EAT Cox J allowed an appeal against the refusal of a review application on the ground that the Chairman had not ‘directed himself as to the wider considerations required when exercising his powers of review’. These were the nine CPR 3.9(1) factors.

Judges:

The Honourable Mrs Justice Cox

Citations:

EAT/0080/07/LA, [2007] UKEAT 0080 – 07 – 0105

Links:

EAT, Bailii

Cited by:

Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.258134

EAT Unfair Dismissal – Exclusions including worker – contributory fault
EAT Unfair Dismissal – Exclusions including worker/jurisdiction.

Judges:

The Honourable Lord Johnston

Citations:

EAT/0030/04, [2004] UKEAT 0030 – 04 – 1511

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.257236

EAT Unfair Dismissal – Exclusions including worker/jurisdiction – 11AA and 8EE – Unfair Dismissal – dismissal/ambiguous resignation – Practice and Procedure – admissibility of evidence
Appellant called to disciplinary meeting and told that he would be dismissed for misconduct. He negotiated a retirement package and left on its terms. The Tribunal found that he had left voluntarily and was not dismissed.
Held 1) that the Tribunal were entitled ,having asked the correct question – which caused him to leave – to find that he had left because of the package; 2) that the Tribunal were entitled to exclude evidence as to whether the Appellant was or was not guilty of misconduct.

Judges:

His Honour Judge J Burke Qc

Citations:

[2006] UKEAT 0451 – 05 – 0704, UKEAT/0451/05

Links:

Bailii, EAT

Cited by:

Appeal from – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257743

EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

His Hon Judge J Burke Qc

Citations:

EAT/733/02, [2003] EAT 0733 – 02 – 0805, [2003] UKEAT 0733 – 02 – 0805

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.256495

EAT Unfair Dismissal – Reasonableness of dismissal.

Judges:

The Honourable Mr Justice Bean

Citations:

[2005] UKEAT 0259 – 05 – 0507, UKEAT/0259/05

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.257577

EAT Claimant sought to add a new respondent by way of amendment, almost seven months after he was dismissed by the existing first respondents and some four months after he had lodged his claim with the tribunal. The tribunal allowed the amendment on the basis that the claimant was not adding a new claim but ‘merely seeking to amend to take account of the situation in which he found himself’ and it was just and equitable to allow the amendment. The new respondents appealed to the Employment Appeal Tribunal who upheld the appeal and remitted to a freshly constituted tribunal to rehear the amendment application. Observations made regarding the guidance on amendments given in Selkent Bus Co Ltd v Moore [1996] ICR 836.

Judges:

The Honourable Lady Smith

Citations:

[2006] UKEAT 0009 – 06 – 1108, UKEATS/0009/06

Links:

Bailii, EAT

Citing:

Cited – Gillick v BP Chemicals EAT 1993
Ms Gillick had made an application based on sex discrimination in the first place against an agency which had contracted out her services to various divisions of BP Chemicals Ltd. The Respondents were the Company which had done that and in their . .
Cited – Selkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257867

EAT Practice and Procedure – 2002 Act and pre-action requirements.
The employee alleged that she had been discriminated against on racial grounds with respect to the two acts occurring in the course of disciplinary procedures, and her dismissal. The Tribunal found that the statutory grievance procedures had not been complied with in relation to these matters. They allowed the claim relating to the dismissal to go to a full hearing on the grounds that there was no requirement to lodge a grievance with respect to that matter by virtue of reg. 6(5) of the Employment Act 2002 (Dispute Resolution) Procedures 2004. However, they held that the failure to comply with the procedures with respect to the other two matters precluded them from exercising jurisdiction.
The EAT upheld the appeal and held that reg.6(5) should be broadly construed and therefore the statutory grievance procedures were inapplicable to those complaints. The EAT followed the cases of Department for Constitutional Affairs v Jones UKEAT/0333/06 and Lawrence v HM Prison Service UKEAT/0630/06.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2007] UKEAT 0253 – 07 – 0307, UKEAT/0253/07/JOJ

Links:

Bailii, EATn

Employment

Updated: 11 July 2022; Ref: scu.258099

EAT The principal holding is that a Tribunal is entitled, in accordance with good employment relations practice, to hold that an employee unfairly dismissed need not give credit for earnings achieved in new employment during a period when notice pay was made by the former employer. Norton Tool Co Ltd v Tewson [1972] IRLR 86 NIRC, affirmed in Babcock FATA Ltd v Addison [1987] IRLR173 CA applied. Hardy v Polk (Leeds) Ltd [2004] IRLR 420 EAT not followed. Case remitted in part for Tribunal to decide future pension loss, for it awarded 10 years when neither side claimed more than 5.

