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.
His Honour Judge Peter Clark
[2007] UKEAT 0591 – 06 – 1602, UKEAT/0591/06
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..
His Honour Judge Birtles
[2007] UKEAT 0564 – 06 – 0903, UKEAT/0564/06
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.
Updated: 10 July 2022; Ref: scu.251406
EAT Case management
Costs
Constitution of ET – member falling ill when case part-heard; Regional Chairman appointed new member for remedies hearing without consulting parties – ET Chairman gave parties opportunity to object. None did. No procedural irregularity. Pedder v Bird (EAT 790/93) considered.
EAT costs: opportunity to settle, obviating need for final hearing. Unreasonable conduct. Limited costs order made.
Peter Clark J
[2007] UKEAT 0155 – 06 – 0602, UKEAT/0155/06
Updated: 10 July 2022; Ref: scu.251287
EAT Circumstances in which a claimant who had not appeared at the full hearing of his appeal before the Employment Appeal Tribunal sought and was granted review of order dismissing his appeal. Respondents’ application for expenses granted in part on grounds of unreasonable conduct by the claimant.
The Honourable Lady Smith
[2007] UKEAT 0072 – 05 – 0702, UKEATS/0072/05
Updated: 10 July 2022; Ref: scu.251286
EAT Temporary music teacher’s claim for exclusion from pension scheme. Application of Preston cases and Jeffrey v Secretary of State for Education and ors [2006] ICR 1062. Claim time-barred. Obiter discussion of whether limitation period runs from end date of last of a series of short-term contracts or from a later date.
The Honourable Lady Smith
[2007] UKEAT 0041 – 06 – 1601, UKEATS/0041/06
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.251283
EAT At a hearing on a respondent’s application for review of a decision to refuse his ET3 as late, a lay member in training was present and retired with the Tribunal Chairman at the point of deliberation. Laughter was heard emanating from chambers during the adjournment. The Chairman and lay member returned and the review application was refused. The respondent appealed on grounds of unfairness; the lay member should not have retired with the Chairman and the laughter was indicative of his case not having been taken seriously. Appeal refused.
The Honourable Lady Smith
[2007] UKEAT 0035 – 06 – 0702, UKEATS/0035/06
England and Wales
Updated: 10 July 2022; Ref: scu.251289
EAT In a claim for unfair dismissal where the claimant had written a document in which other employees were criticised and which gave rise to various concerns on the part of his employers, the Employment Tribunal approached the issue of whether or not there had been unfair dismissal on the basis that the onus of establishing that the dismissal was fair was on the respondents and that the claimant had not been dismissed on grounds relating to his conduct (or on any other potentially fair grounds). Despite that finding, the Tribunal went on to consider fairness. They appeared to have posed a test of whether a reasonable employer would have found the claimant’s conduct so wilful, gross or reckless that dismissal would be fair. They appeared to have substituted their own view as to whether or not dismissal was the appropriate response rather than apply the range of reasonable responses test. Further, they stated that the test of whether or not a dismissal was fair had to be applied having regard to all factors pertinent to the claimant, not primarily with regard to the interests of the respondent organisation. The Tribunal went on to consider remedy although they had not been asked to do so and had not heard evidence or submissions thereanent; they issued a provisional view that there should be an order for re-engagement but without any specification as to what might be contained in any such order. Further, the judgment they originally issued contained over forty errors and two sections at the end which had no understandable bearing on the decision but appeared to be extracts from the claimant’s submissions. A Certificate of Correction was issued in which the entire judgment was reissued. Not all errors had, though, been eliminated. Circumstances in which the respondents’ appeal was allowed; the Tribunal had made several fundamental errors of law and their apparently careless attitude to the issuing of the judgment was a cause for concern.
[2007] UKEAT 0045 – 06 – 0802, UKEATS/0045/06
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.251291
EAT Contract of Employment – Definition of employee – Triangular relationship – whether implied contract of employment between worker and end-user – strict application of Aramis principle – ET finding of implied contract reversed.
Peter Clarke J
[2007] UKEAT 0633 – 06 – 2903, UKEAT/0633/06
Updated: 10 July 2022; Ref: scu.251295
EAT PUBLIC INTEREST DISCLOSURE
Reason for dismissal including substantial other reasonable adjustments
The ET misdirected itself as to the burden of proof for S100 ERA 1996 dismissals in the light of Kuzel v Roche Products Ltd UKEAT/0576/06/CEA. Appeal allowed on that basis only. Case remitted to ET for further consideration.
His Honour Judge Birtles
[2007] UKEAT 0489 – 06 – 0603
Updated: 10 July 2022; Ref: scu.251300
Practice and Procedure – Disclosure
The Appellant claims discrimination and victimisation against the Prison Service. As to disclosure, the Employment Tribunal ordered that security intelligence reports be redacted to delete names of prisoners who gave information to the Service about the Appellant and of officers who handled that information. The Tribunal, I, and both Counsel had copies of the documents unredacted.
Held: that the Tribunal had correctly or permissibly exercised their discretion. Disclosure of the names could permissibly be regarded as unnecessary for the proper pursuit of the claim and there was clear justification for the exclusion of the names.
Judge Burke QC
[2007] UKEAT 0451 – 06 – 0202, UKEAT/0451/06
Updated: 10 July 2022; Ref: scu.251284
EAT ET in error in failing to apply correct test under Nasse v Science Research Council [1979] IRLR 465 and applying a test of ‘relevance’ instead.
His Honour Judge Birtles
[2007] UKEAT 0135 – 07 – 2203, UKEAT/0135/07
Updated: 10 July 2022; Ref: scu.251292
EAT Practice and Procedure
Tribunal added a party to the proceedings as part of its determination of a preliminary issue, which it proceeded to determine against that party without having heard from that party as such, without notifying him that he might be a party, and in contradiction of the submissions made to it by both the parties before it. This was held procedurally flawed, and the case remitted to a fresh tribunal for re-determination.
[2007] UKEAT 0059 – 07 – 2302, UKEAT/0059/07
Cited – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.251288
EAT Unfair Dismissal – Contributory fault; Polkey deduction
Unfair dismissal – liability finding by Employment Tribunal disclosed no error of law but case remitted for consideration of Polkey deduction and contributory conduct.
Bean J
[2007] UKEAT 0571 – 06 – 0202, UKEAT/0571/06 and UKEAT/0041/07
Updated: 10 July 2022; Ref: scu.251290
The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the non-competition clause was too wide, but was content not to divulge any confidential material. He had been a senior employee with full access to a wide range of systems information. The clause required him not to be employed by a competitor for six months. There was no geographical limit.
Held: The defendant did have confidential information. The clause was necessary because ‘ difficulties in identifying what is and what is not confidential information may mean that a non-competition clause is the most satisfactory term of restraint. The six month period seems to me to be appropriate and the words ‘which are in competition with the business carried on by the Company’ are reasonable. The capacity in which the employee in fact works for the new employer cannot in itself be decisive. If he possesses confidential information which it is appropriate to protect and there is a risk that in the course of his new work the duty of confidentiality may be breached, it matters not in precisely what capacity he is to work.’ The court must last consider still whether it should exercise its discretion to grant the injunction. Though the defendant would suffer loss, if the final injunction was refused, he could be adequately compensated in damages.
Nelson J
[2007] EWHC 519 (QB)
England and Wales
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Cited – Thomas v Farr Plc and Another CA 20-Feb-2007
The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to . .
Cited – Brake Brothers Limited v Ungless QBD 2004
The court considered the law relating to post employment restrictive covenants. Gloster J said: ‘(1) Covenants in Restraint of Trade are prima-facie unlawful and accordingly are ‘to be treated with suspicion’ see per Laddie J in Countrywide Assured . .
Cited – TFS Derivatives Ltd v Morgan QBD 15-Nov-2004
The claimant sought to enforce a post employment restrictive covenant. There was a 6 months’ prohibition, post-termination of employment (less any period of garden leave) on any employment which was competitive with the business of a former . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.250622
EAT Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair dismissal and section 98A(2). No error of law in the Tribunal’s reasons. In particular, Tribunal entitled to conclude that where the employer, having decided to impose a final written warning and not to dismiss the employee, later again contemplated dismissing the employee, it should again have complied with the standard DDP.
His Honour Judge Richardson
[2007] UKEAT 0389 – 06 – 2003, UKEAT/0389/06
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
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 . .
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.
Updated: 10 July 2022; Ref: scu.250314
The Authority had required its firemen to attend medical incidents in the place of ambulance crews. It now appealed a finding that that request was not lawfully imposed on its officers.
Held: The appeal failed. The collective agreements with the FBU which were in turn incorporated into the individual firefighters’ contracts made no mention of such co-responding, and it was therefore not part of their duties.
Clarke MR, Buxton LJ, Toulson LJ
[2007] EWCA Civ 240, Times 12-Mar-2007, [2007] ICR 1631
England and Wales
Updated: 10 July 2022; Ref: scu.250473
(Mauritius) The claimant said that his dismissal was automatically unfair under local statute. He had become involved in a fight after a road traffic incident and had been convicted. In the meantime his employers had promoted him, but then dismissed him on the basis of his conviction. The incident had no connection with his work. The appeal concerned whether he was entitled to an opportunity to answer any proposed dismissal.
