The Respondent, a provider of hospitals with specialist treatment programmes for patients detained under the Mental Health Act, appealed against the Decision of the ET which upheld the Claimant employee’s claim of public interest disclosure detriment pursuant to section 47B Employment Rights Act 1996.
The appeal was on the grounds that the ET had:
(1) for the purpose of determining whether he had made qualifying disclosures within the meaning of section 43B(1), failed to consider whether the Claimant had a subjective belief that they (i) tended to show a breach of legal obligation (section 43B(1)(b)) and (ii) were made in the public interest; alternatively that there was no evidence to support any such conclusion;
(2) wrongly concluded that one of the alleged disclosures, an email dated 2 March 2016, contained ‘information’ within the meaning considered by the Court of Appeal in Kilraine v London Borough of Wandsworth [2018] IRLR 846;
(3) wrongly concluded that a subsequent email dated 9 June 2016 from the Respondent to the Claimant was ‘materially influenced’ by the Claimant’s email of 2 March 2016.
The appeal was dismissed on each ground.

Citations:

[2019] UKEAT 0116 – 18 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.639211

The Claimant was a member and branch secretary of the Respondent trade union. At the age of 62, he was nominated to stand for election to the Respondent’s National Executive Committee for the requisite three-year term. His nomination was rejected by the Respondent on the basis of a rule in its Rulebook which did not allow nomination where the proposed candidate would if elected reach the age of 65 before the end of the three-year term. The Claimant presented a claim which included detriment on the ground of direct age discrimination, contrary to sections 57(2)(d) and 13 Equality Act 2010.
The ET rejected each of the alleged legitimate aims of the rule relied on by the Respondent pursuant to section 13(2); and in the alternative held that the means were disproportionate to any such aims.
The Respondent appealed in respect of three of the alleged aims, namely intergenerational fairness, efficient planning and consistency with its long-established policy of campaigning to lower the retirement age. As to the first two aims, it contended in particular that the ET had taken account of matters which were only potentially relevant at the stage of assessing proportionality. These included findings that (i) the rule had in fact failed to advance younger members in respect of NEC membership and that (ii) the stated aim of effective planning was at odds with the comparative rules in respect of the nomination of paid officials for re-election. As to consistency with policy on reducing retirement ages, the ET had rejected this by a circular argument. As to the alternative decision on proportionality, the decision was based on no more than an assertion and/or was not Meek-compliant.
The EAT dismissed the appeal, holding in particular that (i) the ET had been entitled to take account of the matters relied on when considering whether intergenerational fairness and efficient planning were true aims of the rule and, if so, whether they were legitimate aims; (ii) there was no circularity in the rejection of the stated aim of consistency with the Respondent’s political policy on retirement age. The ET had correctly held that there was no inconsistency between that policy and its obligations under age discrimination law; and that a policy which was contrary to Government policy on retirement age could not constitute a legitimate aim: Seldon v Clarkson Wright and Jakes [2012] UKSC 16 at paragraph 55. The EAT accepted the Respondent’s criticism that the ET’s alternative consideration of proportionality was too cursory, but that issue fell away in the light of the dismissal of the appeal on the issue of legitimate aims.

Citations:

[2019] UKEAT 0281 – 18 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.639213

Unfair Dismissal – Polkey Deduction – Contributory Fault
The claimant, an employee in the oil and gas sector in Aberdeen, was dismissed by his employer. The Tribunal having concluded that the dismissal was both procedurally and substantively unfair, the respondent sought to reduce the compensatory award on the Polkey principle and to reduce compensation on the basis of the claimant’s contribution to his dismissal. A Polkey reduction of one third was made but there was no reduction for contributory fault. The respondent appealed.
Held: 1) The one third deduction could not be regarded as manifestly less than the percentage that might have been proper ( Contract Bottling Limited v Cave and another [2015] ICR 146). A substantial chance of redundancy could easily be less than 50%.
2) The single error on the part of the claimant fell far short of anything that might have caused or contributed to dismissal and the Tribunal’s approach to the application of section 123(6) ERA 1996 had been correct.
Appeal dismissed.

Citations:

[2018] UKEAT 0016 – 17 – 2908

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.630725

The appeal involved a reformulation of arguments run and rejected by the Employment Appeal Tribunal in HMRC v Serra Garau [2017] ICR 1121. Since Garau was not decided per incuriam and is not manifestly wrong, it should be followed: only one mandatory EC process is enacted by the EC provisions in section 18A Employment Tribunals Act 1996, and only one certificate is required for ‘proceedings relating to any matter’. A second certificate, where obtained and relating to the same matter, has no impact on the limitation period.
Since the Employment Tribunal was entitled to conclude that the two certificates both related to the same ‘matter’, it was also entitled to conclude that the claim was made out of time and that, since it was reasonably practicable for it to have been made in time, there was no jurisdiction to hear it.
The appeal therefore failed.