Judges:

His Honour Judge McMullen Qc

Citations:

UKEAT/0675/04/CK, [2005] ICR 453, [2004] UKEAT 0675 – 04 – 1312

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.257185

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. Alleged perversity and failure to take into account relevant evidence as regards mitigation of loss.

Judges:

Her Honour Judge Wakefield

Citations:

[2004] UKEAT 132 – 04 – 3009, UKEAT/0132/04

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.257058

EAT Unfair Dismissal – Exclusions including worker/jurisdiction.

Judges:

The Honourable Lord Johnston

Citations:

EATS/0034/04, [2004] UKEAT 0034 – 04 – 1312

Links:

Bailii, EAT

Cited by:

Appeal from – Diosynth Limited v Morris Thomson IHCS 1-Feb-2006
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257186

EAT The employee made a claim for sexual harassment against her employer and an individual who effectively ran the company. No response was entered and the Chairman entered a default judgment on liability only. Some months later a remedies hearing was fixed and the individual (the Second Appellant) turned up and wished to make representations. He contended that he had in fact written to the Tribunal seeking a review of the default judgment. The Chairman held that there was no valid application for review and that in any event he would have exercised his discretion against granting it. He told the individual that thereafter he could not participate in the proceedings by virtue of Rule 9 of the Employment Tribunal Rules of Procedure. Compensation was fixed. The Appellants contended that the Chairman ought to have allowed the application to set aside the default judgment, alternatively should at the very least have permitted the Appellants to take part in the remedies hearing since they were present and wished to do so. They also challenged the assessment of compensation on various grounds. The EAT dismissed the appeal against the default judgment on liability but held that the Chairman should have sought to permit them to participate in the remedies hearing, and that there was an admittedly tortuous and somewhat artificial procedure whereby that could have been done. The EAT made on order that the Appellants should be allowed to take part in that hearing and set aside the award of compensation. In the circumstances it did not consider the ground of appeal directed solely at the assessment.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

UKEAT/0226/06, [2006] UKEAT 0226 – 06 – 0208

Links:

EATn, Bailii

Citing:

Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – NSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257881

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 make attempts to work together, applying Gover v Propertycare and cases cited in it, the Employment Tribunal could not sensibly recreate the world as it might have been and should not have reduced the losses. Equally, the judgment that the Claimant would have been made redundant at that time was perverse, since the evidence of the Respondent, on whom the burden of proving that loss should be capped lies was that the service of which the Claimant was the lynchpin would have continued.

Judges:

His Honour Judge McMullen Qc

Citations:

[2006] UKEAT 0477 – 05 – 0702, UKEAT/0477/05, [2007] IRLR 155

Links:

Bailii, EATn

Cited by:

Appeal from – Scope v Thornett CA 27-Nov-2006
The employee was an engineer. She worked on field assessments and in the manufacture and adaptation of equipment. She was suspended for alleged bullying and harassment and given a final written warning. It was proposed that she should be relocated . .
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 – Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd EAT 25-Jul-2007
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257742

EAT Practice and Procedure – Time for appealing.
Unlike in Midland Packaging v Clark [2005] 2 AER 66, the EAT fax receipt log was made available, by reference to which para 1.8.2. of the EAT Practice Direction can and should be operated. Midland Packaging not followed and disapproved, so that a Notice of Appeal (and all required documents) must be received complete by the EAT, as recorded by its fax receipt log, by 4pm on the relevant day if to be in time. Both appeals consequently were out of time, but the exceptional circumstances of (i) the parties’ reliance upon Midland Packaging (ii) the change in the law justified an extension and, as with the Practice Statement 7 February 2005, litigants represented and unrepresented are now on notice.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEATPA/0030/05/DZM, [2005] UKEAT 0534 – 05 – 2607, UKEATPA/0534/05, [2005] ICR 1702, [2005] IRLR 782, [2005] 4 All ER 1346

Links:

Bailii, EATn, EATn, EATn, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Diana Woodward v Abbey National Plc EAT 20-Jul-2005
EAT Public Interest Disclosure
Claimant claims that some years after the termination of her employment, she was caused detriment by her ex-employers due to having been a whistleblower, and makes claims . .

Cited by:

See Also – J P Garrett Electrical Ltd v Cotton EAT 15-Nov-2005
EAT National Minimum Wage
Employment Tribunal correctly construed the relevant clause in a contract of employment as entitling the Claimant to be paid at the rate of the NMW, albeit, as an apprentice, he . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257557

EAT Unlawful Deduction from Wages – Ready, Willing and Able to Work
As the Employment Tribunal had found that the Respondent had the right to take the Claimant off stand-by duties on health and safety grounds, the consequent reduction in pay was not an unauthorised deduction. He was then paid what was properly payable under Employment Rights Act 1996 s 13(3). The Employment Tribunal also relied on authorities without giving the Claimant the opportunity to make submissions, and the authorities did not support the Employment Tribunals reasoning. Albion Hotel applied. Employment Tribunal Judgment reversed.

