July 2022; Ref: scu.210485
[2001] UKEAT 468 – 01 – 1809
England and Wales
Updated: 21 July 2022; Ref: scu.204196
Three journalists were dismissed on notice in circumstances where the redundancy provisions of their contract applied. Those provisions stated that the journalists should receive ‘any entitlement under the pension scheme’. That scheme provided that ‘A member having at least 10 years of pensionable service and retiring with the consent of the company . . shall be entitled to a deferred pension . .’. The issue was whether the journalists had so retired ‘with the consent of the company’.
Held: The court discussed the authorities, and Brightman J said: ‘according to the ordinary use of language, an employee who is dismissed is not, prima facie, an employee who is retiring with the consent of those who dismiss him.’ and ‘Ought this prima facie meaning to be displaced in the present case by reference to the wording of other rules? First, there is the supposed anomaly of the post-pension age employee who stays on at the company’s request and is (perhaps accidentally) deprived of his pension when ultimately the company gives notice to terminate his employment. Then there is the reference to the ex-Western Morning News journalist, who is ‘dismissed’ without becoming entitled to a pension under the early retirement clause. Do these provisions provide a sufficient justification for departing, in the early retirement clause, from the prima facie meaning of the word ‘retiring’? ‘After weighing, as best I can, the arguments advanced on both sides, I feel reluctantly compelled to decide against the plaintiffs’ claim. My reasons are as follows: (1) It would, in my judgment, be a misuse of language to describe a journalist who is given notice by the company as ‘retiring with the consent of the company’. The expression ‘a member retiring’ had it appeared on its own, would in my view, have prima facie excluded a case where the employee is dismissed. This is all the more so where it is coupled with the words ‘with the consent of the company’, because a person cannot, in any meaningful sense be said to consent to his own act; he can only consent to the act of another. (2) It would be natural for the company, when establishing a non-contributory pension fund, to exclude a dismissed employee from a deferred pension . . If the plaintiffs’ argument is correct, the most delinquent employee would be entitled to the same reward in terms of a deferred pension as the most loyal employee . . (3) I do not think that the plain meaning of the early retirement clause can be displaced by reference to the supposed anomaly under paragraph (ii) of rule C1 (the post-pension age employee). It may be that there is an anomaly under that provision which the company may wish to remedy under its power to alter the rules . . ‘
Brightman J
(1971) 11 Knight Industrial Report 413
England and Wales
Cited – AGCO Limited v Massey Ferguson Works Pension Trust Limited, Bradbury, Chater CA 17-Jul-2003
An employee sought payment under his pension scheme on taking redundancy at the employer’s request. The scheme did not make explicit provision for payment in such circumstances.
Held: The court had to begin with the words used. The kernel of . .
Cited – Dorrell v May and Baker Ltd 1991
The employee took early retirement due to incapacity. He was dismissed. The question was whether he was entitled to a pension under the incapacity clause which spoke of a member who ‘retires on account of incapacity’, in which case he got an . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.185198
An employee was dismissed for incapacity. The rule provided: ‘Upon retirement . . due to incapacity arising from ill-health’ Para 21 had also been premised ‘Upon retirement’, viz at, after or within ten years of the normal retirement date. Other rules, however, did not speak of retirement but provided for a member who ‘leaves . . Service . . or . . is dismissed . . Honourably . . and through no fault of his own or if his services are dispensed with owing to a reduction in or alteration of staff’, and who ‘leaves . . service . . of his own free will or is dismissed for fraud or misconduct’. The essential issue was whether ‘Upon retirement’ referred to retiring in its intransitive sense, or retiring in its transitive sense, or both.
Held: (Lawton LJ) The court distinguished the circumstances dealt with in the rules dealing with retirement and those dealt with in the rules which spoke in different terms of leaving service or being dismissed etc. The use of ‘retirement’ in para 21 had an intransitive meaning, and that applied elsewhere as well. ‘ . .his submission amounts to this, that the words ‘upon retirement’ in paragraph 22 have the same meaning as the words ‘leaves the service of the Institution’ as used in para 25. It would again be very odd drafting if ‘upon retirement’ in one paragraph had the same meaning as ‘leaves the service of the Institution’ in another paragraph.