Judges:

Silmer DBE J P

Citations:

[2018] UKEAT 0303 – 17 – 2604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.625437

UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
The Claimant was a Reservist in the Marines. He was dismissed without warning for some other substantial reason in that he had committed to undertake a seven-week training exercise abroad which was not something that the Respondent, a small employer, could accommodate. The ET found that the dismissal was not unfair. The Claimant contended that the ET erred in that in assessing fairness, it had considered questions relevant only to whether there ought to be a Polkey reduction. There was also a challenge to the ET’s finding that there was nothing to indicate that if the Claimant had been warned that he might be dismissed he would have changed his mind.
As to the first ground of appeal, the EAT found that the ET had not erred in assessing fairness. Reading the Judgment as a whole it was clear that the ET had the correct test under section 98(4) Employment Rights Act 1996 in mind and had applied it correctly. Furthermore, the ET had made an express finding of fact that by the time of the dismissal meeting, the Claimant had already decided that he would be attending the exercise. In those circumstances, it was open to the ET to conclude that the failure to hold an earlier meeting would not have changed the position, and its analysis did not amount to an impermissible application of Polkey to the question of unfairness. The second ground was a challenge to a finding of fact in circumstances where there was ample evidence to support the ET’s conclusions.
For these reasons, the appeal is dismissed

Citations:

[2018] UKEAT 0070 – 18 – 1406

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.625443

EAT JURISDICTIONAL POINTS: Extension of time: reasonably practicable
In relation to the Claimant’s application for an extension for an out of time application for unfair dismissal, the Employment Judge (‘EJ’) made a finding that the dismissal was on 21 December 2007 but that, although there was uncertainty prior to 8 February, the Claimant was on and after 8 February under the belief that he was dismissed on 8 February. The EJ found that the Claimant had that belief notwithstanding clear statements that he was dismissed on 21 December, by the Appellant to the Claimant and his representative on 8 February, by the Claimant himself on 5 March and in correspondence. EJ made no finding that such belief was and/or continued to be reasonable. Not remitted, because no tribunal could find that it was.

Citations:

[2009] UKEAT 0035 – 09 – 0604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.346162

EAT Jurisdiction in unfair dismissal. Claimant was employed by the respondents, a Singapore company, as a storeman working in the offshore industry. He worked on an oil rig registered in Singapore operated by a company registered in the UK when it was in the Gulf of Mexico and, latterly, when it was off the coast of Nigeria. He was dismissed and sought to pursue a claim of unfair dismissal before the Employment Tribunal in Aberdeen. Tribunal found that it had jurisdiction on the basis that there was a substantial connection between Great Britain and the employee/his employment. On appeal, the EAT found that the Tribunal had applied the wrong test, under reference to Lawson v Serco Ltd [2006] ICR 250. It had erred in concluding that it had jurisdiction. Claim dismissed.

Citations:

[2009] UKEAT 0049 – 08 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.347174

EAT Procedural fairness/automatically unfair dismissal
Compensation
Appeal upheld. It was not open to the Tribunal to find that the employers had failed to comply with step 3 of the statutory dismissal procedure. Claim dismissed.

Citations:

[2009] UKEAT 0054 – 08 – 0403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.337763

EAT PRACTICE AND PROCEDURE
Amendment
Appellate jurisdiction/reasons/Burns-Barke
Employment Tribunal refused Claimant’s late application to amend to add the ‘label’ of unfair dismissal to the facts already pleaded and when both parties had prepared evidentially to deal with an unfair dismissal claim. Claimant’s appeal allowed.
Employment Tribunal’s dismissal of Claimant’s complaints of race discrimination and victimisation held not to be Meek compliant, given the extensive factual disputes and the brief, inadequately reasoned decision on a crucial issue in the case. Claimant’s appeal allowed.
Claims all remitted for a fresh hearing.

Citations:

[2009] UKEAT 0529 – 08 – 0704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.347179

EAT TIME OFF: Trade union activities
PART TIME WORKERS
Appeal in respect of the alleged failure to permit the Appellant to take time off in accordance with Regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1977 dismissed since although there was a dispute about the reasonableness of the request, the course was not ‘in working hours’ since it fell on a day when the Appellant was not required to work.
Appeal in respect of the Appellant’s claim that she was treated less favourably on the grounds of being a part-time worker contrary to Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 allowed and the Employment Tribunal Judgment set aside and remitted to the same Employment Tribunal. The Employment Tribunal did not make findings on the aptness of the comparators or give reasons for its finding that management’s decision was not made on the grounds of the Appellant’s part-time status.

Citations:

[2009] UKEAT 0512 – 08 – 0603

Links:

Bailii

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.337762

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL: Constructive dismissal
The EAT, as the tribunal of fact, found that a three-person Employment Tribunal showed apparent bias. The Employment Judge twice allowed private access to himself by counsel for the Respondent, without reference to the Claimant in person, to raise case management issues, and matters very personal to the Claimant or the Respondent’s manager.
Further, the Employment Tribunal wrongly excluded the Claimant’s evidence of two grievances the handling of which he alleged contributed to the final straw causing his resignation. Judgment set aside and remitted to a fresh Tribunal.

Citations:

[2009] UKEAT 0312 – 08 – 2702

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.337761

EAT PRACTICE AND PROCEDURE: Time for appealing / new evidence on appeal
The Claimant was 2 months late in applying for a Rule 3(10) hearing expressing dissatisfaction with a Rule 3 opinion and the Registrar refused to extend time. He had instead applied to the Court of Appeal which rejected his application as he had not exhausted the EAT procedure. His appeal against the Registrar was in exceptionally allowed. His application to adduce fresh evidence was refused. His Notice of Appeal under Rule 3(10) had no prospect of success.