Judges:

His Honour Judge McMullen QC

Citations:

[2006] UKEAT 0172 – 06 – 2208, UKEAT/0172/06

Links:

Bailii, EAT

Citing:

Cited – Lindsey Beveridge v KLM UK Ltd EAT 16-Feb-2000
EAT The claimant appealed refusal of her claim for unlawful deduction. She had been off sick long term. Her doctor certified her fit to return, and she asked to return, but her employer waited a further six weeks . .

Cited by:

Appeal from – Camden Primary Care Trust v Atchoe CA 9-May-2007
Appeal against dismissal of claim of unauthorised deduction from wages. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.257859

EAT Unfair Dismissal – Automatically unfair reasons / compensation
Employment Tribunal decision that Respondent has failed to comply with Schedule 2 Part 1 of the Employment Act 2002 contrary to authorities of Alexander v Bridgen Enterprises, YMCA Training v Stewart and Silman v ICTS.`
The Employment Tribunal also took the wrong multiplicand for assessing future loss. The correct multiplicand was the sum the Claimant would have earned had he continued working.
The Employment Tribunal also made an award of andpound;500 in respect of loss of statutory rights when the Claimant had only sought andpound;200 and no notice was given to the Respondent of the possibility of awarding a greater sum.

Judges:

Serota QC J

Citations:

[2007] UKEAT 0508 – 06 – 2004, UKEAT/0508/06 and UKEAT/0522/06

Links:

Bailii, EATn

Statutes:

Employment Act 2002

Citing:

Mentioned – 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: 11 July 2022; Ref: scu.254588

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

His Honour Judge Peter Clark

Citations:

EAT/135/00, [2000] UKEAT 135 – 00 – 0707

Links:

EAT, Bailii

Employment

Updated: 11 July 2022; Ref: scu.255028

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal.

Judges:

His Hon Judge J R Reid QC

Citations:

EAT/792/01, EAT/226/01, [2002] UKEAT 226 – 01 – 0905

Links:

Bailii, EAT

Citing:

See Also – United Fish Industries (UK) Ltd v Herbert EAT 3-Apr-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.255819

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal.

Judges:

The Honourable Mr Justice Bell

Citations:

[2001] UKEAT 314 – 99 – 1101, EAT/314/99, [2001] IRLR 132

Links:

Bailii, EATn

Citing:

See Also – Edwards v Hanson School EAT 30-Jun-1999
. .

Cited by:

Mentioned – Bruce v Dignity Funerals Ltd (Formerly SCI Funerals Ltd) EAT 22-Nov-2002
. .
Cited – McAdie v Royal Bank of Scotland CA 31-Jul-2007
The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.255308

EAT Unfair Dismissal – Reinstatement/re-engagement.

Judges:

The Honourable Lord Johnston

Citations:

EAT/624/99, [1999] UKEAT 624 – 99 – 0311, [2000] IRLR 4

Links:

EAT, Bailii

Employment

Updated: 11 July 2022; Ref: scu.254835

EAT PRACTICE AND PROCEDURE
2002 Act and Pre-Action Requirements
The employers contended that the Tribunal should not hear a case of unfair dismissal because the employee had failed to comply with the statutory grievance procedure. The Tribunal rejected the argument, heard the case and made a finding of unfair dismissal. The Tribunal held that the employer had not raised the issue within the meaning of s32(6) of the Employment Act 2002 simply by stating in their response that no written grievance had been raised. Further, and in any event, the procedure was inapplicable because the grievance fell within reg6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The EAT reluctantly held that the Tribunal had erred in reaching both conclusions and that they ought not to have heard the case.

Judges:

Elias P J

Citations:

[2007] UKEAT 0087 – 07 – 0207

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.254348

EAT Unfair dismissal – Procedural fairness/automatically unfair dismissal
The Employment Tribunal found as a fact that employee was not provided with the Employment Act 2002 Schedule 2 Part 1 Step 2 information but went on to hold that s.98A ERA 1996 was not applicable.

Judges:

His Honour Judge Birtles

Citations:

[2007] UKEAT 0032 – 07 – 2303, UKEAT/0032/07

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.254368

EAT RACE DISCRIMINATION – Direct
SEX DISCRIMINATION – Direct
Appeal against findings of sex, race and victimisation discrimination. The EAT held that there was a firm evidential basis for the findings of sex and victimisation discrimination, but that the Employment Tribunal erred in its approach to the question of race discrimination. Since there was no evidence which could possibly justify that inference referred to in the decision, the EAT substituted a finding that there had been no such discrimination.