Held: The dismissal was unfair and the appeal succeeded. The section appeared to require the employer to allow the employee an opportunity to answer any charges. The criminal hearing itself was not such an opportunity. The ‘provision is not only expressed in what appears to be very wide and general terms, but is intended to give an employee who may be facing dismissal an important substantive right, namely to make out a case to his employer as to why he should not be dismissed. ‘
Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury
[2007] UKPC 17
Updated: 10 July 2022; Ref: scu.250050
The EOC contended amongst other things that section 4A(1)(a) of the Sex Discrimination Act 1975 did not fulfil its intended purpose, which was to transpose into English law provisions contained in the Equal Treatment Directive 2002/73/EC.
Held: The use in section 4A(1)(a) of the expression ‘on ground of her sex’ introduced a requirement of cause and effect between the woman’s sex and the objectionable conduct: whereas no such element was present in the amended Directive’s definition of harassment, which used the expression ‘unwanted conduct related to the sex of a person’. It was not possible to correct this defect by a purposive construction of the statute.
Burton J
[2007] EWHC 483 (Admin), [2007] IRLR 327, [2007] 2 CMLR 49, [2007] ICR 1234, [2007] ACD 74
Sex Discrimination Act 1975, Equal Treatment Directive 2002/73/EC
England and Wales
Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.249965
EAT Practice and Procedure – Bias, misconduct and procedural irregularity
The judgment of the Employment Tribunal was set aside for not only did it fail to comply with any part of rule 30(6), but it failed to give any account of the facts, issues, submissions, law and reasons for the findings. Remitted to a fresh Employment Tribunal and subsequent remedy judgment set aside.
His Honour Judge Mcmullen Qc
[2007] UKEAT 0551 – 06 – 1601, UKEAT/0551/06
England and Wales
Updated: 10 July 2022; Ref: scu.249946
EAT Unfair Dismissal – Reasonableness of dismissal
Practice and Procedure – 2002 Act and pre-action requirements
The Respondent dismissed the Claimant for three reasons. On appeal, two of the most serious fell away but the reason for dismissal remained the same. At the Employment Tribunal it was held that the procedure was unfair, but was rescued by the Employment Rights Act 1996 s98A(2). On appeal it was held that the relevant managers had never turned their minds to whether they would have dismissed for the one offence alone, and could not invoke s98A(2) by mere assertion. Employment Tribunal reversed.
McMullen QC J
[2007] UKEAT 0504 – 06 – 2501
England and Wales
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
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.
Updated: 10 July 2022; Ref: scu.249947
EAT Practice and Procedure – Preliminary issues
The Employment Tribunal was wrong to conclude that an ET1 could constitute a written grievance for the purpose of satisfying section 32 of the Employment Act 2002.
The Honourable Mr Justice Wilkie
[2007] UKEAT 0023 – 07 – 2702, UKEAT/0023/07/RN
Employment Act 2002 32, Employment Act 2002 (Disputes Procedures) Regulations 2004
England and Wales
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 – Step In Time Ltd v Fox and Another EAT 3-Nov-2008
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
The employment judge held that the two claimants had complied with the statutory grievance procedures and that the Tribunal had . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.249948
[2007] UKEAT 0443 – 06 – 1203
England and Wales
Updated: 10 July 2022; Ref: scu.249949
EAT Sex Discrimination – Vicarious liability.
His Honour Judge Burke Qc
[2007] UKEAT 0558 – 06 – 3101, UKEAT/0558/06/DA
England and Wales
Cited – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
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.
Updated: 10 July 2022; Ref: scu.249945
The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. The claimant had reported a failure by the college to act on reports that another lecturer had allegedly incited racial hatred.
Held: It was not necessary for the complainant to prove that criminal or civil wrongdoing had occurred. Whilst the result in Kraus was correct on its facts, the reasoning was not correct.
Wall LJ said: ‘it is not permissible, as a matter of construction, to adopt a different interpretation of what is meant by ‘reasonable belief’ when applying that phrase to any of the situations in section 43B(1)(a) to (f). It seems to me that in each of the instances identified in the six subsections, the whistle-blower has to establish a reasonable belief that the information being disclosed ‘tends to show’ one or more of the situations identified in section 43B(1)(a) to (f).’ A belief may be both reasonably held and wrong: ‘the word ‘belief’ in section 43B(1) is plainly subjective. It is the particular belief held by the particular worker. Equally, however, the ‘belief’ must be ‘reasonable’. That is an objective test.’
Thorpe LJ, Thomas LJ, Wall LJ
[2007] EWCA Civ 174, Times 17-Apr-2007
Employment Rights Act 1996 103a
England and Wales
Cited – Babula v Waltham Forest College CA 21-Jul-2006
Renewed application for permission to appeal. . .
Cited – Kraus v Penna Plc and Another EAT 20-Nov-2003
The claimant said that his dismissal was automatically unfair on the basis that he had made a qualifying disclosure.
Held: ‘the worker’s reasonable belief in s.43B(1) relates to the information which he is disclosing and not to the existence . .
Cited – Bolton School v Evans EAT 7-Feb-2006
EAT Public Interest Disclosure – Protected Disclosure. Employee deliberately broke into computer system to show that his concerns that information might be obtained in breach of the Data Protection Act was . .
Cited – Darnton v University of Surrey EAT 11-Dec-2002
The claimant lecturer claimed that his dismissal was unfair after he had written to the principal making allegations of unlawful behaviour. He appealed a finding by the tribunal that since his allegations were not proven, he was not protected.
Cited – Street v Derbyshire Unemployed Workers’ Centre CA 21-Jul-2004
The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed . .
At EAT – Babula v Waltham Forest College EAT 31-Mar-2006
EAT Public Interest Disclosure . .
Leave – Babula v Waltham Forest College CA 21-Jul-2006
Renewed application for permission to appeal. . .
Cited – Babula v Waltham Forest College CA 21-Jul-2006
Renewed application for permission to appeal. . .
Cited – Chesterton Global Ltd (t/a Chestertons) and Another v Nurmohamed (Victimisation Discrimination: Whistleblowing) EAT 8-Apr-2015
chesteron_nurmohamedEAT201504
EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
This appeal concerns the meaning of the words ‘in the public interest’ inserted into section 43B(1) of the Employment Rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.249887
[2007] EWCA Civ 171
England and Wales
See Also – Merelie v Newcastle Primary Care Trust QBD 11-Nov-2004
An harassment claim was being considered. It was suggested that a defendant sought revenge against the claimant. . .
See Also – Merelie v Newcastle Primary Care Trust QBD 21-Feb-2006
. .
See Also – Merelie v Newcastle Primary Care Trust QBD 20-Jun-2006
. .
Appeal from – Merelie v Newcastle Primary Health Care Trust and Others (No.3) Admn 20-Jun-2006
. .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.249913
EAT Working Time Regulations
Whether Claimant bus drivers, excluded from right to 11/24 hours rest under Working Time Regulations reg 10(1), were entitled to both adequate rest (reg 24A) and compensatory rest
(reg 24). HELD: Adequate rest only.
Peter Clark J
[2006] UKEAT 0510 – 06 – 2012, [2006] UKEAT 0510 – 06 – 2012, UKEAT/0510/06
Updated: 10 July 2022; Ref: scu.249632
Practice and Procedure – Appearance/Response; 2002 Act and Pre-action Requirements; Chairman alone
CPR part 2.8 provides a clear illustration of the rule on counting the 28 days which must elapse between a grievance and a claim. The earliest date following a grievance on a Monday is the Tuesday, four weeks later, leaving 28 clear days when neither a grievance nor a claim is made.
A Chairman may sit alone on an unfair dismissal claim when it is ‘not resisted’ and this includes when a Respondent is ordered to play no part in the proceedings because it did not submit a response. Even if the putative Respondent seeks to defend the case, it is not allowed to resist and the Chairman may sit alone.
[2007] UKEAT 0375 – 06 – 0901
England and Wales
Updated: 10 July 2022; Ref: scu.249618
EAT Practice and Procedure – Review; Insolvency
A Respondent debarred under rule 4(1) and 9 may apply for a review and, if granted, appear as a full party. Otherwise there is no purpose in allowing it to make an application under rule 35. The Employment Tribunal erred in the administrative arrangements it made after he was debarred, causing confusion and unfairness, and wrongly refused to review the substantive judgment. DandH Travel and NSM Music applied. Remitted to the same Employment Tribunal to hold a review limited to compensation, as from the outset liability was not contested.
His Honour Judge Mcmullen QC
[2007] UKEAT 0568 – 06 – 1101, UKEAT/0568/06
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 . .
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.
Updated: 10 July 2022; Ref: scu.249621
EAT Practice and Procedure – Amendment – In the course of a tribunal hearing, orders were made (1) allowing the claimant to amend her claim; and (2) restricting the respondents in the evidence that they were allowed to seek to elicit. The respondents appealed. Circumstances in which the appeal was allowed so as to quash the second order and remit to the tribunal to proceed, allowing the respondents to recall the claimant and one other witness.
The Honourable Lady Smith
[2007] UKEAT 0013 – 07 – 2202, UKEATS/0013/07
Updated: 10 July 2022; Ref: scu.249626
EAT Unfair Dismissal – Compensation – Loss of pension rights and reasons for choosing a method of calculation should not have been dealt with by Tribunal using a certificate of correction which in any event made no reference to the employer’s arguments, gave no reasons for their decision and used figures which the Claimant had amended.