Citations:

[2009] UKEAT 0903 – 08 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.347319

EAT JURISDICTIONAL POINTS
The timeliness of a claim is logically prior to the ability to make a claim by reason of length of service. Thus it should be determined first and separately.

Citations:

[2009] UKEAT 0019 – 09 – 1902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.347169

EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason / Reasonableness of dismissal
The Tribunal’s reasoning in respect of the Air Navigation Order issue did not make requisite findings and in particular did not consider adequately whether the employer’s stated reasons was or were not reasonable. The Tribunal’s findings in respect of reason for dismissal unclear and unsatisfactory.

Citations:

[2009] UKEAT 0466 – 08 – 0403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.331194

Appeal against allowance of extension of time for Respondents to file answer and cross-appeal.

Citations:

[2009] UKEAT 0619 – 07 – 1002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.323713

EAT TRANSFER OF UNDERTAKINGS
Whether relevant transfer by way of SPC (TUPE 2006, reg 3(1)(b) and (3). The Employment Tribunal entitled to find that service provided by putative transferor too fragmented to give rise to transfer.

Judges:

Peter Clarke J

Citations:

[2009] UKEAT 0054 – 08 – 2402

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 12 July 2022; Ref: scu.304521

EAT JURISDICTIONAL POINTS: Claim in time and effective date of termination
A contract of employment provided for notice in writing. The Employment Judge did not err when he found the effective date of termination for Employment Rights Act 1996 s 111 was on the day oral communication of dismissal was given and received. Statement of the law in Harvey approved.

Citations:

[2009] UKEAT 1518 – 08 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.331190

EAT UNFAIR DISMISSAL: Compensation
VICTIMISATION DISCRIMINATION: Whistleblowing
The Claimant was dismissed from his post as the respondent’s Finance Director by its Chief Executive. The Claimant brought a number of claims including one for unfair dismissal which was based on the allegation that the principle reason for his dismissal was the fact that he had made protected disclosures. The Employment Tribunal held in the liability decision that the Claimant’s dismissal was unfair pursuant to the whistle-blowing provisions. The Employment Tribunal held that the Polkey principle did not apply but it reduced the Claimant’s compensatory award by 25% on account of the Claimant’s contributory fault.
At the time of the subsequent remedies hearing, the Claimant had engaged in a sustained campaign to show that the Respondent’s Chief Executive was dishonest. The Housing Corporation had found that there was no evidence of dishonesty. On 16 April 2007, the Claimant wrote to Nottingham Police with copies to other bodies alleging that the Chief Executive was guilty of not only fraudulent accounting but also possibly theft. The police subsequently carried out investigations and found that there was no case for the Chief Executive to answer as his innocence had been proved. The Employment Tribunal held that the Claimant’s motive was a vendetta and that the Claimant could not have had a reasonable belief in the truth of the accusation that the Chief Executive was dishonest. Therefore they considered that if the Claimant had remained in the employ of the Respondent then certainly by the time of his letter to the Police of 16 April 2007, the respondents would not have been acting unfairly in dismissing him for persisting in making the disclosures. So the cut-off point for the claim for compensation was 16 April 2007.
The Claimant appealed and the Appeal Tribunal unanimously held that:-
(i) the Employment Tribunal was not precluded from the findings at the liability hearing (and in particular that the Polkey doctrine did not apply) from deciding in the light of developments after the liability hearing that the Claimant could have been fairly dismissed when he sent the letter of 16 April 2007 to Nottingham Police;
(ii) There was nothing unfair in the procedure adopted by the Employment Tribunal in reaching that decision especially as the complainant did not complain at the time of the remedies hearing;
(iii) The findings of the Employment Tribunal that (a) the Claimant’s complaint to the police was motivated by vendetta and an obsession to destroy the Chief Executive and (b) that by the time the complainant complained to the police he could not have a reasonable belief in the truth of the accusation that the Chief Executive was dishonest meant that the Claimant could not rely on Darnton v The University of Surrey [2003] IRLR 133 and Street v Derbyshire Unemployed Workers Centre [2005] ICR 97;
(iv) There was no error of law in the decision of the Employment Tribunal in not finding the Chief Executive guilty of dishonesty; and
(v) Many of the challenges by the Claimant were to factual conclusions which the Employment Tribunal as the designated fact-finder was entitled to reach.

Citations:

[2009] UKEAT 0324 – 08 – 0804

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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.

Employment

Updated: 12 July 2022; Ref: scu.331198

Judges:

Peter Coulson QC J

Citations:

[2007] EWHC 2739 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.261583

EAT Contract of Employment – Definition of employee
Triangular relationship – whether ET entitled to conclude that there was to be implied a contract of employment between worker and end-user. See Dacas. Muscat. James v Greewich BC. They were. Adequacy of reasons. Conclusion by ET plainly right.