Judges:

Elias P J

Citations:

[2007] UKEAT 0615 – 06 – 2706

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253771

EAT Practice and Procedure – Striking-out/dismissal and Case management – Appeals against interim Judgments of Employment Tribunals were dismissed when the Employment Tribunal subsequently struck out the Claimant’s case and the EAT refused to allow an appeal against it. In a separate appeal, it was an abuse of the process of the EAT to consider an appeal relating to a stay, when the condition relating to the stay had been discharged.

Judges:

McMullen QC J

Citations:

[2007] UKEAT 1600 – 06 – 2606

Links:

Bailii

Citing:

See Also – Edem v Egg Plc, J Croft EAT 16-Jan-2006
EAT Practice and Procedure – Striking-out/dismissal – Contract of Employment: Damages for Breach of Contract
On Respondent’s application the Employment Tribunal struck out a variety of the Appellant’s . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.253770

Unlawful deduction from wages – Exclusions
National minimum wage
This case related to an unhappy dispute between an employer and her former nanny. It concerned a variety of small issues none of any general interest.

Judges:

Reid QC HHJ

Citations:

[2007] UKEAT 0304 – 06 – 0304

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253768

EAT Unfair Dismissal – Constructive dismissal.
EAT Unfair Dismissal – Constructive dismissal
Nature of Appellant’s pleaded claim (constructive unfair dismissal) misunderstood as claim for breach of contract. Appeal allowed; case remitted for hearing.

Judges:

Peter Clark J

Citations:

[2007] UKEAT 0034 – 07 – 0806, UKEAT/0034/07/DM

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.254347

EAT Unfair Dismissal – Reasonableness of dismissal
Two employees of Royal Mail were dismissed for admittedly gross misconduct, namely wilful delay of mail. An Employment Tribunal, by a majority, found the dismissal to have been unfair taking account of circumstances which included that the delayed mail was ‘junk mail’. On appeal the Employment Appeal Tribunal held that it erred in law in so doing and had also failed to recognise that dismissal was an option that was, in the circumstances, open to the Respondent. It reversed the judgment of the Tribunal and dismissed the claims.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0056 – 06 – 3005, UKEATS/0056/06/MT

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.253727

EAT Sick Pay and Holiday Pay
ET were asked to determine what ‘pay’ meant in the context of the Employers’ Sick Pay Scheme. It did so by reference to what it considered were normal hours of work as provided by the contract. Contract provided for minimum of 15 hours paid weekly work ‘but could be more’: C never worked less than 30 for 10 years.
Held: ET not entitled to say ‘pay’ meant ’15 hours pay per week’.

Judges:

The Honourable Mr Justice Langstaff

Citations:

[2007] UKEAT 0580 – 06 – 0802, UKEAT/0580/06/LA

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.253722

EAT Transfer of undertakings – Acquired rights directive / Entity
1. The transferor provided ground handling services to the putative transferee. The Employment Tribunal fell into error in finding that there could be no TUPE transfer, following the insolvency of the transferor, in circumstances where the undertaking said to have been transferred was not a stable economic identity in the hands of then transferor, because there was insufficient dedication of staff, premises and equipment to the transferee’s contract. The Employment Tribunal was bound to consider the position as at the date of the putative transfer and determine whether a stable economic entity existed at that date carved out of the larger entity of which it had formed part when in the hands of the transferor. Fairhurst Ward Abbotts Ltd v Botes Building Ltd [2004] IRLR 304 applied.
2. The TUPE Regulations are capable of applying to any transfers effected consequent upon an insolvency, including in those cases in which the insolvent transferor does not continue to trade, or where no part of its undertaking is transferred as a going concern; Belhaven Brewery v Berekis UKEAT/724/92 followed, Perth and Kinross Council v Donaldson 2004 IRLR 121 not followed.

Judges:

His Honour Judge Serota QC

Citations:

[2007] UKEAT 0603 – 06 – 2706, UKEAT/0603/06/DM, [2007] ICR 1593

Links:

Bailii, EATn

Cited by:

Cited – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.253736

EAT Practice and Procedure – Disclosure
Disclosure / further information sought. Relevance of material /information to issues in case (Constructive s.103A ERA automatically unfair dismissal). Possible P.1.1./ confidentiality claim by relevant authorities.

Judges:

Peter Clark J

Citations:

[2007] UKEAT 0285 – 07 – 2007, UKEAT/0285/07/MAA

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.253734

EAT PRACTICE and PROCEDURE – Bias, misconduct and procedural irregularity
Chairman decided an issue which was not properly before him.

