EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
The employment judge held that the two claimants had complied with the statutory grievance procedures and that the Tribunal had jurisdiction to hear their claims for constructive unfair dismissal. He did so, however, in part by treating an ET1 as constituting a grievance. That was contrary to the EAT decision in Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07.
The EAT held that notwithstanding this error, there was other material which justified the conclusion that Mrs Hunter had raised the relevant grievance and that her subsequent claim essentially raised the same complaint. However, the position was not clear with respect to Mrs Fox. The case was remitted to the same employment judge to determine whether the Tribunal had jurisdiction or not.

Judges:

Elias P J

Citations:

[2008] UKEAT 0031 – 08 – 0311

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – Gibbs (T/A Jarlands Financial Services) v Harris EAT 27-Feb-2007
EAT Practice and Procedure – Preliminary issues
The Employment Tribunal was wrong to conclude that an ET1 could constitute a written grievance for the purpose of satisfying section 32 of the Employment Act . .
Cited – Cyprus Airways Ltd v Lambrou EAT 1-May-2007
EAT Practice and Procedure – 2002 Act and Pre-action Requirements
Unfair Dismissal – Constructive Dismissal
On 14 October 2004 the Claimant claimed constructive unfair dismissal arising out of four . .
Cited – Galaxy Showers Ltd v Wilson EAT 10-Nov-2005
The EAT upheld the view of an ET that a resignation letter giving notice of termination was a sufficient compliance with the requirement to set out the grievance in writing. If an employee had raised a grievance about alleged misbehaviour by the . .
Cited – Weare v HBOS plc EAT 28-Oct-2008
EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The EAT upheld an appeal by the employee against a decision of the Employment Tribunal which held that it had no jurisdiction to hear certain . .
Cited – Smith v Network Rail Infrastructure Ltd EAT 24-Apr-2007
EAT Disability Discrimination – Reasonable adjustments
Where a Claimant submits a grievance relating to a continuing discriminatory act, s32 Employment Act 2002, and Schedule 2 para 6 do not require him to . .

Cited by:

Cited – Suffolk Mental Health Partnership NHS Trust v Hurst and Others CA 7-Apr-2009
The employee’s union had written to the employer to say that the employee had a claim for back pay under the 1970 Act. The employer appealed a finding that this was sufficient to launch the claim.
Held: The appeal failed. It was wrong to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.277572

EAT PRACTICE AND PROCEDURE: Costs
Tribunal failed to make sufficient findings to support a costs order. Withdrawal of proceedings by itself was insufficient.

Citations:

[2008] UKEAT 0157 – 08 – 1808

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277633

manchester_mccallEAT2008

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Majority view of Tribunal that the investigation was insufficient and dismissal was an impermissible sanction was incorrect in that they did not apply test of reasonable employers but imposed their own subjective view.

Judges:

Ansell J

Citations:

[2008] UKEAT 0230 – 08 – 0511

Links:

Bailii

Citing:

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.

Employment

Updated: 19 July 2022; Ref: scu.277554

EAT VICTIMISATION DISCRIMINATION: Whistleblowing
The issue raised on this appeal was whether the whistle blowing provisions contained in section 43A to section 43M of the Employment Rights Act by the Public Information Disclosure Act 1998 afford protection for disclosure that does not reveal any ‘wrongdoing’ or ‘failure’ by the employer or person for whom the employer is responsible?
The answer is ‘yes’ as it provides protection for disclosure that reveals a ‘wrong doing’ or ‘failure’ by any person.

Judges:

Silber J

Citations:

[2008] UKEAT 0275 – 08 – 1610

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277405

EAT UNFAIR DISMISSAL
Automatically unfair reasons
Polkey deduction
The Tribunal were correct in reducing compensation by 100% in an automatic unfair dismissal where the breaches of procedure would have made no difference to the decision to dismiss for redundancy.

Judges:

Ansell J

Citations:

[2008] UKEAT 0271 – 08 – 0809

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277404

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Dismissal for gross misconduct – argument based on disparate treatment of alleged comparators failed on the facts.

Citations:

[2008] UKEAT 0205 – 08 – 2507

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277398

EAT PRACTICE AND PROCEDURE: Amendment
Tribunal correct in refusing leave to amend response very near to final hearing as Claimant had not altered his case as to liability in witness statements.

Judges:

Ansell J

Citations:

[2008] UKEAT 0336 – 08RN UKEAT – 2

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.277403

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Agency relationships
Tribunal found that Claimant was employed by end – user. On appeal, the Employment Appeal Tribunal held that the Tribunal had not applied the correct test in law (James v Greenwich London Borough Council [2008] ICR 545) and that on their findings in fact, the circumstances whereby the Claimant’s services were provided to the end- user were adequately explained by the express contractual arrangements. The Claimant had not become an employee of the end – user.

Judges:

Smith L

Citations:

[2008] UKEAT 0476 – 07 – 0411

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277406

EAT UNFAIR DISMISSAL: Mitigation of loss
The Tribunal incorrectly applied a percentage reduction to losses by reason of failure to mitigate. The Tribunal should have fixed a date when they believed the Claimant would have found employment and calculated losses accordingly.

Judges:

Ansell J

Citations:

[2008] UKEAT 0247 – 08 – 2908

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277402

EAT Practice and Procedure
The issue was whether the modified grievance procedure had been satisfied in relation to a claim for larger payments when no specific mention of such payment had been made in any of the grievance documentation. A grievance letter was to be interpreted in an unsophisticated and more technical way and it was inappropriate to use as a yardstick of construction the judicial definition of pay in Degnan and Ors v Redcar and Cleveland Borough Council [2005] IRLR 615.