His Honour Judge Ansell
[2007] UKEAT 0485 – 06 – 2202, UKEAT/0485/06
Updated: 10 July 2022; Ref: scu.249623
EAT Transfer of Undertakings – pensions and other terms
The Claimant started to work for the transferor in 1999 where there was no severance pay scheme. She transferred to the Appellant in 2004 where there is a dual scheme providing different benefits to those who ‘joined’ before and after 2002, each increasing with length of service. In 2005 it was incorporated into her contract. When she was made redundant in 2005 she was treated as having length of service back to 1999, but it was the post-2002 joiner scheme which was applied to her. It was held that TUPE Reg 5(1) did not give her the retrospective right to be treated as a pre-2002 joiner, since the Regulations protect existing rights and do not create or increase them.
His Honour Judge McMullen QC
[2006] UKEAT 0503 – 06 – 1512, UKEAT/0503/06
Appeal from – Jackson v Computershare Investor Services Plc CA 30-Oct-2007
It is inconsistent with the TUPE regulations to seek to use them to improve an employee’s terms and conditions. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.249631
EAT Practice and Procedure – Review
A request for a review was made out of time following a default judgment. The Chairman rejected it on time grounds alone without appearing to take into account the reasons put forward for delay, or the merits of the case, both of which should be considered when deciding if time should be extended for such an application. Further, the Chair expressly took into account a consideration which appeared irrelevant. Thus the matter remitted for a fresh decision to be taken.
Langstaff J
[2006] UKEAT 0357 – 06 – 2012, UKEAT/0357/06
Updated: 10 July 2022; Ref: scu.249633
[1993] UKEAT 45 – 93 – 1702
England and Wales
Updated: 10 July 2022; Ref: scu.210447
[1993] UKEAT 233 – 92 – 1901
England and Wales
Updated: 10 July 2022; Ref: scu.210401
[1995] UKEAT 843 – 95 – 1312
England and Wales
Updated: 10 July 2022; Ref: scu.209562
[1993] UKEAT 209 – 92 – 1401
England and Wales
Updated: 10 July 2022; Ref: scu.210388
[2001] EWCA Civ 207
England and Wales
Updated: 10 July 2022; Ref: scu.200818
[1995] UKEAT 204 – 94 – 1312
England and Wales
Updated: 10 July 2022; Ref: scu.209586
[2001] EWCA Civ 272
England and Wales
Updated: 10 July 2022; Ref: scu.200812
The Claimant worked as a postman. He had a poor attendance record generally and had triggered the Respondent’s Attendance Policy on several occasions due to repeated episodes of planned and unplanned absences. In 2017, the Claimant had two further periods of absence relating to surgery to treat Carpal Tunnel Syndrome in each of his hands. These absences triggered the policy again, the second period of absence triggering the final AR3 stage of the policy, which entitled the Respondent to review the whole of the employee’s attendance record. The Respondent decided that it had lost confidence in the Claimant’s ability to maintain a satisfactory attendance record and decided to dismiss him.
The Employment Tribunal (ET) held that, although the decision to dismiss was harsh, it fell within the band of reasonable responses and the dismissal was fair. An allegation that the dismissal amounted to discrimination arising from disability was also dismissed on the basis that the Respondent did not know and could not reasonably be expected to know that the Claimant had a disability.
The Claimant appealed on the grounds that it was perverse to conclude that it was fair to dismiss the Claimant for two periods of absence for corrective surgery for which the Claimant was essentially blameless, and for the Respondent to rely upon earlier absences. It was also said that the Tribunal erred in accepting that the Respondent did not have constructive knowledge of disability in circumstances where it did little more than ‘rubber stamp’ the conclusions of Occupational Health in this regard.
Held. Dismissing the appeal that the Tribunal’s conclusion as to the fairness of the dismissal could not be said to be perverse. The policy expressly permitted earlier absences to be taken into account. Conduct that is in line with policy is unlikely to be unfair. The periods of absence for corrective surgery were, in each case, extended by other factors, and it was not outside the band of reasonable responses to take these absences into account. The policy applied to all absences, irrespective of fault or blame, and the Respondent was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future. As to disability discrimination, the Respondent had not simply rubber stamped the OH reports, but had, on the face of it, given independent consideration to the question of disability. Moreover, the OH reports themselves contained more than a bare assertion that the Claimant was not disabled. In these circumstances, there was no error in the Tribunal’s conclusion as to the absence of constructive knowledge of disability.
[2019] UKEAT 0262 – 18 – 1402
England and Wales
Updated: 10 July 2022; Ref: scu.639212
Practice and Procedure – Stay – Paragraph 43(6) Schedule B1 Insolvency Act 1986
The Claimant had commenced Employment Tribunal (‘ET’) proceedings against eight Respondents. Subsequently, the first two Respondents (one of which had been the Claimant’s employer) went into administration and a stay was imposed on the proceedings under paragraph 43(6) Schedule B1 Insolvency Act 1986. Although accepting (absent the consent of the administrators or permission from the Companies Court) that stay must be remain in respect of the First and Second Respondents, the Claimant applied for the proceedings to be continued in relation to the remaining Respondents (the Third to Seventh being employees or agents of the First and/or Second Respondents; the Eighth Respondent being said to be a the relevant transferee of the First and/or Second Respondent’s business (or relevant part) under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’)). The ET agreed with the Claimant, holding that paragraph 43(6) did not prevent legal proceedings being continued in respect of stand-alone claims against other Respondents (those proceedings being pursued against the Third to Seventh Respondents by virtue of section 110 Equality Act 2010; against the Eighth Respondent under regulations 4 and 7 TUPE). The ET considered the potential prejudice the remaining Respondents might face, in particular in relation to disclosure (it being accepted that the First and/or Second Respondents would possess most of the relevant documentation) and privilege. It did not, however, consider these were issues that necessarily arose from the stay under paragraph 43(6) but, in any event, took the view that orders for disclosure could nevertheless be made against the First and/or Second Respondents under rule 31 ET Rules 2013; more generally, the ET did not consider that there was yet any evidence to suggest that disclosure/privilege issues would arise such as to give rise to any overwhelming prejudice against the Third to Eighth Respondents.
The Third, Fourth, Fifth, Seventh and Eighth Respondents appealed.
Held: dismissing the appeals
Notwithstanding the potential vicarious liability of the First and/or Second Respondent (whether by reason of section 6 Limited Liability Partnership Act 2000 or under section 109 Equality Act 2010) and the likely application of the doctrine of res judicata (understood as giving rise to a cause of action or to an issue estoppel), paragraph 43(6) Schedule B1 Insolvency Act 1986 did not require the ET to continue the stay in relation to the Third to Eighth Respondents; the issue was not one of jurisdiction but of case management discretion. The ET had taken into account the potential liabilities faced by the First and/or Second Respondents and the likely application of the doctrine of res judicata but had permissibly concluded that it was a matter of choice for the administrators as to whether they consented to the proceedings being continued against the First and/or Second Respondents in these circumstances: that was not a ‘choice fallacy’, as the Respondents contended as the option of consenting to the continuation of proceedings was expressly allowed by paragraph 43(6). As for the potential prejudice to the remaining Respondents, the ET had taken proper account of the risk to professional reputation and of the difficulties arising in respect of disclosure and questions of privilege. It had correctly identified that these were largely issues arising in the proceedings in any event, not as consequences of the stay. It had also been right to point to its power to make disclosure and information orders under rule 31 of the ET Rules 2013. The ET had, moreover, not discounted the possible problems that might arise but had decided it would be wrong to simply assume that this would necessarily arise be so, allowing that this might be a question to be revisited if there was actual evidence of prejudice faced by the Respondents.
[2019] UKEAT 0141 – 19 – 1906
England and Wales
Updated: 10 July 2022; Ref: scu.639217
The Claimant, who is a practising Christian, held the position of Non-Executive Director of an NHS Trust. He was also a lay magistrate sitting on family cases involving adoption decisions. The Claimant holds the firm faith-based belief that it is ‘not normal’ for a child to be adopted by a single-parent or a same-sex couple. The public expression of those views led to disciplinary action in respect of his Magistracy. The Claimant participated in media interviews about that action without informing the Trust. The Trust instructed the Claimant to inform it before contacting the media. The Claimant was subsequently removed from the Magistracy. Before the Trust could speak to him about that removal, the Claimant took part in a further televised interview with BBC Breakfast News, during which he expressed the view that he could not see how adoption by a same sex-couple could ever be in the best interests of the child. The Claimant was thereafter suspended by the Trust and his term as a NED was not renewed. The Claimant issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims.
Held (dismissing the appeal): that the Tribunal had not erred in law in finding that the Claimant was treated as he was because of the manner in which the Claimant had expressed his beliefs (rather than because of the beliefs themselves), including the fact that he had spoken to the media without informing the Trust and had done so in the knowledge that his conduct would be likely to have an adverse effect on the Trust’s ability to engage with sections of the community it serves. That finding as to the reason for the Claimant’s treatment was a finding of fact which cannot be said to be perverse. The Tribunal had also not erred in rejecting the claim of indirect discrimination on the grounds that the Claimant was unable to show group disadvantage. The Tribunal had correctly applied the Court of Appeal’s decision in MBA v Merton London Borough Council [2014] 1 WLR 1501. Finally, the Tribunal had not erred in concluding, in accordance with the principles established in Martin v Devonshires Solicitors [2011] ICR 352, that the various reasons relied upon by the Respondent for its treatment of the Claimant were properly separable from the allegations of discrimination which the Claimant was making against the Lord Chancellor and others in respect of his removal from the Magistracy.