Lawton LJ Fox LJ and Kerr LJ
Unreported, 8 November 1983
England and Wales
Cited – AGCO Limited v Massey Ferguson Works Pension Trust Limited, Bradbury, Chater CA 17-Jul-2003
An employee sought payment under his pension scheme on taking redundancy at the employer’s request. The scheme did not make explicit provision for payment in such circumstances.
Held: The court had to begin with the words used. The kernel of . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.185200
The employee took early retirement due to incapacity. He was dismissed. The question was whether he was entitled to a pension under the incapacity clause which spoke of a member who ‘retires on account of incapacity’, in which case he got an immediate pension, or under the general provision applicable to members whose service terminated early ‘without retirement benefits becoming payable’, in which case he was entitled to a deferred pension.
Held: There was no incapacity within the meaning of the rule, since the employee could continue service in some different capacity with the employer. The rule which dealt with normal retirement, early retirement on account of incapacity, early retirement not on account of incapacity, and late retirement, in each case was concerned with a concept whose meaning was ‘beyond doubt. It means the act of an employee choosing to retire from work. In contradistinction to that, Rule 11 is headed ‘Termination of Service’ . . No distinction is drawn in it between the various ways in which a member’s service may be terminated.’
Mr Julian Jeffs QC
(1991) PLR 31
England and Wales
Cited – Young v Associated Newspapers 1971
Three journalists were dismissed on notice in circumstances where the redundancy provisions of their contract applied. Those provisions stated that the journalists should receive ‘any entitlement under the pension scheme’. That scheme provided that . .
Cited – AGCO Limited v Massey Ferguson Works Pension Trust Limited, Bradbury, Chater CA 17-Jul-2003
An employee sought payment under his pension scheme on taking redundancy at the employer’s request. The scheme did not make explicit provision for payment in such circumstances.
Held: The court had to begin with the words used. The kernel of . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.185199
Lord Justice Bean
[2021] EWCA Civ 67
England and Wales
Updated: 21 July 2022; Ref: scu.657379
Unfair Dismissal : Reasonableness of dismissal – The Tribunal erred in law in substituting its own view for that of the employer (1) when characterising the reason for dismissal (Abernethy v Mott, Hay and Anderson [1974] ICR 323 and Sutton and Gates (Luton) Ltd v Boxall [1979] ICR 67 applied) and (2) when reaching its conclusions as to whether the dismissal was unfair.
Richardson J
[2011] UKEAT 0038-11-1601
England and Wales
Updated: 21 July 2022; Ref: scu.639655
(Judgment) Civil service – Officials – Article 45 of the Staff Regulations – 2014 promotion exercise – General implementing provisions for Article 45 of the Staff Regulations – Lists of officials proposed for promotion by the Directors-General and heads of service – Omission of the applicants’ names – Possibility of challenging before the Joint Promotion Committee the list of officials proposed for promotion – Consideration of the comparative merits of the officials eligible for promotion – Opinions adopted by a joint body – Obligation to state grounds
F-113/15, [2016] EUECJ F-113/15
European
Updated: 21 July 2022; Ref: scu.567317
ECJ (Judgment) Reference for a preliminary ruling – Social policy – Directive 2003/88/EC – Article 7 – Right to paid annual – Retirement at the request of the party concerned – Worker failing to use up all his entitlement to annual paid leave before the termination of his work relations – National legislation excluding allowance in lieu of paid annual leave not taken – Sick leave – Public servants
ECLI:EU:C:2016:576, [2016] EUECJ C-341/15
European
Updated: 21 July 2022; Ref: scu.567413
ECJ Judgment – Civil service – Officials – Article 45 of the Staff Regulations – 2014 promotion exercise – General implementing provisions for Article 45 of the Staff Regulations – List of officials proposed for promotion by the Directors-General and heads of service – Omission of the applicant’s name – Possibility of challenging before the Joint Promotion Committee the list of officials proposed for promotion – Consideration of the comparative merits of the officials eligible for promotion – Opinions adopted by a joint body – Obligation to state grounds
F-112/15, [2016] EUECJ F-112/15
European
Updated: 21 July 2022; Ref: scu.567326