Citations:

[2008] UKEAT 0240 – 08 – 1208

Links:

Bailii

Citing:

Cited – Degnan and others v Redcar and Cleveland Borough Council CA 17-Jun-2005
Equal Pay claims. . .
Cited – D Holc-Gale v Makers UK Ltd EAT 30-Nov-2005
EAT Practice and Procedure – 2002 Act and pre-action requirements. Regulation 14 2004 Regulations; excluding discrimination Questionnaires from definition of statutory grievance. When failure to comply with SGP . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.277401

EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation
1. The claimant handed in a letter of resignation to the respondents and he was then given a period of about 30 minutes to reconsider his decision.
2. He confirmed that he wished to resign but he later sought to change his mind.
3. The claimant claimed that he had been unfairly dismissed.
4. The Employment Tribunal held that the claimant had resigned and therefore no claim could be brought for unfair dismissal.
5. The claimant appealed contending that that there were special circumstances which existed in this case which showed that he had not validly resigned and that he could bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278 as he resigned in the heat of the moment.
Held: The Employment Tribunal were correct to hold that this was a valid resignation and that the claimant could not bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278

Judges:

Silber J

Citations:

[2008] UKEAT 0313 – 08 – 2710

Links:

Bailii

Statutes:

Employment Appeal Tribunal (Amendment Rules) 2001, Employment Appeal Tribunal (Amendment Rules) 2004, Employment Rights Act 1996 95

Citing:

Cited – Sothern v Frank Charlesly and Co CA 1981
Where an employee gives an unequivocal and unambiguous notice of his resignation, then that can be accepted by an employer and there is no dismissal. Where the unambiguous words are said in a moment of anger or in the heat of the moment or where . .
Cited – Greater Glasgow Health Board v Mackay SCS 1989
The Court was asked to consider whether an employee, who wrote out a letter of resignation, had actually resigned in the light of the special state of anxiety of the employee when he wrote that letter.
Held: Lord Wylie said: ‘where possible . .
Cited – Sovereign House Security Services Ltd v Savage CA 1989
S was employed as a Security Officer. After discovering a cash shortage, his superior, P, rang him and suspended him forthwith pending police investigations. S responded by saying ‘I am not having any of that, you can stuff it, I am not taking the . .
Cited – Kwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .

Cited by:

Cited – Willoughby v C F Capital Plc EAT 13-Jul-2010
EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
Whether employee was dismissed – unambiguous words of dismissal used by employer – Tribunal erred in law in holding that by reason of ‘special . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.277181

EAT EQUAL PAY ACT: Case Management
PRACTICE AND PROCEDURE: Disclosure
In the course of the claim of one class of employees in multiple equal pay litigation, the Employment Tribunal ruled that documents relating to a desktop job evaluation exercise were subject to litigation privilege and need not be disclosed by the employers. On the employees’ appeal,
Held
i) applying Three Rivers (No 6) that the documents fell within the scope of litigation privilege
ii) the Employment Tribunal were entitled to find that the purpose of the exercise was not for implementation but for Counsel’s brief
iii) Article 6 of the Convention did not affect the common law as to privilege; Mecalf v Mardell [2003] floated the possibility of a re-examination of the common law principles but no more.

Citations:

[2008] UKEAT 0282 – 08 – 1007

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.277179

EAT WORKING TIME REGULATIONS
The claimant, who worked as a security officer, made a claim for compensatory rest under the Working Time Regulations.
Under regulation 12 of those regulations, it is provided that ‘where a worker’s daily working time is more than six hours he is entitled to a rest break’. Such a break is for 20 minutes where, as in the present case, there is no collective agreement or workforce agreement in force.
Security guards fall outside these provisions but regulation 24 provides that:
‘Where the application of any provision of these Regulations is excluded by regulation 21 or 22 . . and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break –
a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and
b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety’.
The issues are:
A. if under the 1998 regulations, a worker was entitled to a rest break for each period of six hours which he works or whether he is only entitled to one period of rest for however long he works in excess of 6 hours (Issue A);
B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B); and
C. Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? (Issue C)
As to issue A, a worker is entitled to one period of rest for how ever long he works in excess of 6 hours.
As to issue B, the Employment Tribunal has to adopt a two-stage approach in which it has first to be decided if the claimant’s case was such that it was not ‘possible for objective reasons [to] grant such [an equivalent period of compensatory] rest’. If the answer was in the affirmative in the sense that it was possible, the claimant would be entitled to an equivalent period of compensatory rest but if the answer was in the negative in the sense that it was not possible, then pursuant to regulation 24(b), the respondent will have to ‘afford the claimant such protection as may be appropriate in order to safeguard the [claimant]’.
As to issue C, a claim can only be made in respect of a prescribed period of 3 months from the time when the claimant should have been given a compensatory rest period unless the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply in which case the prescribed period is extended to six months.

Citations:

[2008] UKEAT 0196 – 08 – 2210

Links:

Bailii

Statutes:

Employment Act 2002 (Dispute Resolution) Regulations 2004 15

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.277155

EAT VICTIMISATION DISCRIMINATION: Whistleblowing
The issue raised on this appeal was whether the whistle blowing provisions contained in section 43A to section 43M of the Employment Rights Act by the Public Information Disclosure Act 1998 afford protection for disclosure that does not reveal any ‘wrongdoing’ or ‘failure’ by the employer or person for whom the employer is responsible?
The answer is ‘yes’ as it provides protection for disclosure that reveals a ‘wrong doing’ or ‘failure’ by any person.
A teacher read a report in a local newspaper from which she identified a suspect in a rape case as a student she had interviewed for a course run by her employer. She passed information about him to the police. She claimed that in consequence she was branded a trouble maker by her employer because her disclosures to the police had involved the employer in a criminal matter, and claimed that the disclosures were protected disclosures made in accordance with Section 43H. The ET dismissed her complaint on the ground that the disclosure of information revealed no wrongdoing on the part of the employer and was not ‘a qualifying disclosure’. Allowing the appeal, the Appeal Tribunal pointed out that there was no limitation whatsoever in the statute on the people or entities whose wrongdoings could be the subject of qualifying disclosures. A wrongdoer was simply identified as a ‘person’.

