[1993] UKEAT 697 – 92 – 1205
England and Wales
See Also – Sharma v Viva Video Club EAT 30-Nov-1992
. .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.210600
[2001] EWCA Civ 1751
England and Wales
Appeal from – Cameron v Digital Equipment Co Ltd EAT 19-Jan-1999
. .
See Also – Cameron v Digital Equipment Company Ltd CA 25-Feb-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.201474
[2001] EWCA Civ 870
England and Wales
Appeal from – F D Skidmore v Dartford and Gravesham NHS Trust EAT 22-Feb-2001
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
see Also – Skidmore v Dartford and Gravesham NHS Trust CA 15-Jan-2002
The appellant was a doctor accused of lying to a patient about the details of an operation. He appealed a decision dismissing him.
Held: Such an allegation was an allegation of professional misconduct, and should have been dealt with as such, . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.201180
[2001] EWCA Civ 549, [2001] IRLR 465
England and Wales
See Also – Tyagi v BBC World Service EAT 27-Sep-1999
. .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.200940
Application for leave to appeal against dismissal of complaint of race discrimination and unfair dismissal.
Peter Gibson LJ
[2001] EWCA Civ 446
Race Relations Act 1976 1(1)(a)
England and Wales
Updated: 23 November 2022; Ref: scu.200861
[2001] EWCA Civ 358
England and Wales
Updated: 23 November 2022; Ref: scu.200796
Donaldson LJ said: ‘Industrial tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law . . their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.
This, to my mind, is to misuse the purpose for which the reasons are given.’
Donaldson LJ
[1981] IRLR 225
England and Wales
Cited – S Hackett v Vaw Motorcast Ltd EAT 22-Jan-2001
The appellants appealed a decision awarding costs against them following a failed application. An order had been made under the rules requiring them to deposit costs against the expectation of the tribunal that their claim would fail. The eventual . .
Cited – DPP Law Ltd v Greenberg CA 7-May-2021
Respect for ET judgment where prriciples set out
The respondent solicitor, had unlawfully accepted a payment of cash from the father of a criminal Legal Aid client. The firm now appealed from a finding that he had been unlawfully dismissed for gross misconduct.
Held: The appeal succeeded: . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.181339
Post-termination restraints in a service agreement.
[2003] EWCA Civ 518
England and Wales
Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.180723
The transfer of an undertaking involved a series of acts which need not occur at the same time and the time of such transfer must be construed flexibly to reflect the period of time over which the transfer actually occurs.
Times 10-Sep-1998, Gazette 30-Sep-1998, [1998] EWCA Civ 1294, [1998] IRLR 577, [1998] 4 All ER 353, [1999] ICR 276
Employment Rights Act 1996 218(2)
England and Wales
Updated: 23 November 2022; Ref: scu.144773
[1998] EWCA Civ 1254
England and Wales
See Also – Williams v Cowell and Another (t/a The Stables) CA 11-Aug-1999
There was no right in an appellant from an Industrial Tribunal sitting in Wales to the Employment Appeal Tribunal sitting in London to insist that the Tribunal hear the case in Welsh. The appellant spoke English perfectly well, it was not a matter . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.144733
An employer can defend a claim resulting from the otherwise unlawful discriminatory actions of an employee if it is able to rely on section 109(4) Equality Act 2010 because it can demonstrate that all reasonable steps were taken to prevent the employee from doing ‘that thing’, or ‘anything of that description’. In considering the steps that have been taken, and whether further reasonable steps were required, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and, in appropriate circumstances, how effective they have proved to be in practice. The tribunal in this case was entitled to conclude that such training as had been provided to the perpetrator of race harassment, and a number of other employees, including two managers who failed to report matters to HR, had become stale and required refreshing.