Judges:

Peter Clark J

Citations:

[2007] UKEAT 0144 – 07 – 2106

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.261523

ladbrokes_traynorEAT2007

Practice and Procedure: Amendment
Appeal from what was described by a Tribunal as an ‘order’ granting Claimant leave to amend in the course of the hearing on evidence in a claim for unfair dismissal. Claimant seeking to cross examine in support of an allegation that investigatory and disciplinary procedures unfair, no notice of a case of procedural unfairness having been given in his ET1. Appeal successful. Guidance from EAT as to appropriate approach when a party seeks to raise an issue of which notice not previously given.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0067 – 06 – 0310

Links:

Bailii

Citing:

Cited – Khudados v Leggate and others EAT 16-Feb-2005
Application was made to make extensive amendments to the notice of appeal.
Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .

Cited by:

Cited – Readman v Devon Primary Care Trust EAT 1-Sep-2011
EAT PRACTICE AND PROCEDURE – Amendment
Decision on hearing under rule 3 (10) – Observations on approach to grant of leave to amend Notice of Appeal at hearings under that rule.
The first notice of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.261544

Practice and Procedure: Postponement or stay / Costs
The Employment Tribunal dismissed an application by the Claimant to postpone the (first) hearing, heard the case in her absence and dismissed the claims. On a (second) hearing for Review, the case was reinstated but the Claimant was ordered to pay a contribution of andpound;950 to the Respondent’s costs incurred at the first hearing. The claims were subsequently dismissed at a (third) hearing. EAT upheld the award. There was in reality a postponement of the hearing from February to September 2005 and Rule 40(1) was permissibly applied.

Judges:

McMullen QC

Citations:

[2007] UKEAT 0351 – 06 – 2408

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.261529

EAT Unfair dismissal – Reasonableness of dismissal
The Employment Tribunal did not err in finding that a window cleaner was unfairly dismissed and 50% to blame for his dismissal when a co-worker was fairly dismissed for engaging in an unsafe practice while doing work on a ledge. The tribunal did not substitute its own judgment to that of the management or treat like cases differently.

Judges:

McMullen QC J

Citations:

[2007] UKEAT 0205 – 07 – 3108

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.261531

EAT Practice and Procedure – striking out/dismissal and Appearance / Response and Review
Non – acceptance of response (form incomplete). Correct form sent in time, but Employment Tribunal declined to pay excess postage (Respondents franking machine missed envelope, in post). Review application rejected. Appeal against review decision allowed.

Citations:

[2007] UKEAT 0245 – 07 – 0407

Links:

Bailii

Citing:

Cited – Moroak T/A Blake Envelopes v Cromie EAT 19-Apr-2005
moroak_cromieEAT2005
EAT Response lodged at the Employment Tribunal 44 minutes late and the Employment Tribunal ordered that the Respondent could take no part in the proceedings and refused to review that order on the basis it had no . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.261527

Practice and Procedure – Estoppel or Abuse of Process
The Tribunal Chairman erred in law in holding that the cause of action in the two claims commenced by the Claimant was not the same.
Once proceedings are dismissed on withdrawal under Rule 25 a claimant in subsequent proceedings based on the same cause of action cannot avoid the consequences of the order dismissing the proceedings merely by asserting that he always intended to bring a second claim and that it is not an abuse of process to bring it. The exception to the operation of cause of action estoppel allowed in Ako v Rothschild Asset Management (2002) IRLR 348 is no longer available.
Discussion of review as a potential remedy for a claimant who has suffered injustice by the operation of Rule 25.

Citations:

[2007] UKEAT 0467 – 07 – 1910

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.261538

EAT Practice and Procedure – Case management – Disability Discrimination – Disability – At an adjourned CMD the Chairman refused the employers’ application for leave to call their own psychiatric expert on the issue of disability. The claim was said to be worth nearly andpound;100,000; the Claimant’s solicitors had obtained their own expert;- although they had invited the employers to agree joint instruction, they did so at a time when the only disability alleged was ‘back injury’.
Held that, although the grounds on which a case management decision of the ET could be successfully appealed were very restricted, these grounds were made out. The employers had acted reasonably; they were not guilty of delay; there was no risk that their obtaining their own report would delay the substantive hearing. The Chairman failed to take into account the importance of the overriding objective to deal with cases justly and on an equal footing and had reached a decision which no reasonable Tribunal could reach.

Judges:

Burke QC HHJ

Citations:

[2007] UKEAT 0196 – 07 – 1810

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.261547

ECJ Public service Officials Moral harassment Action for annulment Duty to provide an obligation. Obligation to state reasons Legitimate expectations Article 24 of the Staff Regulations Duty of care Admissibility Claims for damages

Citations:

T-154/05, [2007] EUECJ T-154/05

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 12 July 2022; Ref: scu.261341

ECJ Officials Career development report 2003 evaluation exercise Irregularities in the procedure Article 43 of the Staff Regulations Right to be heard Sick leave Medical certificate

Citations:

T-27/05, [2007] EUECJ T-27/05

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 12 July 2022; Ref: scu.261342

Application for leave to appeal after failure of claim for unfair/constructive dismissal.