Judges:

Underhill J

Citations:

[2007] UKEAT 0153 – 07 – 2405, UKEAT/0153/07/ZT

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.253728

EAT UNFAIR DISMISSAL – Exclusions including worker/jurisdiction – Where a Member State has complied with Article 18 of the Equal Treatment Directive, the fundamental rights and general principles of community law do not require it to ignore its domestic provisions which may be discrimatory during the period permitted by the Directive for transposition of its terms into domestic law.

Judges:

Wilkie J

Citations:

[2007] UKEAT 0065 – 07 – 2206

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253733

Insolvency – Transfer of Undertakings – Transfer – Transfer of a business under TUPE 2006. Did regulation 8 apply so as to make the Secretary of State liable for certain debts to employees? The EAT held not, upholding the appeal. Certain observations as to the construction of regulation 8.

Judges:

Elias J P

Citations:

[2007] IRLR 928, [2008] ICR 54, [2007] UKEAT 0119 – 07 – 2706

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253735

EAT Contract of Employment – Definition of employee
A was the majority shareholder and a director of a company which went into administration. The issue was whether he was employed under a contract of service. The ET held he was not.
Held: this was a conclusion to which the ET was entitled to come.

Judges:

Reid QC

Citations:

[2007] UKEAT 0618 – 06 – 2106

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253732

Short term agency workers employed under contracts for less than three months, were not entitled to payment of statutory sick pay.

Citations:

[2007] EWCA Civ 626, Times 27-Jul-2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 July 2022; Ref: scu.253708

EAT Practice and Procedure – 2002 Act and Pre-action Requirements

Six weeks after the Claimant’s dismissal by the Respondent, she attended a meeting with management and her union officer. Further information about her selection for redundancy was promised and was forthcoming. On advice from her union, the Claimant launched a grievance. She did so within the three-month limit for presenting an unfair dismissal claim, but the Respondent contended that as she had been dismissed it was under no obligation to respond to a grievance. Although in a sense this was an appeal to the respondent against her dismissal, the only statutory question when she submitted a claim and sought the benefit of the three-month extension to the primary limitation period was whether she reasonably believed that a dismissal procedure was being followed. As a matter of construction of the grievance letter and appreciation of the oral evidence she gave, the Tribunal had wrongly focused on whether there was an appeal and was wrong to conclude that she did not reasonably believe that a procedure was being followed. The appeal against that judgement was allowed.

Citations:

[2007] UKEAT 0090 – 07 – 2103, UKEAT/0090/07/DM

Links:

Bailii, EATn

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.253443

EAT Appellate jurisdiction/Reasons/Burns-Barke
Whether, following a successful appeal to the EAT leading to remission of an issue to a fresh ET for rehearing, the new ET is bound by findings of fact made by the original ET. Answer: No.

Judges:

Clark J

Citations:

[2007] UKEAT 0178 – 07 – 0506

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253448

EAT Practice and Procedure – Striking-out/dismissal
The Appellant applied to the Employment Tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1. The Employment Tribunal struck out the claim, refusing leave to amend on the ground that rule 1(4)(a) had not been complied with in that the name on the ET1 was fictitious. Remitted to the Employment Tribunal to consider whether there were grounds on which it would not be just and equitable to allow the amendment or whether the amendment should be allowed.

Judges:

Reid QC J

Citations:

[2007] UKEAT 0625 – 06 – 1104

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253444

EAT Practice and Procedure – Amendment / 2002 Act and Pre-action Requirements
Where a claim form is issued prematurely by reason of failure to comply with Section 32(2) of the Employment Act 2002 an Employment Tribunal has jurisdiction to permit the claim form to be amended when the relevant time limit had expired provided it contains one or more causes of action that are not caught by Section 32(2) .Where the only cause of action is one caught by Section 32(2), amendment when the relevant time limit has expired is not permissible by reason of the decision in London Borough of Hounslow v Miller (UKEAT/0645/06).

Citations:

[2007] UKEAT 0181 – 07 – 2006

Links:

Bailii

Citing:

Cited – Prakash v Wolverhampton City Council EAT 1-Sep-2006
EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He . .
Cited – London Borough of Hounslow v Miller EAT 28-Mar-2007
EAT Contract of Employment -and- Unfair Dismissal

The employee lodged two complaints, one of disability discrimination and one of unfair dismissal.

Tribunal Chairman stayed the complaint of disability . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.253521

EAT NATIONAL MINIMUM WAGE
Inferring discrimination
Injury to feelings
A employed R as night manager at his hotel. R was a Nigerian but had permission to work in the UK. A paid R less than the minimum wage on the basis that he was vulnerable. When R sought to obtain a NI number A first tried to discourage him and then dismissed him. Was the ET entitled to find race discrimination and (if so) was it entitled to make the awards it did?