[2019] UKEAT 0183 – 18 – 1906
England and Wales
See Also – Page v Lord Chancellor and Another EAT 19-Jun-2019
Appeal from rejection of discrimination claim arising from claimant’s dismissal as magistrate after rejecting certain forms of lawful adoption for his own religious preferences. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 July 2022; Ref: scu.639219
[2019] UKEAT 0016 – 18 – 2106
England and Wales
Updated: 10 July 2022; Ref: scu.639220
The Appellant appealed against a decision of the Employment Tribunal dismissing his claim for unlawful deduction of wages. He contended that his contract of employment required him to do 20 hours of overtime per week for which he was entitled to be paid at time and a half. The Respondent argued that a collective agreement was incorporated in the Appellant’s contract of employment, and that, as a result of negotiations between the Respondent and the relevant trade union, the rate for 12 hours of that overtime had been reduced from time and a half to single time.
The Employment Appeal Tribunal held that while the collective agreement was expressly incorporated in the Appellant’s contract of employment, the revised term about overtime premiums was not apt for incorporation. It allowed the appeal.
[2019] UKEAT 0261 – 18 – 2305
England and Wales
Updated: 10 July 2022; Ref: scu.638495
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
VICTIMISATION DISCRIMINATION – Detriment
The Claimant before the ET worked for the Respondent for 33 years until she was made redundant in the context of a restructuring in 2012. She subsequently pursued Employment Tribunal claims, including of age and sex discrimination, unsuccessfully.
In 2017 the Respondent advertised two posts of Assistant Curator. The Claimant applied. Her application was sifted out for the given reason that she was overqualified. The Respondent also advertised a post of Curatorial Project Manager. The Claimant was not among those shortlisted. In two claims, one relating to each application, she claimed victimisation by reference to her 2012 ET claims. In both cases the ET found that the burden shifted to the Respondent, but, in relation to the Assistant Curator posts, was not discharged, so the first claim succeeded. The other claim failed. This appeal related to the successful first claim only.
Held:
(1) Very unfortunately, on two occasions on day one of the hearing, the Employment Judge fell asleep. In all the circumstances, a fair-minded informed observer would conclude that there was a real possibility that the fairness of the hearing was affected. The appeal therefore succeeded on this ground alone. Stansbury v Datapulse plc [2004] ICR 523 (CA) applied. Shodeke v Hill and Others [2004] UKEAT/0394/00 considered.
(2) The appeal would not have been upheld by reference to the grounds of appeal challenging the ET’s decision that the burden of proof passed to the Respondent. Although the specific matters relied upon by the ET as shifting the burden were too narrow, the wider undisputed facts were such as to justify that decision.
(3) The appeal would, in any event, have been allowed, on the basis that the ET did not reach a sufficiently clear and specific conclusion in respect of the Respondent’s case as to the explanation for the decision to sift out the application, being that the Claimant was regarded as significantly overqualified for the position.
[2019] UKEAT 0260 – 18 – 0404
England and Wales
Updated: 10 July 2022; Ref: scu.638494
PRACTICE AND PROCEDURE – Application/claim
PRACTICE AND PROCEDURE – Case Management
The Claimant brought a claim of disability discrimination based on the physical impairment of Atrial Fibrillation. An issue was defined for Preliminary Hearing: does the Claimant have a physical impairment, namely Atrial Fibrillation? At the Preliminary Hearing the Claimant put his case differently, based on depression. Despite objection from the Respondent, and without any amendment of the ET1 or the list of issues, the Employment Judge adjudged that the Claimant was a disabled person by reason of suffering with depression.
Appeal allowed. Given the terms of the ET1 and the list of issues it was not open to the Employment Judge to adjudge that the Claimant was a disabled person by reason of suffering with depression.
[2019] UKEAT 0270 – 18 – 1701
England and Wales
Updated: 10 July 2022; Ref: scu.635152
TRIBUNAL JURISDICTION: Employer’s claim under Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994
An employer can bring proceedings in the Employment Tribunal (‘ET’) under the 1994 Order only if the employee has brought proceedings in respect of a claim ‘by virtue of’ the Order (Art 4(d)). The EAT held that a claim is brought ‘by virtue of’ the Order only if it must necessarily have been brought under the Order or if it has unequivocally been brought under the Order.
In this case the employee claimed arrears of pay due in his last pay cheque. Such a claim could have been brought under the Order or under Part II of ERA 1996 and there was no unequivocal indication that it was brought under the Order.
In those circumstances the ET had had no jurisdiction to deal with the employer’s counterclaim and the appeal was allowed and the judgment in the employer’s favour set aside.
[2018] UKEAT 0144 – 18 – 1611
Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994
England and Wales
Updated: 10 July 2022; Ref: scu.635143
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Claimant presented his claims for unfair dismissal and breach of contract out of time. He was of limited means and did not have good literacy skills. At the date of expiry of the time limits for presentation of the claims the fees regime was still in place and he would have had to pay pounds 250 to lodge his claim. The Employment Judge found as a fact that he had consulted and instructed a lawyer at the CAB and was told about the limitation period and, albeit wrongly, that it had expired. The Claimant delayed from early August 2017 when he learned about the abolition of the fees regime to 9 September 2017 to present his claim. The Employment Judge found that there was no evidence before her that the Claimant did not have funds to present a claim. She found that the Claimant had access to advice, could reasonably be expected to be aware of time limits and on the basis of his written statement that he was saving up to pay for other matters connected to his claims he had not established that it was not reasonably practicable to present his claim in time. Further the Employment Judge held that in any event the further delay from the expiry of the limitation period to 9 September 2017 was not reasonable. Whilst in some cases before the decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor [2017] IRLR 911 the requirement to pay a lodgement fee of pounds 250 may render it not reasonably practicable to lodge claims for unfair dismissal in time, each case is to be judged on its own facts. The Employment Judge on the facts before her did not err in deciding that the Claimant had not established that it was not reasonably practicable to lodge the claims in time.
[2019] UKEAT 0193 – 18 – 1704
England and Wales
Updated: 10 July 2022; Ref: scu.637649
Contract of Employment – Written particulars – uplift under section 38(3) of the Employment Act 2002
The Employment Judge erred in law in increasing an award by virtue of section 38(3) of the Employment Act 2002. The Appellant was not in breach of its duty under section 1 of the Employment Rights Act 1996 when the proceedings began. The Appellant had been in breach of duty but had complied with the duty prior to the commencement of the proceedings.
[2019] UKEAT 0237 – 18 – 2801
England and Wales
Updated: 10 July 2022; Ref: scu.637638
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
The Appellant appealed against a decision of the Employment Tribunal (‘the ET’) that his dismissal was not unfair. He was dismissed on the basis that findings in an earlier decision by an Employment Tribunal (‘ET1’) about his credibility meant that the Respondent could no longer employ him. He argued first, that the ET had erred in law by holding that the Respondent was entitled to dismiss him without any investigation, apart from giving him an opportunity to comment on ET1’s findings at a disciplinary hearing. The Employment Appeal Tribunal (‘the EAT’) dismissed that ground of appeal. Be argued, second, that the ET had erred in law in holding that the Respondent’s failure to give him an appeal hearing did not make the dismissal unfair as it would not have made any difference. The EAT dismissed that ground of appeal.
[2018] UKEAT 0123 – 18 – 3011
England and Wales
Updated: 10 July 2022; Ref: scu.635142
Reasonable Adjustments
The Employment Tribunal erred in law in concluding that the Respondent had neither actual nor constructive knowledge of the Claimant’s disability prior to November 2012. On the Employment Tribunal’s findings:
(a) there was actual knowledge of PTSD with effect from 18 July 2012; and
(b) constructive knowledge from July 2012.
That being so, the duty to make reasonable adjustments arose in this case.
The Employment Tribunal erred in concluding that none of the three adjustments contended for by the Claimant were reasonable. On the Employment Tribunal’s own findings:
(a) it was reasonable for the Respondent to use the Haylett report as a prompt; and
(b) this could have been done in July by Mrs Elms rather than waiting until September.
Substituted findings were made in exercise of the Employment Appeal Tribunal’s powers under s.35 ETA 1996.
[2018] UKEAT 0042 – 18 – 1411
England and Wales
Updated: 10 July 2022; Ref: scu.631855
UNFAIR DISMISSAL – Dismissal/ambiguous resignation
The Claimant had experienced difficulties in the department in which she was employed by the Respondent (the Records Department) and had successfully applied for a position in the Radiology Department, subject to pre-appointment checks. Having received her conditional offer from Radiology, and after an altercation with another member of staff in Records, the Claimant handed in a letter, stating ‘Please accept one Month’s Notice from the above date’. The manager to whom this was addressed responded the same day accepting the Claimant’s ‘notice of resignation’ and referring to her last working day within the Records Department. He did not complete a staff termination form (only applicable for those leaving the Respondent’s employment and expressly stated not to be used for internal transfers) and made no reference to the Claimant leaving her employment more generally or to any outstanding issues regarding (for example) accrued leave entitlement. Subsequently the offer of employment in Radiology was withdrawn, due to the Claimant’s sick leave record, and the Claimant sought to retract her ‘notice of resignation’. The Respondent, however, refused to agree to this and confirmed that her employment would end at the end of her notice period.