Citations:

[2007] EWCA Civ 979

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.259893

EAT Religion or Belief
Claimant brought a claim for direct and indirect discrimination on the grounds of his philosophical beliefs, and also victimisation discrimination. He was a Rastafarian and claimed that he had been discriminated against for that reason. It was accepted that this was a philosophical belief falling within the terms of the Employment Equality (Religion and Belief) Regulations. The Tribunal rejected all these claims. He appealed against the finding that there was no indirect discrimination and alleged that the tribunal had not given proper consideration to the victimisation discrimination claim. The Respondent conceded the latter but held that the finding of unfair dismissal was justified. The EAT agreed, notwithstanding some unsatisfactory features of the Tribunal’s analysis. Their findings of fact precluded any possibility of a finding of indirect discrimination. Accordingly the case was remitted to the Tribunal to consider victimisation discrimination only.

Citations:

[2007] UKEAT 0134 – 07 – 0310

Links:

Bailii

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: 12 July 2022; Ref: scu.259825

EAT UNFAIR DISMISSAL
Constructive Dismissal
Costs
Whether, further evidence admissible at costs hearing in relation to factual issue determined at the substantive hearing (No). Costs in the appeal.

Judges:

Peter Clark J

Citations:

[2007] UKEAT 0037 – 07 – 1907

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.259811

Practice and Procedure 2002 Act and pre-action requirements
Chairman wrong in holding that there was a valid grievance letter. The context mentioned by Elias J in Canary Wharf could not include a meeting after the alleged grievance document.

Judges:

Ansell J

Citations:

[2007] UKEAT 0211 – 07 – 2308

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.259817

EAT Redundancy
Chairman issued judgment dismissing Claimant’s application for a statutory redundancy payment prior to last date for lodging written submissions. Brief reasons issued almost five months later. Parties at issue as to whether or not Claimant redundant, if so, whether or not she was dismissed by reason of redundancy and whether or not she refused an offer of suitable alternative employment. The Tribunal said that the Claimant was not redundant without addressing the relevant legal issues. Appeal upheld. The timing of issuing of the judgment was indicative of a failure by the Tribunal at the outset, to follow its judicial function. Further the Tribunal’s reasons were not Meek compliant. In particular, they failed to identify the issues between the parties and to address those issues. They failed to make findings of fact relevant to those issues. The reference to the relevant statutory provisions was cursory and did not show any appreciation of their implications for the case and there was no attempt to explain how the relevant law and the facts of the case led to the result. Observations on the approach in law that ought to have been followed in the light of the redundancy issues in the case.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0066 – 06 – 0808

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.259819

EAT Unfair Dismissal:
Reasonableness of dismissal / Contributory fault / Constructive dismissal
The Claimant was dismissed for misconduct, namely pretending that he was unfit to return to work when video footage showed that he was not so unfit. The Employment Tribunal found that the dismissal was unfair. The Respondent’s appeal was allowed; the Employment Tribunal had erred in law in:
(1) omitting to refer to the full investigatory meeting before suspension and concluding that the Respondent had a ‘mindset’ to dismiss because they had gone straight from receiving a tip off about the Claimant to suspension; on the evidence they had not done so.
(2) criticising the Respondents for not taking a statement from the informant when, on the evidence, the tip off was no more than a trigger for their investigations.Mbr />(3) criticising the Respondents in relation to the medical evidence on a false basis of fact.
(4) failing in the light of Taylor v OCS Group, to consider the effect of the internal appeal hearing.
Remitted for rehearing by fresh Tribunal.

Judges:

Burke QC J

Citations:

[2007] UKEAT 0053 – 07 – 2206

Links:

Bailii

Citing:

Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.259805

EAT UNFAIR DISMISSAL
Procedural Fairness/Automatically unfair dismissal
Contributory Fault
Automatically unfair dismissal (ERA. s.98A (1). Whether step 1 and step 2 DDP complied with. Basic award; contribution; Minimum award under s.120.

Judges:

Peter Clark J

Citations:

[2007] UKEAT 0127 – 07 – 2706

Links:

Bailii

Cited by:

Cited – Zimmer Ltd v Brezan EAT 24-Oct-2008
EAT UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal
This judgment addresses only the issue as to whether the Employment Tribunal’s finding of automatically unfair dismissal was wrong in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.259806

EAT Practice and Procedure: Application/Claim
Where the Employment Tribunal erroneously failed to accept an ET1 and a second ET1 was, as a consequence, said to be out of time, the Employment Appeal Tribunal overturned that latter decision by agreeing to review it and to order that the second ET1 be accepted and the claim proceed.

Judges:

Wilkie J

Citations:

[2007] UKEAT 0241 – 07 – 2006

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.259807

EAT Practice and Procedure: Costs
1. Employment Tribunal entitled to make award of costs where Claimant persisted unreasonably in pursuing his claim for re-engagement.
2. The conventional award for loss of protection may be awarded even though, in the meantime, the Claimant has obtained employment and accrued service to obtain new protection for employment rights.