Judges:

Reid QC J

Citations:

[2007] UKEAT 0573 – 06 – 3005

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.253162

EAT Unfair Dismissal – Constructive dismissal
The Employment Tribunal found that an employee had been constructively dismissed in circumstances where he resigned following his employers’ refusal to pay him benefits under an ‘Injury on Duty’ scheme. The tribunal found that, in so doing, the employers had acted as no reasonable employer would have done and that they were motivated by being ill disposed towards the employee as he had become a ‘thorn in the flesh of management’ over health and safety issues. On appeal, it was argued that the tribunal had failed to apply the appropriate ‘contract’ test. The Employment Appeal Tribunal were not persuaded that the tribunal had failed to do so.

Judges:

Lady Smith Hon

Citations:

[2007] UKEAT 0051 – 06 – 0805, UKEATS/0051/06

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.253161

EAT Unfair dismissal – Reason for dismissal including substantial other reason
Race discrimination – Indirect
Appellant was dismissed by the Respondent, who should have first obtained the approval of the Lord Chancellor but instead followed no procedure at all, disciplinary or otherwise. The reason was that she had been absent from her post in London for over 9 years, was now living in Wales, and delivered an invitation to return. Extensive grounds of appeal were reduced to two for full hearing: in relation to disclosure, and arguing that the Tribunal was obliged to apply s.98A(2) to hold the dismissal unfair. In particular, it was argued that the effective decision to dismiss was that of a third party (the Lord Chancellor) and thus it could not be proved by the evidence called by the Respondent what he – an independent third party – would have decided.
The appeal was rejected. The Appeal Tribunal lent further support to Kelly-Madden in its approval to ‘a procedure’.

Judges:

The Honourable Mr Justice Langstaff

Citations:

[2007] UKEAT 0365 – 06 – 1602, UKEAT/0365/06/DM

Links:

Bailii, EAT

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: 11 July 2022; Ref: scu.253158

EAT Practice and Procedure – 2002 Act and pre-action requirements
Appeal from a PHR by a Chairman that there had been no statutory grievance following Canary Wharf Management Ltd v Edebi [2006] IRLR 416. The EAT held the test was a permissible option open to the Chairman on the facts of the case. Furthermore the Chairman was correct to hold that as there was no statutory grievance raised the ET had no power to extend time under s.111 ERA or s.76(5) SDA following London Borough of Hounslow v Mr A Millen (UKEAT/0645/06).

Citations:

[2007] UKEAT 0071 – 07 – 1805

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: 11 July 2022; Ref: scu.252468

EAT CONTRACT OF EMPLOYMENT – Incorporation into Contract
Implied Terms /Variation /Construction of term
Unlawful deductions case. It depended on the contractual right of certain shift workers. They alleged that they had rights incorporated into their contracts from a Collective Agreement. Was the Collective Agreement finalised before the employers indicated an unwillingness to apply its terms? Or had the employers withdrawn the offer before acceptance? EAT held, reversing the Employment Tribunal, that the offer had been withdrawn and that there was no contractual right to payment.

Citations:

[2007] UKEAT 0624 – 06 – 1805

Links:

Bailii

Employment

Updated: 11 July 2022; Ref: scu.252470

EAT Unfair dismissal – Contributory fault/ Polkey deduction
Automatic unfair dismissal under s.98A(1) ERA. Order for reinstatement made. ET found no Polkey deduction after considering Burchell test. Substituted own view as to what would be a reasonable investigation. No adequate fact-finding or reasoning to explain finding of no contributory fault. Appeals allowed; remedy remitted.

Citations:

[2007] UKEAT 0117 – 07 – 0105, UKEAT/0118/07, UKEAT/0117/07

Links:

Bailii, EATn

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: 11 July 2022; Ref: scu.252474

The claimant had asserted constructive dismissal. He succeeded on appeal to the EAT, and the employer now appealed. He had asserted bullying by his managers, and then was absent from work after developing depression. The commission said that he was debarred from claiming having not completed the grievance procedure or provided a written statement of his grievance. He claimed to be excused from compliance

Judges:

Waller LJ VP, Buxton LJ, Lloyd LJ

Citations:

[2007] EWCA Civ 428

Links:

Bailii

Statutes:

Employment Act 2002 32(2), Employment Act 2002 (Dispute Resolution) Regulations 2004 11

Jurisdiction:

England and Wales

Citing:

Appeal from – Lipscombe v Forestry Commision EAT 28-Sep-2006
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke;
2002 Act and Pre-action Requirements
The Employment Tribunal failed correctly to construe the Claimant’s resignation letter as . .
Cited – H Thorpe, Soleil Investments Ltd v M W Poat, M R Lake EAT 18-Oct-2005
EAT When considering whether the claimant had first satisfied the requirement to have put his complaint in writing before later claiming constructive dismissal, the provisions of the company’s own grievance . .
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 July 2022; Ref: scu.251773

EAT Unfair dismissal – Reasonableness of dismissal

Reasonableness of dismissal under s.98(4) ERA. ET took into account irrelevant factors and failed to take into account relevant factors when considering whether employer carried out a reasonable investigation. Finding of unfair dismissal reversed.