ECJ (Judgment) Public service – Temporary staff – Succession commitments under various statutes to several EU institutions – Interruption by a period of unemployment – continue Affiliation to the Joint Sickness Insurance Scheme of the Union – New commitment – Article 13 of CEOS – medical examination prior to hiring – Article 32 of the CEOS – No declaration by the person concerned an illness which he was already affected – Discovery later by AHCC – retroactive application of a medical reserve a time five – Dispute – Referral to the invalidity Committee – Duty of loyalty – AHCC’s decision to deprive any recruiter from the institution for a period of six years
S. Van Raepenbusch, P
F-132/15, [2016] EUECJ F-132/15
European
Updated: 21 July 2022; Ref: scu.567324
(Judgment) Civil service – Contract staff – Pensions – Article 11 (2) of Annex VIII to the Staff Regulations – Transfer to the Union pension scheme of previously acquired pension rights under national schemes – Proposals for a subsidy of annuities made by the AHCC – Invitation to contact the administration for explanations and to discuss the appropriateness of making the transfers – Acceptance by the transfer agents of their national pension rights without prior consultation with the AHCC – Character transfer order – Subsequent discovery of the ‘minimum subsistence’ rule – fourth paragraph of Article 77of the Staff Regulations – Duty of care – Insufficient provision of information provided by AHCC when forwarding annuity bonus proposals – Claim for damages – Failure to comply with the requirements of the pre-litigation procedure – Inadmissibility
F-126/15, [2016] EUECJ F-126/15
European
Updated: 21 July 2022; Ref: scu.567320
ECJ (Judgment) Public service – Open competition – Notice of competition EPSO / AD / 293/14 – Insufficient number of points to the test of’ talent evaluator ‘- Non-admission to the assessment center – Rejection of the application for review
F-123/15, [2016] EUECJ F-123/15
European
Updated: 21 July 2022; Ref: scu.567322
Lord Wright said that repudiation of a contract is a serious matter not to be lightly found or inferred.
A party who intended to fulfil a contract but only in a manner substantially inconsistent with his obligations and not in any other way would have repudiated the contract
Lord Wright
[1940] 3 All ER 60, (1940) 56 TLR 825
England and Wales
Cited – Mason v Huddersfield Giants Ltd QBD 15-Jul-2013
The claimant rugby league player complained of his dismissal under a clause allowing such for behaviour which might bring the club into disrepute. He had engaged in a celebratory evening out involving a naked run. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.560125
Christopher Pymont QC
[2011] EWHC 1460 (Ch)
England and Wales
Updated: 21 July 2022; Ref: scu.440707
ECJ Civil service – Personnel European Investment Bank – Assessment – Promotion – Jurisdiction of Court – Admissibility – Implied rejection – Internal directive – Staff Representative – Principle of respect for the rights of defense.
-59/09, [2011] EUECJ -59/09
European
Updated: 21 July 2022; Ref: scu.430710
EAT UNFAIR DISMISSAL – REASONABLENESS OF DISMISSAL
The Respondent made an error in the application of the third stage of its absence policy and procedure: but for the mistake it would not have moved the Claimant on to the fourth stage of the procedure, where he was dismissed. The Tribunal held that the dismissal was for some other substantial reason; that the mistake by the Respondent’s manager was a reasonable one; and that the dismissal was fair. The appeal was allowed. The Tribunal was correct to hold that the dismissal was for some other substantial reason: Wilson v Post Office [2000] IRLR 834 applied. However, the Tribunal ought to have had regard to the responsibility of the Respondent’s personnel department for providing support to the manager to ensure the fair and consistent application of the policy, this being a relevant resource for the purposes of section 98(4). Moreover the Tribunal was entitled to take into account that the issuing by the Respondent of a warning at the third stage was manifestly inappropriate having regard to its own procedures: Stein v Associated Dairies Ltd [1982] IRLR 447 and Tower Hamlets HA v Anthony [1989] IRLR 394 and Co-operative Retail Services v Lucas [1993] UKEAT/145/93 discussed. Appeal allowed. Decision substituted that the dismissal was unfair.
Richardson J
[2011] UKEAT 0442 – 10 – 0803
England and Wales
Updated: 21 July 2022; Ref: scu.430456
Lord President Dunedin set out the liability of an employer: ‘Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either – to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or – to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.’Caparo Industries
Lord President Dunedin
[1909] ScotCS CSIH – 5
Scotland
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.279292
[1906] ScotCS CSIH – 1
Updated: 21 July 2022; Ref: scu.279269
An assistant minister in the United Free Church said that he was an employee of the church.