Citations:

[2007] UKEAT 0631 – 06 – 0706

Links:

Bailii

Citing:

Cited – Hilti (Great Britain) Ltd v Windridge EAT 1974
EAT The employer appealed against the tribunal’s decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period.
Held: The award was upheld. Lord . .
Cited – Daley v AW Dorsett (Almar Dolls Ltd) EAT 1981
The loss of a right to an extended period of notice is a proper head of damages in an employment loss case: ‘It is a claim for compensation for the loss of an intangible benefit, namely that of being entitled in the course of one’s employment, to a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.259809

EAT PRACTICE AND PROCEDURE – Postponement or stay
Appellant employer appealed against refused application for deferral of hearing, owing to sickness of employer. Application for deferral of hearing made late. Chairman of tribunal refused postponement adapting Respondents reasoning. No reason why wife of employer could not attend and delay would cause hardship to Respondent. Directions of that hearing, in absence of Appellant, appeal dismissed.

Judges:

Plender QC Rec

Citations:

[2007] UKEAT 0188 – 07 – 1807

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.259810

EAT UNFAIR DISMISSAL
Contributory fault
Unfair dismissal. Tribunal find dismissal procedurally unfair but impose 75% reduction in compensation by way of contribution.
Argued on appeal that the contribution was excessive and that the matters the Tribunal took into account were either (1) not ‘culpable’ or (2) not ‘contributory’ to the dismissal.
Appeal dismissed. No error of law established in the Tribunal’s approach.

Judges:

Luba QC

Citations:

[2007] UKEAT 0142 – 07 – 2408

Links:

Bailii

Employment

Updated: 12 July 2022; Ref: scu.259410

EAT Contract of Employment – definition of employee
Insolvency
The Appellants were a husband and wife who entered into contracts of employment with a company which they managed and which they between them owned 99.99% of the shares (the wife having just 51.99% and the husband 48%). When the company became insolvent they claimed against the Secretary of State under the insolvency provisions of the Employment Rights Act 1996. The Employment Tribunal held that by reason of their joint control of the company they could not be employees. Appeal allowed: the fact of their control was not sufficient to deprive them of employment status if they otherwise satisfied all the criteria for employment. Secretary of State for Trade and Industry v Bottrill [1999] ICR 592, Fleming v Secretary of State for Trade and Industry [1997] IRLR 682, Connolly v Sellers Arenascene Ltd [2001] ICR 760 and Gladwell v Secretary of State for Trade and Industry [2007] ICR 264 considered.

Judges:

Underhill P, J

Citations:

[2007] UKEAT 0091 – 07 – 1008, [2007] IRLR 847

Links:

Bailii

Citing:

Cited – Fleming v Secretary of State for Trade and Industry IHCS 1997
The applicant had held 65% of the shares of the company by which he was employed and was its managing director. On its insolvency, he sought payment of his arrears of wages from the defendant. The industrial tribunal concluded that he was not an . .
Cited – Secretary of State for Trade and Industry v Bottrill CA 12-Feb-1999
There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the . .
Cited – Gladwell v Secretary of State for Trade and Industry EAT 25-Oct-2006
EAT Practice and Procedure – Chairman alone. Whether owner of 50% of shares in company and director was employee and entitled to payment of arrears of pay on its insolvency. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.259413

EAT Unfair Dismissal – Automatically unfair reasons / Compensation
The claimant was dismissed for redundancy. The Tribunal found her dismissal to have been automatically unfair in respect that she had not been notified of her right of appeal. No question concerning her right of appeal had been put in issue by the claimant. The Tribunal Chairman considered, from his reading of the productions, that the dismissal was automatically unfair as the Claimant had not, on that documentation, been notified of her right of appeal. No notice that he thought it was an issue was given to the respondents. The Tribunal also held that they would, in any event, have found the dismissal to be unfair in respect that there was no proper consultation, no organised effort to find alternative employment for the claimant and a role was available which was given to another employee without it being advertised. The Employment Appeal Tribunal held that the Tribunal had erred in failing to put the respondents on notice that they considered the question of intimation of the claimant’s right of appeal to be an issue in the case and that there was no proper basis for the Tribunal’s finding that the dismissal was unfair in any event. Observations on Tribunal’s obligations in circumstances where there appears to be a point of law in a party litigant’s favour that has not been identified by that party.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0057 – 06 – 0407

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.259407

EAT PRACTICE AND PROCEDURE
Striking-out
The Employment Tribunal struck out a claim for disability discrimination because the Claimant’s father (acting as his representative) had withheld potentially important passages from an expert report on which he relied – Held that the conduct in question was not sufficient to justify striking-out – Bolch v Chipman [2004] IRLR 140 and Blockbuster Entertainment Ltd v James [2006] IRLR 630 applied.

Citations:

[2007] UKEAT 0046 – 07 – 1608

Links:

Bailii

Citing:

See Also – Whitbread Hotel Co Ltd v Bayley EAT 3-Apr-2006
EAT Disability Discrimination: Disability
The Chairman erred in rejecting the evidence of a clinical diagnosis of severe dyslexia for reasons which were not sustainable. Once this diagnosis is accepted, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.258773

Parties preparing case to be heard by the tribunal and wishing to rely on authorities, should include copies of the authorities in the bundles.
EAT PRACTICE AND PROCEDURE
2002 Act and Pre-action Requirements
UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Polkey deduction
Step 1 and 2 DDP; s98A(1) unfair dismissal findings of fact unsupported by evidence. Whether employer established potentially fair reason for dismissal (Redundancy / SOSR) Polkey principle – s98A(2) and 98(4) ERA.