Judges:

Silber J

Citations:

[2008] UKEAT 0275 – 08 – 0710

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – BP Plc v Elstone and Another EAT 31-Mar-2010
EAT JURISDICTIONAL POINTS
VICTIMISATION DISCRIMINATION: Protected disclosure
The central question in this appeal was whether an employee/worker who complained of suffering a detriment from his current . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.277157

EAT EQUAL PAY ACT: Case Management
PRACTICE AND PROCEDURE: Disclosure
In multiple equal pay claims the ET found that documents relating to a 2004 job evaluation exercise were privileged and need not be disclosed by the employers. The appeal, insofar as it attacked that conclusion, failed; see my first judgment.
This second judgment deals with the attack on the Employment Tribunal’s further conclusion that that privilege had not been waived.
Held
1) the Employment Tribunal were entitled to conclude that there had been no waiver
2) there had not been a partial waiver by waiver of other documents of the same class which made it unjust for the employers to rely on privilege
3) Article 6 did not alter the common law position.

Citations:

[2008] UKEAT 0282 – 08 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.277180

EAT CONTRACT OF EMPLOYMENT: Whether established
Tribunal Chairman correct not to imply contract between agency worker and end user.

Judges:

Elias P

Citations:

[2008] UKEAT 0132 – 08 – 2608

Links:

Bailii

Statutes:

Employment Rights Act 1996

Cited by:

Appeal from – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.277153

EAT PRACTICE AND PROCEDURE: Application/claim
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether applicable
Employment Judge refusing to ‘accept’ claim for redundancy payment (and associated claims) under rule 3 of the Rules on basis that claimant had not properly pursued the statutory grievance procedure – Held that Judge wrong to refuse to accept claim because claimant had raised an arguable case that it was not reasonably practicable for her to do so: See reg. 6(4) of the Dispute Resolution Regulations.

Judges:

Underhill P J

Citations:

[2008] UKEAT 0290 – 08 – 1107

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.277152

EAT Unfair dismissal – Mitigation of Loss – Polkey deduction – Employment Tribunal did not adequately deal with the issue of mitigation, whether by reference to the ill health of that Claimant or otherwise (Gardiner-Hill, Savage v Saxena) and made no finding on Respondent’s alternative Polkey defence. Remedy decision remitted to same Tribunal.

Judges:

Burton J

Citations:

UKEAT/0218/06, [2006] UKEAT 0218 – 06 – 2610

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.266664

Citations:

[1992] UKEAT 169 – 90 – 0810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.211132

Citations:

[1997] UKEAT 427 – 96 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.207220

A claim had been brought alleging discrimination. The parties had been anonymised. An order had been made for only a redacted form of the judgment to be published. The claimant appealed, saying that it should be redacted.

Citations:

[2019] EWCA Civ 1417

Links:

Bailii

Statutes:

Employment Tribunals Act 1996 10, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013

Jurisdiction:

England and Wales

Citing:

Cited – Ameyaw v Pricewaterhousecoopers Services Ltd EAT 4-Jan-2019
No power in ET to remove record from Register
PRACTICE AND PROCEDURE – Restricted reporting order
PRACTICE AND PROCEDURE – Case management
Practice and Procedure – Case Management – Restricted Reporting Order/Anonymity – Rule 50 ET Rules 2013
The Appellant applied for an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.640509

Judges:

Lord Justice Underhill VP CA

Citations:

[2019] EWCA Civ 1402

Links:

Bailii

Statutes:

Working Time Regulations 1998

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.640145

VICTIMISATION DISCRMINATION
UNFAIR DISMISSAL – Automatically unfair reasons
UNFAIR DISMISSAL – Polkey deduction
UNFAIR DISMISSAL – Compensation
The Claimant before the Tribunal had brought proceedings principally for protected interest disclosure and dismissal, and also so-called ordinary unfair dismissal, wrongful dismissal and holiday pay.
The allegations were wide ranging and concerned the Claimant’s employment as a Special Needs Primary School Teacher in a specialist autistic unit attached to a primary school. The Claimant, who is an American citizen, came to the UK on a three year contract of employment as a sponsored Tier 2 Migrant Visa. The post had been identified nationally as a skilled job which could not be filled by a settled worker.
The Claimant made a number of complaints and allegations during the course of her employment. She did not ask the Respondents to apply to renew her visa and the Respondents decided that it would not take any steps to do so of its own volition and decided not to ask her if she would like them to apply on her behalf.
She was dismissed on the date her fixed term contract ended which was the date her Tier 2 Migrant Visa was due to expire. At the Employment Tribunal hearing, the Tribunal conceded that the dismissal had been unfair as they had since learnt that the Claimant’s visa had been temporarily renewed when she had applied independently to the Home Office for a visa which would not tie her to a particular employer, through a different route – the FLR(O) procedure.
The Tribunal rejected the Claimant’s claims of whistleblowing detriment and dismissal and limited her compensatory award for unfair dismissal to the 6 week period her visa was extended before her application was rejected with no right of appeal.
On appeal the Tribunal’s Judgments of both Liability and Remedy were largely upheld.
Although the Tribunal had not had the benefit of Kilraine v London Borough of Wandsworth [2016] IRLR in analysing whether the disclosures amounted to information, and wrongly concluded that some of the disclosures were not protected or qualifying disclosures, the Tribunal had nonetheless made findings about the reason why the alleged detriments had occurred. They found that the reasons for the treatment were not materially influenced by the matters relied on by the Claimant as disclosures and dismissed the claim. Even though it’s reasoning could have been clearer, the Tribunal was entitled to reach its conclusions on the dismissal and the detriments it considered.
The Tribunal was also entitled to conclude that the Claimant’s compensatory award should be limited to the period of her entitlement to work in the UK. Since the Claimant did not ask the Respondent to apply for an extension of her visa on her behalf, it was just and equitable to limit compensation to the date the Claimant could work legally in the UK in all the facts and circumstances of the case.
However, the Tribunal had failed to make findings on 2 of the detriments relied on and the case is remitted back on limited terms to the same Tribunal to make findings and determine those two matters.

Judges:

Stacey J

Citations:

[2018] UKEAT 0033 – 18 – 2012)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.631857

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal did not err when it found the Respondent unfairly dismissed the Claimant, holding him 55% to blame.