The Claimant, acting in person, brought a claim for constructive unfair dismissal in the Employment Tribunal (‘ET’). She later received legal advice and was permitted to amend her claim to assert that she had been directly dismissed by the Respondent. The Respondent resisted that claim, asserting she had resigned. The ET agreed with the Claimant. It found that her letter had been ambiguous as to whether she was giving notice to leave the Records Department or to leave her employment but that the Respondent had in fact understood the Claimant was giving notice of her departure from the Records Department, which was – applying an objective test – a reasonable construction of the letter; the Claimant had thus established that she had been dismissed and succeeded on her complaint of unfair dismissal. The Respondent appealed against the finding that the Claimant had been dismissed.
Held: dismissing the appeal
Although the word ‘notice’ in the employment context might generally signify an unambiguous notification of termination of the contract, that was not so in the particular circumstances of this case; the Claimant had an offer of a position within another department and her ‘notice’ could equally be taken to refer to her notification of her departure from the Records Department. Given the ambiguity arising from the Claimant’s letter giving notice, the ET had correctly applied an objective test when determining how the words used would have been understood by the reasonable recipient of the letter. It had looked at the Respondent’s immediate response to the letter and had permissibly found that the Claimant’s notification had been understood to relate to her departure from the Records Department and not from her employment more generally. In context – in particular, having regard to the fact that it was known that the Claimant was intending to take up another position, still in the Respondent’s employment – the ET found that the Respondent had genuinely and reasonably construed the Claimant’s ‘notice’ as referring to the termination of her position in Records before she moved to Radiology and not to the termination of her employment. Allowing that this was a mixed question of fact and law, the ET had not erred in its approach or in its conclusion that the Claimant’s employment had been terminated by dismissal and not resignation.
[2018] UKEAT 0232 – 17 – 0506
England and Wales
Updated: 10 July 2022; Ref: scu.625442
Having found the Claimant had been unfairly dismissed from his employment, the ET proceeded to make an award for compensation for a 15-month period, following the effective date of termination. In so doing, it accepted the Claimant’s claim that he was entitled to be compensated for loss of the benefit of 30 days’ paid holiday entitlement (a benefit he had enjoyed when employed by the Respondent but did not receive in his self-employed work undertaken in mitigation). The ET proceeded to make separate awards for loss of earnings and for holiday pay but, in so doing, it wrongly assumed the sum claimed by the Claimant in respect of the former took no account of holiday pay. The Respondent appealed on the basis that this gave rise to double recovery for the loss of paid holiday entitlement.
Held: allowing the appeal
It was apparent that the loss of earnings claimed by the Claimant already took into account his loss of paid holiday entitlement. That being so, there was no need for the ET to make a separate award of compensation under this head; doing so double counted the Claimant’s loss in this regard and given rise to an element of double recovery; the separate award for holiday pay would be set aside.
[2018] UKEAT 0040 – 18 – 1206
England and Wales
Updated: 10 July 2022; Ref: scu.625440
Employment Tribunal Procedure – Costs – Reconsideration
An application by the Claimant for an adjournment made at 9.31am on the day of the hearing of the appeal was refused.
The Claimant’s appeal was dismissed. The Employment Tribunal did not err in law in making a global award of pounds 7,500 in respect of all three Respondents; and in any event the Employment Judge did not err in law in refusing the Claimant’s application for reconsideration.
[2018] UKEAT 0072 – 18 – 1806
England and Wales
Updated: 10 July 2022; Ref: scu.625444
Agency worker – Agency Workers Regulations 2010 – meaning of ‘agency worker’
The Respondent security company had employed the Claimant as a security guard on a ‘zero-hours’ contract for some 21 months. His contract had included a flexibility clause enabling the Respondent to assign him to different sites as required, although the Claimant was generally (although not exclusively) supplied by the Respondent to Mitie Security Ltd, providing security services at the Citi Group site in London. The ET found the Claimant was being used as a ‘cover security guard’ and concluded that he was an agency worker for the purposes of the Agency Workers Regulations 2010. The Respondent appealed, contending that the ET had failed to apply the correct test and had wrongly treated the ‘zero-hours’ contract and the Claimant’s relatively short period of service as determinative.
Held: dismissing the appeal
In determining whether the Claimant was an agency worker for the purposes of the Agency Workers Regulations 2010, the question for the ET was whether he had been supplied by the Respondent to work temporarily for Mitie, i.e. that he was working on a temporary and not a permanent basis (Moran and Others v Ideal Cleaning Services Ltd and Another [2014] IRLR 172 EAT applied). In answering that question, the ET had to have regard to the work carried out by the Claimant as a matter of practice. Although the ET had considered the nature of the Claimant’s contract and relatively short period of employment to be relevant, it had not treated those factors as determinative; it had, rather, looked at the nature of the work for which the Claimant had been supplied and had found that it was to provide cover for Mitie as and when required. That was a finding supported not only by the Claimant’s evidence but also by Mitie’s description of the services provided. The ET had thus applied the correct legal test and reached a permissible conclusion that the Claimant was an agency worker.
[2018] UKEAT 0309 – 17 – 2604
Agency Workers Regulations 2010
England and Wales
Updated: 10 July 2022; Ref: scu.625434
An Employment Judge had struck out the Claimant’s case on the grounds it was not being actively pursued. The Claimant appealed. Striking out a claim is a draconian step. Although initially in this case it appeared that the Employment Judge may not have given sufficient consideration to those steps which the Claimant had taken, full analysis of the chronology of events revealed that the Claimant had a history of being selective about which correspondence and Orders he would respond to and which directions he would engage with. On balance, the Judge was entitled to conclude that the point had been reached where it was no longer just to allow him to continue to have access to the Tribunal, to make the Strike Out Order
[2018] UKEAT 0002 – 18 – 0803
England and Wales
Updated: 10 July 2022; Ref: scu.625432
UNFAIR DISMISSAL – Redundancy
On a claim for unfair dismissal, the Tribunal found that the claimant was dismissed by reason of redundancy.
On appeal the claimant contended that the Tribunal had failed to take into account any available alternative employment that might have prevented his redundancy.
Held : Reading the Judgment as a whole, it could easily be inferred that the Tribunal had accepted that no other suitable employment was available at the material time. New staff had already been employed by the date on which the decision was taken and there was no obligation to dismiss them in favour of the claimant.
Appeal dismissed.
[2018] UKEAT 0017 – 17 – 1603
England and Wales
Updated: 10 July 2022; Ref: scu.625431
The Claimant, disabled with asthma, failed in proceedings for unlawful disability discrimination. She appealed.
The grounds of appeal challenged the Tribunal’s approach to the reasonable adjustments claim involving a complaint that the Respondent applied a PCP for employees to work in open-plan spaces, operationally allocated, in which the ambient temperature could not be controlled by an individual employee. The Claimant said this put her at a substantial disadvantage as a disabled person with asthma, and a reasonable adjustment would have placed her in a different office environment where she could manually control the ambient temperature. The Claimant also challenged the Employment Tribunal’s conclusions on her section 15 claim in relation to reductions in sick pay applied to the Claimant.
The appeal failed. There was evidence to support the Employment Tribunal’s conclusion that the Claimant failed to establish that the PCP placed her at a substantial disadvantage in this case. Medical evidence was part of the consideration, but was not (and was not treated as) a necessary requirement. Nor did the Employment Tribunal make any other error of law.
In relation to sick pay and the Respondent’s failure to extend the period of sick pay, the Employment Tribunal adopted the correct approach in considering whether the failures or refusals to extend (which were the unfavourable treatment complained of) were proportionate and justified. It held that the ability to apply for an extension (and appeal an unfavourable decision) introduced the flexible, individually tailored consideration necessary into the Respondent’s policy; and that there was a flexible approach that took account of the Claimant’s circumstances in this case. The Employment Tribunal’s finding that the Claimant’s treatment was proportionate was open to it on the evidence and not in error of law accordingly.
[2018] UKEAT 0278 – 17 – 2404
England and Wales
Updated: 10 July 2022; Ref: scu.625435
PRACTICE AND PROCEDURE – Costs
An Employment Judge was not obliged to adjourn a hearing of her own motion. The hearing concerned an application for reconsideration of a Costs Order against the Claimant. The basis of the application was that the Claimant had misled the Tribunal as to his assets when he said that he had transferred his former matrimonial home into his wife’s name, since in fact he was still the registered proprietor. There were related County Court proceedings in which it was subsequently decided that he held the property on trust for his wife. The Employment Judge was aware of the County Court proceedings, but decided to proceed with the hearing. In the circumstances, she was entitled to do so.
[2018] UKEAT 0250 – 17 – 1603
England and Wales
Updated: 10 July 2022; Ref: scu.625433
EAT RACE DISCRIMINATION – Direct discrimination
The Employment Tribunal in a race discrimination claim failed to identify the particular acts on which it based its finding of discrimination – Had it done so, it would have been clear that the only acts potentially covered by its finding had not been pleaded and/or were incapable of justifying an inference of discrimination.
[2009] UKEAT 0487 – 08 – 1103
England and Wales
Updated: 09 July 2022; Ref: scu.331197
[2007] ScotCS CSIH – 16
Scotland
At EAT – Hynd v Armstrong and others EAT 20-Sep-2004
. .