Citations:

[2007] UKEAT 0471 – 06 – 2203, UKEAT/0471/06

Links:

Bailii, EAT

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: 11 July 2022; Ref: scu.251801

EAT Unfair Dismissal – The Employment Tribunal failed to consider statutory guidance for the dismissal of a teaching assistant. The case would be remitted for re-hearing on this point to the same Employment Tribunal.

Judges:

His Honour Judge McMullen QC

Citations:

[2007] UKEAT 0393 – 06 – 2802, UKEAT/0393/06

Links:

Bailii, EAT

Employment

Updated: 11 July 2022; Ref: scu.251800

EAT Practice and Procedure – Postponement or stay
There was no error of law in the Employment Tribunal’s decision to confirm the previous decision of a regional chairman to refuse the Respondent’s application to postpone the hearing for a third time. It was within its discretion to hold that the Respondent had produced no medical evidence to support his contention that he was unfit to attend.

Judges:

McMullen QC

Citations:

[2007] UKEAT 0595 – 06 – 0703

Links:

Bailii

Employment

Updated: 10 July 2022; Ref: scu.251664

EAT Practice and Procedure – 2002 Act and pre-action requirements – ET said to have no jurisdiction because ET1 issued less than 28 days after a grievance had been submitted. However, S32(6) saved the decision they reached: nothing was obvious from the papers nor drawn to the Tribunal’s attention which meant they could have realised that that was the case. Appeal therefore dismissed.

Judges:

The Honourable Mr Justice Langstaff

Citations:

[2007] UKEAT 0016 – 07 – 2102, UKEAT/0016/07

Links:

Bailii, EAT

Employment

Updated: 10 July 2022; Ref: scu.251663

EAT Practice and Procedure – Bias, misconduct and procedural irregularity; Perversity – Constitution of Employment Tribunal. Unlawful deductions claim; Chairman sitting alone. No procedural irregularity/want of jurisdiction (see Gladwell per Elias P). No substantive perversity. Appeal dismissed.)

Judges:

Peter Clarke J

Citations:

[2007] UKEAT 0511 – 06 – 0105, [2007] IRLR 471

Links:

Bailii

Employment

Updated: 10 July 2022; Ref: scu.251593

Practice and Procedure – Striking out/dismissal
Appellant failed to put in ET3 in time and was debarred from defending. On review, the Chairman gave no reasons as to why the balance of prejudice and the interests of justice were ‘not served by granting the review.’
Held: the decision was not Meek compliant. Following D and H Travel v Foster the purpose of the sanction was not punishment but to achieve the overriding objective of dealing with cases justly. In the absence of any indication of real prejudice to the Respondent and there being an arguable defence to the claim, the appeal would be allowed and the Appellant’s ET3 accepted out of time.

Judges:

Reid QC HHJ

Citations:

[2007] UKEAT 0203 – 07 – 2604, UKEAT/0203/07

Links:

Bailii, EAT

Employment

Updated: 10 July 2022; Ref: scu.251588

The claimant had been employed by the respondent, but after taking maternity leave had been made redundant. The employer claimed her continuous employment had been broken.
Held: The section intended to protect continuous employment despite what might otherwise be breaks in employment. Nevertheless, the parties had to agree that employment would continue. That required both parties to come to an agreement. That had not happened here. The employer should have disclosed the position, but failing to do so did not change it.
Company’s appeal from order – date of commencement of employment affecting calculation of redundancy payment.

Judges:

Peter Gibson, Clarke, Scott Baker, LJJ

Citations:

Times 30-Jan-2003, [2002] EWCA Civ 1852, [2003] IRLR 74, [2003] ICR 443, [2002] All ER (D) 205

Links:

Bailii

Statutes:

Employment Rights Act 1996 212

Jurisdiction:

England and Wales

Citing:

Appeal From – Curr v Marks and Spencer Plc EAT 6-Mar-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 July 2022; Ref: scu.227934

Citations:

[2002] UKEAT 466 – 01 – 2110

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 July 2022; Ref: scu.203155

VICTIMISATION DISCRIMINATION – Detriment
UNFAIR DISMISSAL – Reinstatement/re-engagement
UNFAIR DISMISSAL – Compensation
The ET did not err in law in –
(1) concluding that in one respect the Respondent had committed an act of victimisation and public interest disclosure detriment
(2) declining to order re-instatement or re-engagement for unfair dismissal
(3) its approach to the question whether and to what extent a reduction should be made under section 122(2) or section 123(1) of the Employment Rights Act 1996 where the Claimant had, without the knowledge of the Respondent, recorded a meeting.