Citations:

[2008] UKEAT 0009 – 08 – 0109

Links:

Bailii

Citing:

Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
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.

Employment

Updated: 19 July 2022; Ref: scu.276813

redrow_buckboroughEAT2008

EAT JURISDICTIONAL POINTS: Worker, employee or neither
WORKING TIME REGULATIONS: Worker / Holiday pay
As in Redrow Homes (Yorkshire) Ltd v Wright 2004 IRLR 720, the issue in this appeal was whether workmen engaged by Redrow to work on their building sites were workers for the purposes of Reg. 2(1) of the Working Time Regulations, or were self-employed contractors. The standard contract between Redrow and the workmen had been adapted by Redrow so as to remove the provisions which led to their losing on that issue in 2004; the men agreed to provide such labour as was necessary to maintain the require rate of progress but were not obliged to perform the labour themselves.
Held, upholding the Employment Tribunal’s decision in favour of the men, that:
(1) the Employment Tribunal’s finding that the obligations provision in the contract was a sham did not contain any error law in the light of Consistent Group v Kalwak in the EAT and the CA.
(2) In any event the obligations provisions imposed on the men a duty either to provide the required labour themselves or to find someone else to do so; and thereby the men were under a contract personally to execute work and thus fell within Reg. 2(1).

Citations:

[2008] UKEAT 0528 – 07 – 1010, [2009] IRLR 34

Links:

Bailii

Cited by:

Cited – Launahurst Ltd v Larner EAT 18-Aug-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
For 13 years the Claimant worked installing double glazing for the Respondent. In 2004 he signed a ‘contract supply agreement’ though matters continued . .
Cited – Launahurst Ltd v Larner CA 30-Mar-2010
The company appealed against a finding that the respondent was its employee and not an independent contractor, and that its contract with him was a sham.
Held: The employer’s appeal succeeded. The EAT had erred: ‘there was plainly a procedural . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276814

EAT UNFAIR DISMISSAL
Majority of the Tribunal found that the procedures were unfair. The investigation was inadequate and accordingly the conclusion that the employee had committed misconduct was not based on reasonable grounds. The employment judge dissented. The employer’s appeal was upheld. The EAT found that the majority had essentially substituted their view for that of the employer. There was plenty of evidence from which the employers were justified in concluding that the claimant had admitted committing the misconduct in issue. In the circumstances further investigation would have been superfluous. The conclusions of the majority were not sustainable in law.
A finding of fair dismissal was substituted.

Citations:

[2008] UKEAT 0015 – 08 – 2309

Links:

Bailii

Citing:

Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
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.

Employment

Updated: 19 July 2022; Ref: scu.276812

EAT TIME OFF: Parental leave/dependant
The employee was told on 8 December that her childminder was unavailable for 22 December. She did all she could to make alternative care arrangements but was unsuccessful. She asked the employers for the day off, under s57A(1)(d) of the Employment Rights Act 1996, but they refused and subsequently disciplined her when she stayed at home to look after her children. The Employment Tribunal found that she had been subjected to a detriment for taking time off when, under s57A(1)(d), she was entitled to take that time off.
Held on appeal by the employers (1) that there was no warrant for the insertion of the words ‘sudden and’ or ‘in emergency’ into s57A(1)(d). Although Directive 96/34 which led to the introduction of s57A into the 1996 Act provided for narrow protection, Parliament had provided wider protection than the minimum required by the Directive; (2) that the passing of time between the employee’s discovery of the need for making alternative arrangements and the taking of time off was to be considered in the application of the word ‘necessary’ s57A(1); the word ‘unexpected’ in s57A(1)(d) was an ordinary word when applied on the facts of each case and should not be supplemented by the further words proposed; (3) the Employment Tribunal had made a factual decision which was not based on any error of law.

Judges:

Burke QC J

Citations:

[2008] UKEAT 0093 – 08 – 2706, [2009] IRLR 28, [2009] ICR 116

Links:

Bailii

Statutes:

Employment Rights Act 1996 47C 49(1)(a) 57A, Maternity and Parental Leave Regulations 1999 19, European Community Parental Leave Directive 96/34

Citing:

Cited – Qua v John Ford Morrison (Solicitors) EAT 14-Jan-2003
The claimant appealed the refusal of her claim for a finding that her dismissal was automatically unfair. She had been employed for less than a year, and had taken several absences to care for her child. She claimed protection saying that her . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276685

EAT JURISDICTIONAL POINTS: Continuity of employment
Company A dismissed the employee and went into creditors’ voluntary liquidation. Six weeks later, when the employee was absent due to a temporary cessation of work pursuant to the Employment Rights Act 1996 s212(3)(b), and so that time counted towards one year’s continuous employment under s108, Company B hired him. Both companies were held in majority shareholding by the same person who dismissed and hired the employee. The Employment Judge erred in holding at a PHR that at the time of the re-hiring Company A did not exist. Both were associated employers over which the majority shareholder had control pursuant to s231(b), notwithstanding the role of the liquidator in A.

Citations:

[2008] UKEAT 0241 – 08 – 1808

Links:

Bailii

Statutes:

Employment Rights Act 1996 212(3)(b) 231(b)

Citing:

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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276686

EAT EQUAL PAY ACT: part time pensions
The Teachers’ Pension Scheme did not distinguish part-timers and full-timers, save for one rule which applied to teachers who retire and return to work. If the work was part-time it was not reckonable for pension, whereas full-time was. The agreed disadvantaged group was of part-time returners. As a matter of logic, the advantaged group, making up the rest of the pool, was full-time returners. A pool which included those under retirement age and still working did not test the discrimination alleged by the Claimant. Employment Tribunal Judgment reversed.
Over 13 years, an average proportion of 42.45 per cent of the disadvantaged pool were men and an average proportion of 57.55 per cent were women, a disparity of roughly 15 per cent. The EAT, agreeing with the Employment Judge’s tentative view, held the Claimant had shown disparate impact. The preliminary points were decided in the Claimant’s favour 14 years after the rule applied to her. The claim was remitted for Hearing of the case and of the Respondents’ defence of justification.