Held: He was not. Lord Kinnear said that the status of an assistant minister ‘is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’
Lord Kinnear
[1913] ScotCS CSIH – 3, (1914) SC 16
Cited – Methodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.279310
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
PRACTICE AND PROCEDURE: Perversity
The claimant applied for promotion to a more senior management post. He was disabled by his stammer. The employers made various adjustments to the interview process as a result; but they did not agree to dispense with an interview altogether. The ET found that there had been a failure to make reasonable adjustments. Held on appeal:
(1) that the ET’s conclusion that an expert’s report advised dispensing with a formal interview unless it could not reasonably be avoided was perverse; that was not what the expert had advised.
(2) that the ET’s conclusion that there was no oral content in the post for which the claimant had applied was also perverse
(3) that the ET’s assertion that if a disabled employee honestly asserted an entitlement to an adjustment the employers were bound to make it unless they could establish good reason for not doing so was wrong in law.
The ET’s decision reversed.
Comments made
(1) on the unjustifiable use of strong and vivid language in ET judgments HM Prison Service v Johnson [2007] IRLR 95 followed
(ii) on the undesirability of the ET, when asked a question or to supply notes by the EAT, providing self-justificatory or argumentative responses.
Burke QC J
[2008] UKEAT 0530 – 08 – 1712
Cited – HM Prison Service v Johnson EAT 6-Aug-2007
EAT Disability Discrimination – Less Favourable Treatment / Reasonable Adjustments / Justification
The Claimant was a prison psychologist who developed a depressive illness amounting to a disability within . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278872
EAT UNFAIR DISMISSAL: Polkey deduction
The Tribunal wrong to reject Polkey in view of genuineness of redundancy and that respondents would have been in the pool.
[2008] UKEAT 0348 – 08 – 1609
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278804
EAT PRACTICE AND PROCEDURE: Service
This is an appeal from the judgment of 21 January 2008 of Employment Judge Davey, who decided that the amended claim form, which now named Bennington Training Services as Respondent, was out of time and that it was reasonably practicable for Mr Ryan to have brought the claim within time.
[2008] UKEAT 0345 – 08 – 1111
Updated: 21 July 2022; Ref: scu.278810
EAT JURISDICTIONAL POINTS:
Claim in time and effective date of termination
Extension of time: reasonably practicable
Employment Judge failed to make key findings at to why claim form not filed within the time limit.
[2008] UKEAT 0367 – 08 – 1610
Updated: 21 July 2022; Ref: scu.278805
EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
Whether ET gave appearance of bias – fair-minded observer test – on the evidence and material before the EAT that case was not made out. Appeal dismissed.
Peter Clark J
[2008] UKEAT 0415 – 07 – 1012
Updated: 21 July 2022; Ref: scu.278811
Sedley LJ, Arden LJ, Moore-Bick LJ
[2008] EWCA Civ 1446
England and Wales
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278818
EAT PRACTICE AND PROCEDURE: Costs
UNFAIR DISMISSAL: Polkey deduction
Failure to consider application of Polkey principle to compensating award for unfair dismissal. Inadequate reasoning to explain full costs order. Case remitted to same tribunal to consider Polkey and costs.
[2008] UKEAT 0249 – 08 – 1111
Updated: 21 July 2022; Ref: scu.278808
EAT JURISDICTIONAL POINTS: Extension of time: just and equitable
Just and equitable extension of time. Employment Tribunal failing to take into account relevant factors. Appeal allowed; decision reversed; time extended and case remitted for hearing on merits.
[2008] UKEAT 0117 – 08 – 0407
Updated: 21 July 2022; Ref: scu.278802
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Tribunal failed to make findings regarding whether the employers had adopted a reasonable marking system for redundancy selection.
[2008] UKEAT 0233 – 08 – 2409
Updated: 21 July 2022; Ref: scu.278803
The claimant appealed against refusal of an award of an enhanced pension provision.
[2008] EWCA Civ 1377
England and Wales
Updated: 21 July 2022; Ref: scu.278779
EAT PRACTICE AND PROCEDURE: Estoppel or abuse of process
Tribunal correct in applying issue estoppel to claim of disability no new facts had emerged since previous tribunal decision that he was not a disabled person.