Appeal from – Hynd v Armstrong and others IHCS 21-Jan-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.249243
Simon Brown J
[2003] EWCA Civ 1689
England and Wales
Appeal from – Al-Kadhimi and others v Saudi Arabia EAT 8-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.249061
[2006] EWCA Civ 1442
England and Wales
Updated: 09 July 2022; Ref: scu.249070
[2003] EWCA Civ 767
England and Wales
Updated: 09 July 2022; Ref: scu.249054
The respondent had been employed in a senior position by the appellant. He had complained that when being made redundant, the appellant had failed to make reasonable efforts to find him alternative employment.
[1977] UKEAT 64 – 77 – 1107, [1978] ICR 70, [1977] IRLR 297
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248972
The claimant had been dismissed for ill health. He complained to the Tribunal that he had been unfairly dismissed. The grounds of his application amount to a complaint of constructive dismissal. In summary, he was saying that he was being treated by the District Council in a manner which he found degrading, demoralising and upsetting, and which had resulted in a detrimental effect upon his health to such an extent that his early retirement on the grounds of ill health had been approved. His complaint was that he was denied all responsibility and treated as a menial employee.
Held: The Council’s appeal failed.
Phillips P J Said: ‘Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position . . Discussions and consultations will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers’ medical advisers, will cause them to change their opinion. There are many possibilities. Mr. Daubney complained to an Industrial Tribunal that he had been unfairly dismissed. The grounds of his application amount to a complaint of constructive dismissal. In summary, he was saying that he was being treated by the District Council in a manner which he found degrading, demoralising and upsetting, and which had resulted in a detrimental effect upon his health to such an extent that his early retirement on the grounds of ill health had been approved. His complaint was that he was denied all responsibility and treated as a menial employee.’
Phillips P J
[1977] UKEAT 7 – 77 – 2004, [1977] ICR 566, [1977] IRLR 181, (1977) 12 ITR 359
Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248971
[1977] UKEAT 1 – 77 – 1507
Updated: 09 July 2022; Ref: scu.248973
The section required a study which necessitated the evaluation of both the complainant’s work and that of her male comparator. It was not good enough that the bench mark jobs had been evaluated if there had been no evaluation of the claimant’s and her comparators’ jobs in the process. In this sense the use of the description ‘analytical’ was not a gloss on the statutory provision but a convenient way of summarising the need for the study to value in terms of demand under various relevant headings, each worker’s job – not just some. It had to be shown not only that a job evaluation scheme had been carried out but also that it was a scheme which fulfilled the necessary criteria.
[1987] UKEAT 97 – 87 – 2807, [1988] 2 CMLR 468, [1988] ICR 47, [1987] IRLR 456
England and Wales
Updated: 09 July 2022; Ref: scu.248981
The court was asked whether termination payments made to employees on redundancy and which had been calculated according to unexpired notice periods were liable to Schedule E income tax and national insurance. The calculations were based upon a memorandum of agreement between the company and the trades union.
Held: The memorandum could not sensibly be thought to abrogate an employee’s rights. Employees were entitled by their contracts and the memorandum to receive payments in lieu of notice. The payments made were as debts due under the contracts, and were emoluments. The taxpayers’ appeal was dismissed.
Lightman J
[2007] EWHC 270 (Ch)
Income and Corporation Taxes Act 1988 19
England and Wales
Updated: 09 July 2022; Ref: scu.248997
Browne-Wilkinson J discussed the status of the statement of main terms of employment: ‘It provides very strong prima facie evidence of what were the terms of the contract between the parties but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most they place a heavy burden on the employer to show that the actual terms of contract are different from those he has set out in the statutory statement.’
Browne-Wilkinson J
[1981] UKEAT 321 – 81 – 1410, [1982] ICR 54
Approved – Robertson v British Gas Corporation CA 1983
Collective agreements ordinarily create no legally enforceable obligations between a union and the employers. Akner LJ did not accept that the statutory statement of terms and conditions equally placed a heavy burden on the employee and employer in . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248977
The management introduced a new machine. The appellants left the premises and did not return. They were dismissed. They now appealed a finding that they had not been unfairly dismissed.
Held: The appeal failed. Whether the employer had through his behaviour contributed to the industrial action was not relevant.
Phillips J P
[1976] UKEAT 24 – 76 – 1404, [1976] IRLR 308, [1976] ICR 336, [1976] 3 All ER 384
Trade Union and Labour Relations Act 1974
Cited – Heath and Another v JP Longman (Meat Salesman) Limited 1973
Sir Hugh Griffiths said: ‘It appears to this Court that the manifest overall purpose of Section 26 is to give a measure of protection to an employer if his business is faced with ruin by a strike. It enables him in those circumstances, if he cannot . .
Cited – Lomax v Ladbroke Racing Limited 1975
The employees sought recognition for their union, and in furtherance of that went on strike. They were dismissed. The employers appealed a finding that they had been wrongly dismissed.
Held: The actual reason for the dismissals was not the . .
Cited – Sanders and Others v Ernest A Neale Limited NIRC 5-Jul-1974
The applicants appealed dismissal of their claims for redundancy payments.
Held: The Court considered the time of acceptance by an employee of an employer’s repudiatory actions. Sir John Donaldson P set out the principle which he regarded as . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248968
EAT Disability Discrimination – Compensation
Appellant claimed that the Employment Tribunal had applied the wrong test (balance of probabilities, rather than loss of chance) in assessing future losses in a disability discrimination case. It had also failed to make an award for loss of BUPA membership.
Held: the Employment Tribunal did not apply the wrong test and there was no evidence in relation to the BUPA claim. The cross-appeal relating to mitigation of loss, perversity and aggravated damages also failed.
Reid QC J
[2007] UKEAT 0366 – 06 – 1502
England and Wales
Appeal from – Fletcher-Cooke v Hampton School CA 27-Jun-2007
The claimant appealed refusal of her claim for disability discrimination and unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248965
[1977] UKEAT 443 – 76 – 1702
England and Wales
Updated: 09 July 2022; Ref: scu.248970
Challenge to the validity of the redundancy process.
[1976] UKEAT 177 – 76 – 1307
Updated: 09 July 2022; Ref: scu.248969
EAT Race Discrimination – Direct – Finding of direct and indirect discrimination – adequacy of reasoning on each issue. Case remitted to freshly constituted Employment Tribunal.
EAT Race discrimination – Direct/ Indirect/ Inferring discrimination
Finding of direct and indirect discrimination – adequacy of reasoning on each issue. Case remitted to freshly constituted Employment Tribunal.
The Honourable Mr Justice Bean
[2007] UKEAT 0470 – 06 – 2901, UKEAT/0470/06
England and Wales
Updated: 09 July 2022; Ref: scu.248963
EAT Unfair dismissal – Contributory fault
Employment Tribunal took into account post-dismissal behaviour in assessing reduction for contributory fault.
Argument that Employment Tribunal had in mind assessing compensation as less because of after dismissal actions of Claimant dismissed not only on basis of what Employment Tribunal said, but on basis that Soros v Davison correctly applied: such actions are not to be taken into account.
The Honourable Mr Justice Langstaff
[2007] UKEAT 0515 – 05 – 0902, UKEAT/0515/05
Updated: 09 July 2022; Ref: scu.248967
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment cannot simply be silent on the place of work; if there is no express term, there must be either some rule of law that in all contracts of employment the employer is (or alternatively is not) entitled to transfer the employee from his original place of work or some term regulating the matter must be implied into each contract.’
Browne-Wilkinson J said: ‘In our view, to imply an agreement to vary or to raise an estoppel against the employee on the grounds that he has not objected to a false record by the employers of the terms actually agreed is a course which should be adopted with great caution. If the variation relates to a matter which has immediate practical application (e.g. the rate of pay) and the employee continues to work without objection after effect has been given to the variation (e.g. his pay packet has been reduced) then obviously he may well be taken to have impliedly agreed. But where, as in the present case, the variation has no immediate practical effect the position is not the same. It is the view of both members of this Tribunal with experience in industrial relations (with which the Chairman, without such experience, agrees) that it is asking too much of the ordinary employee to require him either to object to an erroneous statement of his terms of employment having no immediate practical impact on him or be taken to have assented to the variation. So to hold would involve an unrealistic view of the inclination and ability of the ordinary employee to read and fully understand such statements.
Even if he does read the statement and can understand it, it would be unrealistic of the law to require him to risk a confrontation with his employer on a matter which has no immediate practical impact on the employee. For those reasons, as at present advised, we would not be inclined to imply any assent to a variation from mere failure by the employee to object to the unilateral alteration by the employer of the terms of employment contained in a statutory statement.’
Browne-Wilkinson J P
[1981] UKEAT 523 – 80 – 1610, [1981] IRLR 477
Employment Protection (Consolidation) Act 1978 81
Cited – GAP Personnel Franchises Ltd v Robinson EAT 16-Oct-2007
EAT Contract of employment – Damages for breach of contract
Unlawful deduction from wages
Whether express term of contract as to mileage expenses was consensually varied by the Claimant’s . .
Cited – Star Newspapers Ltd v Jordan EAT 22-Nov-1993
. .
Cited – Anglia Regional Co-Operative Society v O’Donnell EAT 24-Feb-1994
. .
Cited – Lombard North Central Plc v Leach and Another EAT 28-Nov-1994
. .