Citations:

[2008] UKEAT 0046 – 08 – 0310

Links:

Bailii

Citing:

Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276689

EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours a night, 7 nights a week, was entitled to treat those hours as working time for the purposes of the Working Time Regulations, and for periods when she was not actually sleeping to treat them as attracting the national minimum wage.
Employment Tribunal judgment reversed and remitted to the same Employment Tribunal for remedy.

Judges:

McMullen QC J

Citations:

[2008] UKEAT 0159 – 08 – 0310

Links:

Bailii

Statutes:

Working Time Regulations 1999, National Minimum Wage Regulations 1999

Citing:

Cited – MacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
Cited – Sindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana ECJ 3-Oct-2000
Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health . .
Cited – Landeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
Cited – Gallagher and others v Alpha Catering Services Ltd CA 8-Nov-2004
The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276688

EAT Working Time Regulations: Holiday pay
Unlawful Deduction from Wages
Practice and Procedure: Postponement or stay
The Employment Tribunal declined to stay a holiday pay claim made under Part II of the ERA (because it would have been out of time if made under WTR) until the House of Lords decided CIR v Ainsworth. The reason was that they doubted whether the issue as to whether such a claim could be made by that route, as opposed to the sick pay/holiday pay issue, was before the House of Lords. Held, on the employer’s unopposed appeal, that the former issue was before the House of Lords (albeit not referred to the European Court of Justice), that if the ET had been aware that was so they would have been bound to have granted a stay, which was much more consistent with the overriding objective, and that the claim should be remitted to the ET for them to impose a stay.

Judges:

Burke QC J

Citations:

[2008] UKEAT 0184 – 08 – 1107

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276508

EAT Following a preliminary hearing in a case in which the Claimant had been successful in a claim that he had been unfairly dismissed but unsuccessful in claims that he had suffered racial discrimination and victimisation, and had sought to appeal, the appeal was dismissed.

Citations:

[2007] UKEAT 0001 – 07 – 0805

Links:

Bailii

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276506

EAT PRACTICE AND PROCEDURE
Striking-out/dismissal
Right to be heard
The ET proposed to strike out the Claimant’s claims and sent a Rule 19(1) letter to that effect. The Claimant asked for an oral hearing. The Employment Judge declined and, after considering written submissions only, struck out the claims.
It was conceded on appeal that the Employment Judge had, under Rule 18(6) and (7) no power to refuse an oral hearing; but the Respondents argued that, in reliance on Bache [2000] ICR 313 CA I should decide that an oral hearing would have achieved nothing because the Employment Judge was unarguably right. Held that the denial of an oral hearing required by the Rules was too fundamental for the Bache approach to be applied even though the Employment Judge’s reasons were very likely to be right. Remitted to a fresh Employment Judge.

Citations:

[2008] UKEAT 0086 – 08 – 0307

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276511

EAT PRACTICE AND PROCEDURE: Case management
Tribunal error in failing to order a stay of Tribunal proceedings, to allow a claim for bonus monies in the High Court to be determined where the issue of whether there was a dismissal and the reasons for dismissal were issues common to both proceedings.

Citations:

[2008] UKEAT 0321 – 08 – 1209

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276425

EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation
(1) Whether the Employment Tribunal failed to consider one of the bases on which the employee had alleged that she had been dismissed.
(2) Whether the Employment Tribunal’s decision that changes in the employee’s terms and conditions of employment were not so fundamental as to amount to the termination of her contract of employment (Hogg v Dover College) was perverse.

Citations:

[2008] UKEAT 0130 – 08 – 2907

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276507

EAT Fixed Term Employment Regulations
The Secretary of State for Children Schools and Families who employs teachers only in the European Schools may not claim as objective justification for imposing a 9 year fixed term rule on his employees, the existence of the rule in Staff Regulations adopted by the European Schools pursuant to a 1994 Statute.

Citations:

[2008] UKEAT 0095 – 08 – 3009

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276512

EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
PRACTICE AND PROCEDURE: Time for appealing
PRACTICE AND PROCEDURE: New evidence on appeal
Strike out. Want of jurisdiction. New point taken on appeal by way of amendment to Notice of Appeal. Whether appeal properly instituted; whether amendment ought to be permitted.

Citations:

[2008] UKEAT 0207 – 08 – 2207

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276419

EAT UNFAIR DISMISSAL: Exclusions including worker/jurisdiction
Continuity of employment – correct question to be asked under s212(3)(a) Employment Rights Act. Capability to do the job for which he was employed. Appeal allowed and case remitted.
Separate appeal; application under R3(10) dismissed (PA1135/07/DA).

Citations:

[2008] UKEAT 1135 – 07 – 1807

Links:

Bailii

Citing:

See Also – Kennaugh v Lloyd-Jones (T/A Cheshire Tree Surgeons) EAT 14-Jul-2006
EAT Unlawful Deduction from Wages – Exclusions,br />Informal hearing leading to concession by unrepresented Respondent which may have resulted from erroneous representation by Chairman. Failure to appreciate . .

Cited by:

See Also – Kennaugh v Jones EAT 1-Oct-2009
EAT UNFAIR DISMISSAL
Constructive dismissal
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Whether the Claimant was constructively dismissed by the Respondent. Questions to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276421

EAT Time off
Time off for safety representative training. Construction of Regulation 4(2) and 11(1) Safety Representatives and Safety Committee Regulations 1977. Appeal and cross-appeal allowed. Case remitted for rehearing by fresh Employment Tribunal.

Citations:

[2008] UKEAT 0563 – 07 – 0307

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.276423

EAT PRACTICE AND PROCEDURE: Costs
The Employment Judge did not err in principle or omit a relevant or consider an irrelevant factor when dismissing Respondents’ applications for costs when much of a sex discrimination case was struck out.

Citations:

[2008] UKEAT 0140 – 08 – 1407

Links:

Bailii

Citing:

Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276422

Judges:

Buxton LJ, Maurice Kay J, Sir Martin Nourse

Citations:

[2004] EWCA Civ 231, [2004] IRLR 471

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.276320

The defendant sought leave to appeal against an order restricting him from doing any work for his intended employer before completing the period of garden leave imposed by his current employer.
Held: The appeal for which permission is sought had no prospect of success.