Ansell J
[2008] UKEAT 0252 – 08 – 0312
Updated: 21 July 2022; Ref: scu.278431
EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
Claim for detriment under section 48 of the Employment Rights Act 1996 does require a grievance letter to launch proceedings. Schedule 2, paragraph 15, Employment Act 2002 only applies to the protected disclosures provision in Part 4A of the Employment Rights Act 1996.
[2008] UKEAT 0274 – 08 – 1710
Employment Act 2002, Employment Rights Act 1996 4A
Updated: 21 July 2022; Ref: scu.278353
EAT PRACTICE AND PROCEDURE: Restricted reporting order
Restricted Reporting Order relating to allegations of sexual misconduct – Whether Tribunal entitled to vary order in order to permit naming of Claimants against the objection of the alleged perpetrators.
Held:
(a) that there were sufficient grounds to justify reconsideration by the Tribunal, notwithstanding a previous order prohibiting the naming of the Claimants – Hart v English Heritage [2006] ICR 655 considered;
(b) that it was in principle open to the Tribunal to prohibit the naming of the Claimants on the basis that their identification would necessarily constitute ‘identifying matter’ as regards the alleged perpetrators – R v London North Industrial Tribunal, ex p. Associated Newspapers Ltd [1998] ICR 1212 considered; but
(c) that on the facts of the case it was not established that the identification of the Claimants would necessarily constitute identifying matter.
Observations on the meaning of ‘likely’ and ‘members of the public’ in s. 11 (6) of the Employment Tribunals Act 1996.
[2008] UKEAT 1415 – 08 – 1011
Employment Tribunals Act 1996 11(6)
Cited – Regina v London North Industrial Tribunal, ex parte Associated Newspapers Ltd 1998
An Employment Tribunal considering applying the rule allowing a restriction on reporting a case, must have regard to the legislative purpose and also to the importance of the principles of freedom of the press and open justice. . .
Cited – Hart v English Heritage (Historic Buildings and Monuments Commision for England) EAT 7-Feb-2006
EAT Leave to amend claim to include certain unfair dismissal complaints rejected by Tribunal Chairman. Attempt made before another Chairman to contend that the amendment should be permitted because it merely gave . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278351
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions required them to wear items that could not be so concealed. She brought claims of direct and indirect discrimination on grounds of religious belief, as well as harassment discrimination. All these claims failed. She appealed against the finding of indirect discrimination only. The Employment Tribunal had held that there was no such discrimination because there was no evidence that a group of Christians were put at a particular religious disadvantage when compared with non-Christians. The EAT dismissed the appeal and held that this was a cogent and justified conclusion displaying no error of law.
Elias P
[2008] UKEAT 0123 – 08 – 2011, [2009] IRLR 78, [2009] ICR 303
England and Wales
Appeal from – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .
Cited – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
At EAT – Eweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
At EAT – Eweida And Chaplin v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and questions to the parties . .
At EAT – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
At EAT – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
ECHR Article 9-1
Manifest religion or belief
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their . .
Cited – Grainger Plc and Others v Nicholson EAT 3-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 July 2022; Ref: scu.278203
EAT JURISDICTIONAL POINTS: Excluded employments
The issue in this case is whether the Employment Tribunal was entitled to refuse to review three earlier decisions in which it had concluded that the respondent Authority could not claim state immunity because the claimant fell into one of the exceptions in section 4 of the State Immunity Act 1978. It then subsequently awarded the claimant compensation for unfair dismissal and other breaches of statutory employment rights. The EAT, whilst recognising that considerable leeway will be given to foreign states who seek to raise the issue of immunity late in the day, nonetheless determined that in the particular circumstances of this case the Tribunal was entitled to refuse to review the decisions.
In any event, it appeared highly likely that the state had waived any immunity which it might otherwise have been able to claim.
Elias P J
[2008] UKEAT 0185 – 08 – 2411
Updated: 19 July 2022; Ref: scu.278236
EAT JURISDICTIONAL POINTS: Extension of time: just and equitable
In considering whether it is just and equitable to exercise its discretion under Section 68 of the Race Relations Act 1976 to extend the time for the submission of the Originating Application the Employment Tribunal should have regard to the total period of delay.