Cited – Aparau v Iceland Frozen Foods Plc EAT 9-Oct-1995
. .
Cited – Amin v London Underground Ltd EAT 25-Apr-1997
. .
Cited – O’Connell v Thames Water Utilities Plc EAT 10-Jun-1999
EAT Redundancy – Other . .
Cited – K O’Flynn v Airlinks the Airport Coach Company Limited EAT 15-Mar-2002
EAT Unfair Dismissal – Reason for Dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Stephen Nigel Millard v Grampian Joint Fire Board OHCS 21-Dec-1999
. .
Cited – McBride v Calcast Ltd NIIT 15-Jan-2003
. .
Cited – Mcbride v Calcast Ltd (Unlawful Deduction of Wages) NIIT 15-Jan-2003
. .
Cited – Hodgson and others v Toray Textiles Europe Ltd ChD 9-Mar-2007
. .
Cited – Wilson (T/A Reds) v Lamb EAT 12-Jun-2007
. .
Cited – Luke v Stoke-On-Trent City Council CA 24-Jul-2007
The employee appealed against a decision rejecting her claim that the employer had made an unlawful deduction from her salary. . .
Cited – Harlow v Artemis International Corporation Ltd QBD 22-May-2008
Claim for damages – enhanced redundancy payment. . .
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 – Solectron Scotland Ltd v Roper and others EAT 31-Jul-2003
The court was asked whether, following a TUPE transfer, a contractual term with regard to the making of enhanced redundancy payments had been preserved.
Held: Elias J said: ‘The fundamental question is this: is the employee’s conduct, by . .
Cited – Khatri v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Apr-2010
The claimant appealed against refusal of summary judgment on his claim for payment of a discretionary employment bonus by the defendant.
Held: The appeal succeeded and summary judgment was given. The contract properly construed did give rise . .
Cited – Courtaulds Northern Spinning Ltd v Sibson CA 1988
The employee driver had complained of a change in the base from which he was employed. The contract of employment was silent as to whether the employer had any right to transfer the employee from one depot to another, and the employer asked that a . .
Cited – Davies v London Borough of Haringey QBD 17-Oct-2014
The claimant had been employed as a teaching assistant. She came to work with the union, eventually being released from her work full time to undertake the role within the union. The defendant suspended the claimant from her role for alleged . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248976
EAT The appellant was disabled. She was found to have been unfairly dismissed and the subject of three acts of disability discrimination. One of these was an alleged failure to consult which was treated as a failure to make a reasonable adjustment, following the decision of the EAT in Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566. She appealed on the grounds that the Tribunal ought to have identified further acts of disability discrimination. The employers cross appealed on the grounds that the Tribunal erred in law in concluding that there had been an unfair dismissal; and that the Tribunal ought not to have applied the Mid-Staffordshire case, both because the failure to consult had never been identified as an issue in the case, and because in any event it was wrong and ought not to be followed. The EAT held that the appeal succeeded in part, it being unclear whether the Tribunal had made a finding in connection with one of the alleged acts of discrimination; and that the cross appeal succeeded with respect to the disability discrimination issue, for both of the reasons advanced; but that the cross appeal against the finding of unfair dismissal failed.
The single question under section 5 was whether the employer had complied with his obligations there set out. If he had failed to conduct a proper (not a ‘formal’) assessment then he could not use ignorance by reason of that failure to excuse lack of compliance; but there was no separate and distinct duty to perform that assessment.
The Honourable Mr Justce Elias (President)
[2006] IRLR 664, UKEAT/0136/06, [2006] UKEAT 0136 – 06 – 0806
Disability Discrimination Act 1996 5
Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited – Hay v Surrey County Council CA 16-Feb-2007
The claimant had been employed driving a mobile library. She came to suffer back problems, and was dismissed when the respondent said that she could not work within a library without the ability to lift, after she turned down a move to a different . .
Cited – London Borough of Camden v Price-Job EAT 18-Dec-2007
EAT Disability discrimination – Reasonable adjustments/Justification
1. The employers appealed against two findings by the Tribunal that they had failed to make reasonable adjustments for her disability and . .
Preferred – Rider v Leeds City Council EAT 27-Nov-2012
rider_leedsEAT2012
EAT DISABILITY DISCRIMINATION
The Claimant worked for the Respondent as a Nursery Officer at Armley Moor Children Centre. She raised grievances against colleagues and she was seconded to another post away . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248854
EAT National minimum wage – Working time regulations
The Claimant was employed as Warden of the Respondent’s Arts Centre. He and his wife, who also worked for the Respondent were required to live in a flat at the Arts centre. His case before the Employment Tribunal was that he actually worked well over 48 hours per week and was required to do so. The Employment Tribunal rejected his case on the facts. The premise on which his appeal was based was that he was ‘on call’ for many hours and that time on call should be treated as working time for the purposes of the Working Time Regulations. That case was contrary to that put before the Employment Tribunal and was inconsistent with its findings of fact. The Claimant was in effect trying to construct a case on all fours with Maccartney v Oversley House Management UKEAT/0500/05, but was bound by the findings of the Employment Tribunal and could not rely upon material that was not placed before it to justify the new case.
Serota QC
[2007] UKEAT 0390 – 06 – 1302
Updated: 09 July 2022; Ref: scu.248798
Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably capable of bearing such a meaning.
Lord Diplock said that: ‘it is a principle of construction of United Kingdom statutes . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.’
Lord Diplock, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Scarman
[1982] UKHL 2, [1982] 2 WLR 918, [1981] 2 CMLR, [1983] 2 AC 751, [1982] ICR 420
EEC Treaty 177, Sex Discrimination Act 1975
England and Wales
See Also – Garland v British Rail Engineering Ltd HL 19-Jan-1981
There was a dispute between an employee of the company, a subsidiary of the British Railways Board, a body created by the Transport Act 1962 to manage the railways in the united kingdom, and her employer concerning discrimination alleged to be . .
At ECJ – Garland v British Rail Engineering Ltd ECJ 9-Feb-1982
garland_breECJ1982
The fact that an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement constitutes discrimination within the meaning of article 119 against former female . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248666
The company appealed a finding that it had been paying workers at less than the minimum hourly rate. Its workers resided at their places of work, and deductions were made toward the cost of providing accomodation etc. The company claimed that the charge for heating fell within its provision of accomodation.
Held: It was a condition of the minimum wage that people should be paid in money not in kind, and employers should not be allowed compulsory deductions from wages. The payments toward heating were accomodation charges since they were required to be made as part of payment for that accomodation. The company’s suggestion that they received the money in trust toward discharge of their obligtions to pay the utility bills did not apply since they were free to use the money for other purposes.
Buxton LJ spoke about the possibilities of abuse and said: ‘as the President of the Employment Appeal Tribunal Elias J will have had well in mind, workers who have to seek the protection of the minimum wage provisions are likely to be in the less advantaged areas of the workforce, possibly with little job security, and unlikely to have strong trade union representation. Broad but simple rules, not leading to elaborate arguments of law when those rules have to be enforced, are likely to be the protection for them that the legislator has thought necessary.’
Buxton LJ, Smith LJ, Wilson LJ
[2007] EWCA Civ 92, Times 07-Mar-2007
National Minimum Wage Act 1998, National Minimum Wage Regulations 1999
England and Wales
Appeal from – Commissioners of Revenue and Customs v Leisure Employment Services Limited EAT 28-Mar-2006
The defendant employed seasonal workers. They deducted from their salaries before payment, fees for accomodation provided.
Held: The deductions reduced the payments below the national minimum wage and were unlawful.
Elis J said: ‘I take . .
Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
Cited – Revenue and Customs v Lorne Stewart Plc (National Minimum Wage) EAT 13-Nov-2014
EAT National Minimum Wage – Lorne Stewart paid for employees to attend courses on condition they signed an agreement to repay all or part of the cost of the course if they left within two years and providing for . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248839
The claimant had been employed driving a mobile library. She came to suffer back problems, and was dismissed when the respondent said that she could not work within a library without the ability to lift, after she turned down a move to a different department. The EAT had found to be perverse the ET’s conclusion that her refusal could only have been unreasonable if the offer of the new post was necessary in order to accommodate her disability, and that the disability could have been accommodated by the adjustments to her existing work that it had identified, the offer of the new post was not necessary or reasonable, and Ms Hay had reasonably refused the offer. It was accordingly unfair to dismiss her on the basis of that refusal. The issue now was again whether the ET’s decision was perverse.
Held: The tribunal’s mistake about the need for the risk assessment was not so severe as to make the decision perverse. However their assessment had been perverse in not acknowledging the effect of the medical evidence. The appeal was dismissed.
Buxton, Rix, Moses LJJ
[2007] EWCA Civ 93, [2006] All ER (D) 322
Disability Discrimination Act 1995 5 6
England and Wales
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited – Tarbuck v Sainsbury’s Supermarkets EAT 8-Jun-2006
EAT The appellant was disabled. She was found to have been unfairly dismissed and the subject of three acts of disability discrimination. One of these was an alleged failure to consult which was treated as a . .
Cited – London Borough of Camden v Price-Job EAT 18-Dec-2007
EAT Disability discrimination – Reasonable adjustments/Justification
1. The employers appealed against two findings by the Tribunal that they had failed to make reasonable adjustments for her disability and . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248838
ECJ Free movement of persons – Protection of employees in the event of the employer’s insolvency – Directive 80/987/EEC Transposition Article 8 Supplementary company or inter-company pension schemes – Old-age benefits – Protection of rights conferring immediate entitlement Extent of protection Liability of a Member State by reason of the incorrect transposition of a directive Conditions.