Judges:

Morritt, Chadwick LJJ, Charles J

Citations:

[2000] EWCA Civ 517, [2001] Masons CLR 75, [2000] UKCLR 879, [2001] IRLR 77

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Symbian Ltd v Christensen ChD 8-May-2000
The court granted an injunction to the company restraining Mr Christensen from undertaking or continuing employment by, or the provision of advice, assistance or services to the Microsoft Corporation at any time before 16th September 2000, being the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.276308

EAT UNFAIR DISMISSAL: Constructive dismissal
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether infringed
The Respondent committed a repudiatory breach of the Claimant’s contract of employment. The Claimant elected to wait until receipt of a letter the Respondent promised to send and provided a written grievance in accordance with s32 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. The grievance referred to the matters giving rise to the repudiatory breach. The promised letter amounted to a further breach of his contract of employment. The Claimant accepted the earlier repudiatory breach on receipt of this letter. In cross-examination the Claimant said that the receipt of the letter was the trigger or last straw which led to his accepting the repudiatory breach, and the Employment Tribunal accepted his evidence in this regard. The Respondent argued that the Employment Tribunal lacked jurisdiction to hear the claim because the grievance did not refer to the receipt of the letter as a ‘last straw’. The Employment Tribunal held that the Claimant was under no obligation to refer to the letter in his grievance because it was merely the occasion that led him to accept the earlier repudiatory breach which had not been waived. The EAT upheld this decision.

Citations:

[2008] UKEAT 0090 – 08 – 0809

Links:

Bailii

Citing:

Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.273205

EAT PRACTICE AND PROCEDURE: Appearance/response
A company director who signed a form ET3 on behalf of his company could not complain that he personally had been unaware of the proceedings.

Citations:

[2008] UKEAT 0102 – 08 – 0107

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273201

EAT DISABILITY DISCRIMINATION: Disability
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
Where a claimant had been medically examined by a jointly instructed expert who credited his symptoms, and who had not been ordered to attend the hearing, it was unfair for the claimant to be cross-examined on the basis that he was exaggerating his symptoms.

Citations:

[2008] UKEAT 0081 – 08 – 0107

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273202

EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether applicable
The statutory grievance procedures are inapplicable where the dispute results in the employee’s dismissal.

Citations:

[2008] UKEAT 0232 – 08 – 0207

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273203

EAT UNFAIR DISMISSAL: Contributory fault
Compensation for unfair dismissal. Claimant dismissed after he ‘lost it’ and punched a broke a double glazed window at his place of work. Tribunal found he had contributed to his dismissal to the extent of 20%. Finding on contribution set aside on appeal as being without adequate reasons and remitted to the same tribunal to consider of new.

Citations:

[2008] UKEAT 0002 – 08 – 2406

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273199

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Automatically unfair reasons
RACE DISCRIMINATION
Direct
The Employment Tribunal did not err
(a) in upholding the employee’s automatically unfair dismissal claim, yet awarding him no compensation as dismissal was inevitable.
(b) in dismissing his ordinary unfair dismissal claim.
(c) in rejecting his race discrimination claim.

Citations:

[2008] UKEAT 0382 – 07 – 0807

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273200

Underhill J said: ‘where an employee has made a positive choice to operate arrangements which have the effect of depriving the Revenue of payment to which it is entitled, contracts giving effect to those arrangements will be unlawful notwithstanding that the employee may genuinely have believed them to be lawful. The position might be different where the initiative came from the employer; but these are not the facts of that case.’ and ‘But even where – surprisingly – they [employees] can show that they were not seeking such advantages [perceived tax advantages] I see nothing objectionable in the law taking the view that workers who actively choose to employ sophisticated arrangements of this kind must take the consequences of their actions, whether they appreciated those consequences or not.’ This particular contract was unenforceable since: ‘[The payment] was not truly a payment to Jonor Services at all, but was a diversion of part of the [employee’s] remuneration, so we cannot escape the conclusion that there was here a misrepresentation to the Revenue, and, to that extent, a fraud upon the Revenue.’

Judges:

Underhill J

Citations:

[2007] UKEAT 0005 – 07 – 0606, UKEAT/0005/07/DA, UKEAT/0005/07

Links:

Bailii, EATn

Citing:

Cited – Salvesen v Simons EAT 22-Oct-1993
Lord Coulsfield referred to the moral dimension applicable where an employee and employer sought to evade taxes by pretending tat the employee was in fact self-employed: ‘It is not necessarily inequitable that persons who seek to take advantage out . .

Cited by:

Cited – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.273213

EAT UNFAIR DISMISSAL: Compensation Contributory fault
Where an employee suffered illness partly as a result of the employer’s conduct and partly for other reasons an Employment Tribunal must make careful findings and follow the guidance of cases such as Seafield Holdings Ltd (trading as Seafield Logistics v Drewett [2006] ICR 1413. It should also attempt to determine whether the illness was caused by breach of the implied alleged duty of trust and confidence or by wrongful dismissal; see GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 and GMB Trade Union v Brown [2007] UKEAT/0621/06.

Citations:

[2008] UKEAT 0098 – 08 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.273196

EAT CONTRACT OF EMPLOYMENT: Implied term/variation/construction of term
Tribunal failed to make key findings of fact in a constructive dismissal case as to whether incidents had occurred leading to a breakdown of trust and confidence.

Citations:

[2008] UKEAT 0210 – 08 – 0508

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273204

EAT CONTRACT OF EMPLOYMENT
JURISDICTIONAL POINTS: Worker, employee or neither
Reference under s.11 of the Employment Rights Act 1996 regarding statement of commencement date of employment. Written contract issued in 2001 showing start date of 1 October 2001 but claimant having worked for the respondents since 1990. Employment Tribunal’s judgment that 1 October 2001 was an accurate statement of the commencement date challenged on appeal as not being supported by adequate reasons. Appeal upheld and case remitted to a freshly constituted tribunal.