Judges:

Peter Clark HHJ

Citations:

[2007] UKEAT 0597 – 06 – 1005, Times 11-Oct-2007

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.258770

UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
PUBLIC INTEREST DISCLOSURE
In this whistleblowing case, the Claimant had an opportunity to refute an allegation of bad faith, which the Employment Tribunal upheld. Lucas v Chichester Diocesan Housing Assocition Ltd EAT/0713/04; Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 167 applied. The Employment Tribunal upheld a catalogue of 20 acts of misconduct against her. It did not err when it held as matter of fact that the principal reason for her dismissal and her treatment was nothing to do with whistleblowing but was her gross misconduct.

Judges:

McMullen QC J

Citations:

[2007] UKEAT 0394 – 06 – 3105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.258769

EAT Time Limits – Just and equitable extension. Employment Tribunal correct in finding that the evidence before it did not explain why the Claimant had not made an application for unfair dismissal and disability discrimination. The Claimant did not appear and did not give evidence himself. In these circumstances the Employment Tribunal decision was a permissible option and not perverse. Neither was there any evidence of breach of the Human Rights Act 1998.

Judges:

His Honour Judge Birtles

Citations:

[2005] UKEAT 0921 – 04 – 2907, UKEAT/921/04

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Chouafi v London United Busways Ltd CA 3-May-2006
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.229263

EAT Practice and Procedure – Striking-out/dismissal. The Employment Tribunal was faced with a delay in serving witness statements and a mistaken assumption that the hearing would be adjourned by consent. It considered that the Respondent’s conduct had been unreasonable and in breach of orders of the Tribunal so it struck out the Notice of Appearance and refused to permit the Respondent to cross examine the Claimants or to make submissions. The Employment Tribunal failed to consider whether a fair trial was possible or whether it was proportionate to apply a lesser sanction. The Appeal was allowed and the sanction against the Respondent was limited to debarring the Respondent from calling witnesses.

Judges:

His Honour Judge D Serota QC

Citations:

UKEAT/0038/05, [2005] UKEAT 0038 – 05 – 0605

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.229264

Citations:

[1999] UKEAT 1323 – 98 – 0902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.204797

Citations:

[1998] UKEAT 1250 – 98 – 2810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.206757

EAT Procedural Issues – Employment Tribunal
EAT Procedural Issues – Employment Tribunal.

Judges:

His Hon Judge D M Levy QC

Citations:

EAT/1003/01, [2002] UKEAT 1003 – 01 – 0407

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Attrill v Wightlink Ltd EAT 24-Oct-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.177879

(Rec 1993,p II-13) Officials – Benefits for accidents and occupational diseases – Act adversely affecting an official – Basis for calculation of the invalidity benefit provided for by Article 73 (2) (b) and (c) of the Staff Regulations.

Citations:

T-88/91, [1993] EUECJ T-88/91

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 11 July 2022; Ref: scu.172533

UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
DISABILITY DISCRIMINATION – Disability related discrimination
An Employment Tribunal erred in law in its interpretation of Health and Safety Executive v Cadman as to post-termination events, and in its approach to assessing justification following a disability related dismissal.
Its approach to the Polkey calculation, following a justified finding of unfair dismissal, was not sufficiently reasoned in the light of the specific findings made for and against the taking of certain action.

Citations:

[2018] UKEAT 0248 – 17 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.625436

Renewed application for extensions of time for appealing and for permission to appeal.

Judges:

Rimer LJ

Citations:

[2013] EWCA Civ 64

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.470969

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 Judgment. It erred in taking account of the Respondent’s ability to recover from its insurers, and in not accepting that the office had not made a call to the Respondent, the Respondent had made a diary error and sought a postponement before Judgment was made, and shortly thereafter a representative and the Respondent attended.
Substantive and review Judgments set aside, save for costs orders, and full hearing ordered. Observations on Rule 35 (review).

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0006 – 09 – 2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cooke v Glenrose Fish Company EAT 21-Apr-2004
EAT Practice and Procedure
On non-appearance by Applicant (as it turned out, due to negligence by his solicitor), the tribunal proceeded, and dismissed his claim: it then refused to hear a Review because of . .
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 – Chowles (T/A Granary Pine) v West EAT 8-Jan-2009
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.347176

EAT PRACTICE AND PROCEDURE: Review
JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The Tribunal held (a) that Appellant’s unfair dismissal claim was out of time and (b) that she had not previously lodged a grievance relating to her disability discrimination claim, so that the Tribunal had no jurisdiction by virtue of s.32 of the Employment Act 2002. As to (a), appeal dismissed because the decision had been varied on review. As to (b), held that although the acts complained of had been the subject of a grievance it was necessary for the purposes of s.32 that the employer should have been enabled to understand the legal character of the complaint being made; and that since the acts in question had been explicitly characterised as complaints of race and sex discrimination and there were no indications of a complaint of disability discrimination that requirement was not satisfied.