Judges:

Richardson HHJ

Citations:

[2019] UKEAT 0284 – 17 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 10 July 2022; Ref: scu.639332

TRANSFER OF UNDERTAKINGS – Transfer
This issue in the appeal was whether, following a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations2006 (‘TUPE’), the transferor continues to be bound by the duty, pursuant to s.9 of the National Minimum Wage Act 1998 (‘NMWA’), to maintain wage records in respect of the transferred employees. The ET had held that the Respondent transferor continued to be bound by that duty and was therefore the appropriate subject of a production notice. The Respondent appealed.
Held: Allowing the Respondent’s appeal, the said duty transferred to the transferee upon transfer pursuant to Reg 4(2) of TUPE. Accordingly, the Respondent transferor was no longer required to maintain such wage records and was not required to comply with the production notice. There was no warrant in the legislative scheme for carving out an exception from the wide scope of Reg 4(2) in respect of NMWA matters.

Citations:

[2019] UKEAT 0170 – 18 – 0205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 10 July 2022; Ref: scu.639328

Appeal as to Financial Support Direction

Citations:

[2019] EWCA Civ 1032

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 10 July 2022; Ref: scu.638819

PRACTICE AND PROCEDURE – Postponement or stay
Following a Liability Hearing, the Respondents were found liable for unfair dismissal. They appealed against that finding to the Employment Appeal Tribunal (‘EAT’) and the appeal was allowed through the sift and directions given.
Following directions being given by the Employment Tribunal (‘ET’) on Remedies, the parties were given nine working days’ notice of a Remedies Hearing. The Respondents immediately applied for a postponement of the Remedies Hearing until after the hearing of the Appeal mainly on the grounds that counsel and the HR representative were not available for the scheduled Remedies Hearing. The Employment Judge (‘EJ’) simply responded by saying that he refused the application because the existence of the Appeal was not a sufficient ground for postponing a Remedies Hearing and that further delay was not in the interests of justice. The Respondents immediately applied for a reconsideration pointing out that the existence of the Appeal was not the primary ground for the application and reminding the EJ of counsel’s availability. The EJ responded in almost identical terms.
The Appeal was allowed: the EJ had either failed to engage with the application as he should have or had given inadequate reasons for his decision. The matter was remitted to the Regional EJ to decide in the light of all relevant matters when the Remedies Hearing should take place.

Citations:

[2018] UKEAT 0074 – 18 – 0111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 10 July 2022; Ref: scu.631854

EAT INSOLVENCY
Definition of employee
Insolvent employment agency – Whether Claimant employed by agency under contract of service – mutuality of obligation – control – decision of ETC/M that he was an employee reversed. No claim against S of S out of Insolvency Fund.

Judges:

His Honour Judge Peter Clark

Citations:

[2007] UKEAT 0591 – 06 – 1602, UKEAT/0591/06

Links:

Bailii, EAT

Employment

Updated: 10 July 2022; Ref: scu.251405

EAT Unfair Dismissal – Reason for dismissal including substantial other reason / Reasonableness for dismissal
4 grounds of appeal challenging reasonableness of Employment Tribunal decision allowing a claim for unfair dismissal. All 4 grounds held to be the questions of fact open to Employment Tribunal on the evidence. Appeal dismissed. No error of law..

Judges:

His Honour Judge Birtles

Citations:

[2007] UKEAT 0564 – 06 – 0903, UKEAT/0564/06

Links:

Bailii, EAT

Citing:

Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 July 2022; Ref: scu.251406

EAT Preliminary issues
The EAT concludes that in construing the statutory definition of ‘worker’ for the purposes of the provisions providing protection for protected disclosures under Part IV A of the Employment Rights Act 1996, it is appropriate to adopt a purposive approach.
Accordingly, where an individual supplies his services to an employment agency through his own company and the employment agency, in turn, provides the services of that company to an end user, it may be that in appropriate circumstances the individual is a ‘worker’ of the end user for the purposes of this part of the 1996 Act.

Judges:

Wilkie J

Citations:

[2007] UKEAT 0238 – 05 – 0404, UKEAT/0238/05, [2007] ICR 1303

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996

Cited by:

Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 July 2022; Ref: scu.251302