Judges:

Lady Smith

Citations:

[2008] UKEAT 0052 – 07 – 1906

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.273197

EAT UNFAIR DISMISSAL: Automatically unfair reasons
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke

The employee claimed that she had been dismissed for making protected disclosures and that her dismissal was unfair under s98A(1) and 98(4) of the Employment Rights Act 1996 (ERA). She failed on protected disclosure; the dismissal was unfair under s98A(1) but if a proper procedure had been followed, she would have been dismissed fairly for misconduct; she was entitled to a basic award. On appeal held:-
The Employment Tribunal’s conclusion that the employee did not reasonably believe in the truth of the information disclosed was not reached in error of law, it had correctly applied – Darnton and Babula.
There was no perversity.
Although the Employment Tribunal had originally failed to address disclosures to the employers as opposed to disclosures to outside recipients (a) the answers given by the Employment Tribunal to questions under the Burns/Barke procedure were sufficient (b) although one of the members went too far, in error of law, he was only 1 of 3 and his comments had no higher status than that of a dissent.

Observations on the use of the expression ‘we are driven to the conclusion’; it states no more than the fact finder’s view of the strength of the evidence.

Citations:

[2008] UKEAT 0443 – 07 – 2208

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.272839

The claimant sought leave to appeal dismissal of his claim for unfair dismissal on the basis that he had shown no ground in law to appeal to the EAT.

Citations:

[2008] EWCA Civ 957

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 19 July 2022; Ref: scu.272850

EAT PRACTICE AND PROCEDURE: Review
A case management order was made precluding the respondent from relying upon documents which it had not previously disclosed to the claimant. At the Hearing which the Claimant did not attend, he having emigrated, documents were relied on by the respondent which had not been disclosed to the claimant. This was a material irregularity. From the limited nature of the appeal which was against the refusal to review, application for review succeeded and the matter would be directed to the same employment judge for him to hear the review in the light of all new material the claimant wished to put before him.

Citations:

[2008] UKEAT 0231 – 08 – 2208

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.272838

EAT Jurisdictional Points: Claim in time and effective date of termination
Claimant was suspended from duty as a teacher and entered into negotiations with Respondent for a compromise agreement whereby he would be compensated for termination of his employment. It was envisaged that under the agreement the parties would agree that his employment terminated on 31 October 2006. This was included in a preamble to a draft agreement that was never in fact agreed and was marked ‘without prejudice’ and ‘subject to contract’. In the expectation that the agreement would be executed, the Respondent removed the Claimant, to his knowledge, from the payroll effective 31 October 2006. The Employment Judge held that there was a freestanding agreement that the Claimant’s employment should be terminated as at 31 October 2006 and the three-month time limit began to run for the purpose of section 11 of the Employment Rights Act from that date; the Claimant, asserted the EDT was later and that if his EDT was correct his application was in time. Appeal allowed on the basis that it was impossible to construct a freestanding agreement and the Claimant’s EDT accepted. The Respondent sought to argue that the case was on all fours with Robert Cort and Son Ltd v Chapman [1981] IRLR 437 and that the decision to take the Claimant off the payroll amounted to a termination of his employment with immediate effect. Held that Cort v Chapman required there to be something equivalent to an unequivocal dismissal. On the facts of the instant case the decision to remove from the payroll appeared to be made in the expectation that the draft agreement would be executed and to give effect to it rather than with a view to termination of the employment in any event.

Citations:

[2008] UKEAT 0114 – 08 – 0905

Links:

Bailii

Cited by:

Appeal from – Kirklees Metropolitan Council v Radecki CA 8-Apr-2009
The council appealed against a finding that the claimant’s case had been brought in time. There had been negotiations for a compromise agreement which had failed. The EAT had found it unclear that the employment had ended at the point asserted by . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 July 2022; Ref: scu.272548

EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation
Issue as to whether employees were ‘dismissed’.
The employer resolved to remove the employees’ contractual entitlement to company-cars. Attempts to achieve consensual variation of the contracts to that effect were followed by letters referring to termination of employment and re-engagement. The employees then signed new terms without the previous company-car provisions.
On the issue of whether there had been any ‘dismissals’, an Employment Tribunal found that the new terms had been achieved by agreement to vary rather than termination.
On appeal, the Employment Appeal Tribunal was satisfied that the only proper construction of the letters was that the employees had been dismissed by notice in writing and then re-engaged on less favourable terms.

Citations:

[2008] UKEAT 0447 – 07 – 1408

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.272561

EAT An order striking out a claim or response cannot be made at a case management discussion.

Citations:

[2008] UKEAT 0217 – 08 – 2606

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.272546

EAT The employee carried out tasks for her employer and for the employer’s principal shareholder. She was dismissed for misconduct, much of which she believed arose out of tasks which were not part of her contract of employment. The Employment Appeal Tribunal found that she genuinely so believed but that her employer genuinely believed that those tasks were contractual and reasonably so believed. They made no finding as to whether they were contractual or not. They found that conduct was the reason for dismissal and that dismissal for that reason was fair.
Held: The Employment Appeal Tribunal were, so far as unfair dismissal was concerned, not obliged to make such a finding; their approach was correct. But they were bound to make such a finding before deciding that summary dismissal was not a breach of contract; and the employee was therefore not entitled to damages for breach of contract for a two-week notice period.

Citations:

[2008] UKEAT 0077 – 08 – 2406

Links:

Bailii

Employment

Updated: 19 July 2022; Ref: scu.272545

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Betting shop assistants dismissed for fraud – Dismissal held to be unfair on the basis that there were defects in the investigation and, more particularly, that the employers’ belief in the employees’ guilt was unreasonable on the basis of the available evidence – Employer appealed on the basis that the Tribunal had failed to apply British Home Stores v. Burchell – Held that the Tribunal had directed itself properly and that it was entitled to reach the conclusion which it did

Citations:

[2008] UKEAT 0154 – 08 – 0608

Links:

Bailii

Employment

Updated: 18 July 2022; Ref: scu.272261

EAT Contract of Employment – Breach of Contract.