Citations:

[2009] UKEAT 0116 – 09 – 0604

Links:

Bailii

Jurisdiction:

England and Wales

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: 11 July 2022; Ref: scu.346163

EAT PRACTICE AND PROCEDURE
Case management
Appellate jurisdiction/reasons/Burns-Barke
RACE DISCRIMINATION
Burden of proof
Permissible case management decision by Employment Tribunal hearing substantive case to add two issues, pleaded in Form ET1, to list of issues formulated at earlier Case Management Discussion, having raised the matter on its own initiative and heard representations from both parties.
Whether reasons Meek compliant in relation to finding that the Claimant had passed stage 2 of Igen v Wong test.
Whether Employment Tribunal correctly directed themselves as to stage 1 of Igen.
Appeal dismissed.

Citations:

[2009] UKEAT 0063 – 09 – 2204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.347177

EAT Application by Amicus for a penalty to be imposed on the employer following a breach of regulation 19(1) of the Information and Consultation of Employee Regulations 2004. The breach was admitted. The EAT found that it was a serious breach and fixed the penalty at andpound;55,000.

Judges:

Elias P J

Citations:

[2007] UKEAT 0185 – 07 – 2407, [2007] IRLR 885

Links:

Bailii

Statutes:

Information and Consultation of Employee Regulations 2004

Employment

Updated: 11 July 2022; Ref: scu.258501

EAT Unfair dismissal – Exclusions including worker/jurisdiction
These two appeals consider the circumstances in which contracts will be considered illegal so as to preclude an employee from taking claims for unfair dismissal. In Payne the Employment Tribunal found that there was no illegal contract; in Grace that there was. `The EAT upheld the Payne decision and overturned the Grace decision.
In Grace the issue also arose as to whether the Tribunal was entitled to conclude that the circumstances were too speculative for it to make any assessment whether dismissal would have occurred in any event. The EAT held that in the light of recent cases such as Scope v Thornett [2007] IRLR 155 and Software 2000 Limited v Andrews and Ors 2 UKEAT/0533/06, it was not.

Judges:

Elias P J

Citations:

[2007] UKEAT 0644 – 06 – 2507, [2008] ICR 30, [2007] IRLR 840

Links:

Bailii

Citing:

Cited – Carole Thornett v Scope EAT 7-Feb-2006
EAT Unfair Dismissal: Compensation
Compensation for unfair dismissal was capped at 6 months’ forward losses on the ground that the Claimant would have been dismissed at that stage. Since the parties could . .
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 . .

Cited by:

Appeal from – 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 . .
Cited – Connolly v Whitestone Solicitors EAT 24-Jun-2011
EAT JURISDICTIONAL POINTS – Fraud and illegality
Contract of employment – illegality in performance.
An employee who knows that his assertion to be self employed is unsustainable and yet claims to the . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.258503

EAT Unfair Dismissal – Reason for dismissal including substantial other reason
The claimant, who was employed as a refuse collection driver, was dismissed for misconduct consisting of taking an unauthorised break and failing to complete the day’s tasks. The Tribunal found his dismissal to have been unfair for various reasons. On appeal, the Employment Appeal Tribunal were satisfied that the Tribunal had erred in law in concluding as they had done and that their decision should, accordingly, be quashed. The Employment Appeal Tribunal substituted a finding that the dismissal had been fair.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0065 – 06 – 0307

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.258505

EAT Part time chairmen of tribunals are not workers within the legislation allowing them to claim payment of a pension. Regulation 17 was compatible with the Directive.

Judges:

Elias J

Citations:

[2007] UKEAT 0140 – 07 – 2307, Times 04-Nov-2007, [2007] ICR 1553

Links:

Bailii

Statutes:

Part-time Workers Framework Directive 97/81/EC, Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 17

Jurisdiction:

England and Wales

Cited by:

Cited – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.258502

EAT Transfer of Undertakings – Transfer
In deciding whether there has been a relevant transfer of an undertaking, the finding of facts by the Employment Tribunal is subject to an overall assessment, which raises a question of law. The approach of Lord Hoffman in Lawson v Serco [2006] ICR 250 para 34 to the role of an Employment Tribunal was applied. The tribunal misdirected itself in holding that there was no stable economic entity capable of being transferred, and in holding that in making this decision it was relevant to know whether the employees were assigned to any particular entity. The judgment of the tribunal was reversed and the case remitted now for hearing on unfair dismissal against the transferee.

Judges:

McMullen QC HHJ

Citations:

[2007] UKEAT 0623 – 06 – 1505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.258497

(Cayman Islands) The plaintiff had been wrongfully dismissed from his post as a public officer. He appealed against a refusal to award him his pay.
Held: The dismissal from a public office being unlawful, it was void and ineffective to remove him from office. He remained entitled to his full salary and other benefits.
Lord Bingham said: ‘It is a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlap), the dismissal is, as between the public authority and the office-holder, null, void and without legal effect, at any rate once a court of competent jurisdiction so declares or orders. Thus the office-holder remains in office, entitled to the remuneration attaching to such office, so long as he remains ready, willing and able to render the service required of him, until his tenure of office is lawfully brought to an end by resignation or lawful dismissal.’

Judges:

Lord Bingham

Citations:

[2007] UKPC 50, Times 27-Jul-2007, [2007] 1 WLR 2839

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.258433