[2008] UKEAT 0259 – 08 – 2509
Cited – Chohan v Derby Law Centre EAT 2-Mar-2004
EAT Employment Tribunal claim brought out of time because of Solicitor’s negligent advice. Application of British Coal Corporation -v- Keeble [1999] IRLR 337. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 July 2022; Ref: scu.278234
EAT EQUAL PAY ACT: Equal value
JURISDICTIONAL POINTS: Claim in time and effective date of termination
Equal pay claims: local authority home helps. Time bar. Claims in respect of inequality of pay between 1998 and February 2005 presented in December 2007. In February 2005, home helps took up posts of social care officers. Tribunal satisfied that these were new contracts and six month period to lodge claims ran from that date. Appeal refused.
[2008] UKEAT 0026 – 08 – 2810
Updated: 19 July 2022; Ref: scu.278201
EAT JURISDICTIONAL POINTS: Fraud and illegality
The claimant was a foreign student studying in the UK, who worked in breach of the conditions imposed as a term of his student visa. He worked longer hours than were permitted in term time. He alleged that his employers were in breach of the minimum wage. The employers took as a preliminary point that the contract was illegal. The Employment Tribunal rejected that contention.
The EAT upheld the employer’s appeal in part, holding that part of the contract was lawful and could be severed from the unlawful part. The claimant could recover with respect to the periods out of term and at other times when there were no restrictions on his hours, but he could not recover with respect to the periods during term time when he was knowingly infringing the hours requirement.
Elias P J
[2008] UKEAT 0397 – 08 – 2011, [2009] IRLR 128
Updated: 19 July 2022; Ref: scu.278202
Civil servants formed a trade union which entered into collective negotiation with a local authority resulting in an agreement. Union members then sued the authority for failing to fulfil the agreement. The local Court found in favour of the members. The Court of Cassation first quashed the ruling, on the basis that, even though there was no legal bar preventing civil servants from forming unions, they were not, as the law stood, authorised to enter into collective agreements. The District Court then confirmed its earlier judgment on the basis that, despite the fact that the domestic statute contained no express provision affording unions formed by civil servants the right to enter into collective agreements, this omission had to be remedied in the light of international treaties such as the relevant Convention of the International Labour Organisation, which had already been ratified by Turkey. The Court of Cassation again quashed the judgment of the District Court. It ruled that, at the time the union was formed, the applicable law did not permit civil servants to form trade unions. The union could not rely on the international labour conventions that dealt with such matters as they had not yet been incorporated into domestic law and no implementing legislation had been enacted. The Court of Cassation concluded that the union did not have legal personality or the capacity to enter into a collective agreement. As one consequence of the ruling, following an audit of the local authority’s accounts by the Audit Court, the members of the union were required to reimburse the additional income they had purportedly received as a result of the defunct collective agreement.
Held: (Grand Chamber) The Court reviewed the development of its interpretation of the requirements of article 11: ‘The development of the Court’s case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, ss 39; Swedish Engine Drivers’ Union, cited above, ss 40; and Schmidt and Dahlstrom v. Sweden, 6 February 1976, ss 36, Series A no. 21).
As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see National Union of Belgian Police, cited above, ss 39; Swedish Engine Drivers’ Union, cited above, ss 40; and Schmidt and Dahlstrom, cited above, ss 36).
As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers’ Union). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlstrom).
Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members’ interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (Wilson, National Union of Journalists and Others).
As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade-union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, whilst in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law.
From the Court’s case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tum Haber Sen and Cinar, cited above), the prohibition of closed-shop agreements (see, for example, Srensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (Wilson, National Union of Journalists and Others).
This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ss 100, ECHR 2003-II; and Selmouni v. France [GC], no. 25803/94, ss 101, ECHR 1999-V).’
34503/97, [2008] ECHR 1345, (2009) 48 EHRR 54, [2009] IRLR 766
European Convention on Human Rights
Cited – Metrobus Ltd v Unite the Union CA 31-Jul-2009
The union sought leave to appeal against an interim injunction restraining it from calling a strike. It now called in aid also its members’ Article 11 Human Rights. The company had questioned whether the ballot met the requirements of the 1992 Act. . .
Judgment – Demir And Baykara v Turkey ECHR 13-Dec-2011
Supervision of execution of final judgment . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 July 2022; Ref: scu.278149