Judges:

The Honourable Mr Justice Lindsay (P)

Citations:

EAT/0107/01

Links:

EAT

Jurisdiction:

England and Wales

Employment

Updated: 18 July 2022; Ref: scu.255696

(Judgment) Open competition – Non-admission to tests.

Citations:

T-145/02, [2004] EUECJ T-145/02

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 18 July 2022; Ref: scu.195059

Citations:

[1992] UKEAT 313 – 91 – 0212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 July 2022; Ref: scu.211186

EAT A default judgment found that the claimant’s claim of unfair dismissal succeeded. The employers were subsequently barred from appearing at remedies hearing. Undertaking given by and on behalf of claimant regarding material to be put before tribunal at remedies hearing, on basis of which employers did not proceed with appeal against that bar, not obtempered, and tribunal proceeded to fix remedy in ignorance of it. When drawn to tribunal’s attention, it issued a judgment deciding that its remedies decision would be subject to review on the basis that the material which had not been put before the tribunal at the remedies hearing was clearly of relevance, but refused to allow the employers to be represented at that hearing. Following the review hearing, the tribunal decided that the matter could not be reviewed. Appeal allowed: the tribunal’s reasoning was not Meek compliant; further, the procedure explained in D and H Travel Ltd and Anr v Foster EAT0226/06 should have been followed. Order pronounced allowing the appeal, setting aside the tribunal’s judgment award of compensation and remitting the question of remedy to a freshly constituted tribunal for a hearing on remedy in which the employers would be allowed to participate.

Citations:

[2008] UKEAT 0053 – 07 – 1806

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 July 2022; Ref: scu.273198

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Conduct dismissal. Burchell test. Reasonableness of grounds for belief in misconduct. Misapplication of (neutral) burden of proof under s98(4) ERA.
Appeal allowed and case remitted for rehearing by fresh Employment Tribunal.

Judges:

Peter Clark J

Citations:

[2008] UKEAT 0559 – 07 – 2006

Links:

Bailii

Citing:

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.

Employment

Updated: 18 July 2022; Ref: scu.271324

EAT UNLAWFUL DEDUCTION FROM WAGES
Claimants off work pending outcome of grievance process. Judged unfit to return until process completed. Sick pay continued despite Claimants refusing to lodge sick notes in breach of Respondent’s policy. Held by ET: entitled to full pay during relevant period. Decision was plainly wrong; Claimants were not ready willing and able to work. Appeal by Respondent allowed.

Citations:

[2008] UKEAT 0177 – 08 – 1806

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 July 2022; Ref: scu.271323

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Fireman dismissed following unacceptable level of absences, all supported by medical certificates. ET held dismissal for ‘conduct’ and not unfair.

Citations:

[2008] UKEAT 0621 – 07 – 2207

Links:

Bailii

Employment

Updated: 18 July 2022; Ref: scu.271331

EAT AGE DISCRIMINATION
The claimant was excluded by the terms of a voluntary redundancy scheme because he had reached the age of 60. There were tapering provisions in place between the ages of 57-60. When the scheme was originally introduced it was compulsory to retire at 60, but later the retirement age was changed to 65. The scheme was not amended in the light of that. The claimant submitted that the scheme directly discriminated against him on grounds of age discrimination. The ET rejected his claim.
The EAT upheld the appeal and held that there was no adequate analysis of the aims of the scheme nor the issue of proportionality. The case was remitted to a fresh tribunal.
‘the fact that an agreement is made with the trade unions is potentially a relevant consideration when determining whether treatment is proportionate. The decision of the ECJ in the case of Palacios de la Villa v Cortefiel Services SA [2007] IRLR 989 strongly supports that proposition. The Court recognised that one of the considerations that could properly weigh in the assessment of whether compulsory retirement was justified was that the rules in question had been collectively agreed. . . Plainly the imprimatur of the trade union does not render an otherwise unlawful scheme lawful, but any tribunal will rightly attach some significance to the fact that the collective parties have agreed a scheme which they consider to be fair.’

Citations:

[2008] UKEAT 0156 – 08 – 2907, [2008] ICR 1347

Links:

Bailii

Cited by:

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 – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.271327

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The majority judgment of the Employment Tribunal that the Respondent dismissed the Claimant unfairly in breach of the EADR 2004, Steps 1 and 2(ii)(b), and if necessary, Employment Rights Act 1996 s98(4), was set aside. It was made without explanation as to why it rejected the unchallenged evidence of the Claimant and his TU rep that he knew he was at risk of dismissal and agreed he had adequate time to prepare, in the 48 hours between the suspension and the disciplinary meeting.

Citations:

[2008] UKEAT 0514 – 07 – 3005

Links:

Bailii

Employment

Updated: 18 July 2022; Ref: scu.271319

EAT VICTIMISATION DISCRIMINATION – Protected disclosure
Dismissal for making a protected disclosure Employment Tribunal decision upheld.
Suffering a detriment for the same reason. Employment Tribunal decision inadequate and committed to a different decision for determination.

Judges:

Wilkie J

Citations:

[2008] UKEAT 0094 – 08 – 1605

Links:

Bailii

Statutes:

Employment Rights Act 1996 47B 103(A)

Jurisdiction:

England and Wales

Citing:

Cited – Barke v Seetec Business Technology Centre Ltd CA 16-May-2005
Challenge to the lawfulness of the practice of the EAT in referring back to the IT deficient reasons with an invitation to expand upon them.
Held: The words ‘disposing of’ in the section meant ‘dealing with conclusively’ rather than . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.271320

EAT CONTRACT OF EMPLOYMENT: Damages for breach of contract
The proper approach to the assessment of damages for breach of a contract of employment in a case of wrongful dismissal is that explained in Shove v Downs Surgical plc [1984] IRLR 17.

Citations:

[2008] UKEAT 0145 – 08 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Shove v Downs Surgical plc 1984
The court considered the correct approach to calculating damages for breach of an employment contract, and in particular in the context of income tax on any award over the andpound;30,000 limit, and the need to gross up any award. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.271318