CWA Timmermans, P
[2007] ICR 779, [2007] IRLR 270, [2007] ECR I-1053, C-278/05, [2007] EUECJ C-278/05, [2006] EUECJ C-278/05, [2007] 2 CMLR 269, [2007] All ER (EC) 648, [2007] Pens LR 55
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248869
The House considered whether a series of short employment contracts amounted to one continuing one.
Held: In deciding whether in the case of employment under a series of short contracts the intervals between the contracts amount to temporary cessation of work, one must look back from the date of termination of the employment over the whole period during which the employee has been employed.
Lord Upjohn explained that one should look at the cessations of work with hindsight, that is with knowledge of all that has happened, and then decide whether in all the circumstances of the case the cessations can properly be described as temporary. He said that each case must depend upon its own particular circumstances and that common sense must provide the answer.
Lord Morris said that one can take account of what the parties expected at the relevant time: ‘If in reference to the time when a cessation of work begins there is evidence showing that both the employer and the employee expected and anticipated that the cessation would only be for a relatively short time, that would be very relevant evidence in considering at a later time whether there had been a temporary cessation of work . . All relevant evidence and all relevant factors will have to be taken into account.’
Lord Reid, Lord Morris of Borth-y-Gest, Lord Guest, Lord Upjohn, Lord Wilberforce
[1969] UKHL 7, [1970] AC 984, [1969] 3 WLR 868, [1969] 3 All ER 1140
England and Wales
Updated: 09 July 2022; Ref: scu.248582
EAT Unfair dismissal – Contributory fault
Employment Tribunal took into account post-dismissal behaviour in assessing reduction for contributory fault.
Argument that Employment Tribunal had in mind assessing compensation as less because of after dismissal actions of Claimant dismissed not only on basis of what Employment Tribunal said, but on basis that Soros v Davison correctly applied: such actions are not to be taken into account.
[2007] UKEAT 0116 – 06 – 0902
Updated: 09 July 2022; Ref: scu.248453
EAT Contract of Employment – Definition of employee
Sex Discrimination
Whether specialist orthodontist consultant an employee – job advertisement for salaried part-time employment in a clinic – contract documentation produced to successful candidate suitable for an independent contractor with own organisation using sub-contractors – whether Tribunal restricted to contract documentation or entitled to take account of job advertisement and subsequent conduct of the parties.
Richardson J
[2007] UKEAT 0308 – 06 – 3101
Updated: 09 July 2022; Ref: scu.248451
EAT Disability Discrimination – Reasonable adjustments
Unfair Dismissal – Reason for dismissal including substantial other reason; Reinstatement/re-engagement
The Employment Tribunal found that the claimant had been the subject of unjustified disability related discrimination when she was dismissed because, in the employer’s view, she was not fit enough to carry out the safety functions required of her in the event of emergencies. The Tribunal held that on the medical evidence available to the employer, they ought not to have reached that conclusion. They also held that the employer had failed to make reasonable adjustments in breach of s.4A of the Disability Discrimination Act. However, it was accepted by the employee that the adjustments could only be considered appropriate on the assumption that the employer ought to have found that the employee was fit to do the job. The Tribunal found – wrongly, as the employee conceded – that the disability related dismissal was automatically unfair. They ordered reinstatement and when that was not complied with, awarded additional compensation of 52 weeks’ pay. The employer challenged all these findings. The key issue was whether the Tribunal was entitled to make its own independent assessment of the medical evidence. The EAT held that it was not and that the Tribunal erred in law in substituting its view as to the fitness of the employee for the employer. Nor could it possibly be said that the employer’s decision was perverse. It followed that the disability related dismissal was justified, and that none of the adjustments identified were reasonable since none would have achieved the objective of getting the employee back to work. In the event the other issues fell away. The EAT further held that it was not appropriate to require reinstatement in this case in any event.
[2007] UKEAT 0497 – 06 – 0902
Updated: 09 July 2022; Ref: scu.248454
EAT Practice and Procedure – Amendment; 2002 Act and Pre-action Requirements
Whether actual dismissal effectively withdrawn by employer during internal appeal process; whether Claimant should have permission to amend ET1 to add alternative claim of constructive (unfair) dismissal. Consideration of regs 6, 15 DR Regs. Application of Selkent principles.
His Honour Judge Peter Clark
[2007] UKEAT 0356 – 06 – 3001, UKEAT/0356/06, [2007] ICR 917
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.
Updated: 09 July 2022; Ref: scu.248446
The plaintiff’s estate sought payment from the employer who had agreed to pay the deceased thirty pounds for an entire voyage. The plaintiff died part way through the voyage. The estate argued for payment on a quantum meruit.
Held: The court found there was no standard custom and practice. The contract was for an entire service. It was a condition precedent for payment that that service be completed. It had not been, and no payment was due. Ashurst J said: ‘This is a written contract, and it speaks for itself. And as it is entire, and as the defendant’s promise depends on a condition precedent to be performed by the other party, the condition must be performed before the other party is entitled to receive any thing under it. It has been argued however that the plaintiff may now recover on a quantum meruit: but she has no right to desert the agreement; for wherever there is an express contract the parties must be guided by it; and one party cannot relinquish or abide by it as it may suit his advantage.’
[1795] EWHC KB J13, [1795] EngR 4125, (1795) 6 TR 320, (1795) 101 ER 573
England and Wales
Updated: 09 July 2022; Ref: scu.248375
EAT Practice and Procedure – New evidence on appeal
Practice and Procedure – 2002 Act and pre-action requirements
The Appellant wished to adduce new evidence (which would have been available below) to contradict a statement in the ET1 which had not been controverted in the ET3 and despite having been given (but not taken) the opportunities of an adjournment to adduce evidence by the ET. Refused.
ET construed the Respondent’s letter in its context as sufficiently raising a grievance. Entitled to do so. No error of law.
[2006] UKEAT 0519 – 06 – 1912, UKEAT/0519/06
Updated: 09 July 2022; Ref: scu.248314
EAT Unfair Dismissal – constructive dismissal
In a constructive dismissal claim based on a disciplinary sanction short of dismissal, the issue is whether the sanction was disproportionate. Although BHS v Burchell should not be imported wholesale into cases of constructive dismissal, where the issue was the severity of a disciplinary penalty, it was not an error of law to consider whether the sanction fell outside the band of reasonable responses.
[2007] UKEAT 0309 – 06 – 2501
Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248271
EAT A employed R as a support worker. R made a number of protected disclosures relating to a fellow worker’s conduct towards a client. The ET held various detriments were suffered by R on the ground of the disclosures. On appeal A asserted (1) the ET did not give adequate reasons, (2) the findings were perverse, (3) the ET must have applied the wrong test in law and (4) A will not in law be responsible viciously for detriments suffered as a result of the acts of a fellow employee of R.
Held: (1) the reasons were adequate, (2) the findings would not be said to be perverse, (3) the ET had not applied the wrong test in law and (4) A could be responsible for the acts of a fellow employee of R.
Reid QC J
[2007] UKEAT 0323 – 06 – 2901, UKEAT/0323/06, [2007] IRLR 314
Employment Rights Act 1996 43A 43B 43C
England and Wales
Cited – Crofton v Yeboah EAT 16-May-2001
After a very long hearing, the appellant had been found guilty of race discrimination in his making of allegations about the behaviour of the respondent in failing to investigate corruption within Hackney London Borough Council.
Held: The . .
Cited – Woodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Wrongly Decided – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248272
EAT Equal Pay Act – Equal value – It is not an error of law for an Employment Tribunal to refuse to admit part of an employer’s expert report on the evaluation of two jobs if it or the part excluded does not comply with Rule 11. In any event the Employment Tribunal had a discretion which it exercised correctly.
GMF defence raises difficult points and should go to Full Hearing.
His Honour Judge Mcmullen QC
UKEAT/0508/05, [2005] UKEAT 0508 – 05 – 3011
Updated: 09 July 2022; Ref: scu.248294
EAT Sex discrimination – Comparison
When a male manager entered the women’s toilets and shouted at a woman on her break, the correct question which should be asked is this: would the Respondent, in the form of a female manager, with the same robust management style as this manager, treat a male cleaner having the same sensitivity as the Claimant, believed to be skiving, in the same way as he treated the Claimant.
The Employment Tribunal failed to construct the correct comparator. EAT substituted its Judgment and set aside the finding of sex discrimination.
His Honour Judge McMullen QC
[2006] UKEAT 0016 – 06 – 0811, UKEATS/0016/06
Sex Discrimination Act 1975 1(1)(a) 5(3)
England and Wales
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Macdonald v Ministry of Defence EAT 19-Sep-2000
EAT Sex Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248311
EAT Transfer of Undertakings: Continuity of Employment
Employment Tribunal Judgment on a preliminary point that employee did not transfer overturned as it did not consider and apply the European Court of Justice Judgment in Botzen [1986] 2 CMLR 50. Claimant was assigned exclusively to the Respondent’s predecessor’s cafe and her contract of employment was transferred. She had continuous employment.
McMullen QC J
[2005] UKEAT 0198 – 06 – 0109
Updated: 09 July 2022; Ref: scu.248290