[2021] UKEAT 0031 – 20 – 0402
England and Wales
Updated: 22 November 2022; Ref: scu.661690
UNFAIR DISMISSAL
WHISTLEBLOWING, PROTECTED DISCLOSURES
CONTRACT OF EMPLOYMENT
The employment tribunal found that the Claimant had been unfairly dismissed, contrary to section 94 of the Employment Rights Act 1996 (‘the ERA’), and wrongfully dismissed, but had not been automatically unfairly dismissed, contrary to section 103A of the ERA.
On the Respondent employer’s appeal from the findings of unfair and wrongful dismissal, no error of law had been demonstrated. The Tribunal had not: (a) substituted its own view for that of the Respondent; (b) misinterpreted section 98(4) of the ERA; (c) approached the evidence in a way which amounted to a serious procedural irregularity and/or a breach of natural justice; (d) erred in its approach to, or assessment under, Polkey v AE Dayton Services Limited [1988] ICR 142, HL; (e) erred in its approach to and assessment of contributory fault; or (f) misinterpreted the test for wrongful dismissal.
On the Claimant’s cross-appeal from the tribunal’s dismissal of his claim for automatic unfair dismissal, the matter would be remitted to the same tribunal, for it to consider the Claimant’s submissions to the effect that, whilst his conduct had provided the opportunity for dismissal, the principal reason for the latter had been his (acknowledged) protected disclosure.
[2020] UKEAT 0020 – 19 – 0105
England and Wales
Updated: 22 November 2022; Ref: scu.650592
[2020] EWCA Civ 551
England and Wales
Updated: 22 November 2022; Ref: scu.650174
Goldenfry claimed that in breach of their duties owed to Goldenfry A and others set up Frontier and misused confidential information and/or trade secrets belonging to Goldenfry so as unfairly to compete with Goldenfry.
His Honour Judge Behrens
sitting as a Judge of the High Court in Leeds
[2011] EWHC 137 (QB)
England and Wales
Updated: 22 November 2022; Ref: scu.464590
[2012] EWHC 1739 (QB)
England and Wales
Updated: 22 November 2022; Ref: scu.463849
The claimant faced a finding that the Industrial Tribunal did not have jurisdiction. He sought leave to appeal to establish by another route under Schedule 13, the necessary continuity of employment under Section 64(1)(a).
Held: Continuity of employment, and therefore the qualifying period for a claim, is a question of jurisdiction. Knox J said: ‘We have come to the conclusion that the statement to be found in House is not to be construed as meaning that any and every point on jurisdiction, whether or not it may involve the adducing of further evidence, can be taken at any stage in the proceedings. For that in our view would be much too wide a principle. In each case in our view, the Court has to decide on balance whether justice requires that the new point should be allowed to be taken’.
The case of House was not one where the Industrial Tribunal had accepted jurisdiction when they had no jurisdiction to do so, and ‘As to that there can, in our view, be no doubt at all, but that the point can be argued before the Appeal Tribunal’.
Knox J
[1989] ICR 629
Trade Union and Labour Relations Act 1974
England and Wales
Distinguished – House v Emmerson Electric Industrial Controls EAT 1980
An unsuccessful Applicant sought leave to argue a jurisdictional point which he had not raised at the hearing before the Industrial Tribunal.
Held: Talbot J allowed the point to be raised saying: ‘For instance, if an Industrial Tribunal had . .
Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.270359
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before the dismissal actually occurred, she might have a separate claim for damages, but that claim was only at common law, and not before an industrial tribunal. The right to claim compensation at the tribunal related only to damages arising as part of the dismissal. The employer’s appeal succeeded to that extent.
Tuckey LJ, Lawrence Collins LJ, Rimer LJ
[2008] EWCA Civ 17, Times 05-Mar-2008, [2008] IRLR 317, [2008] ICR 529
Employment Rights Act 1996 123(1)
England and Wales
Appeal from – GAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Wallace v United Grain Growers Ltd 30-Oct-1997
SCC (Supreme Court of Canada) Bankruptcy – Property of bankrupt – Salary, wages or other remuneration – Undischarged bankrupt bringing action for wrongful dismissal – Whether damages for wrongful dismissal . .
Cited – Gogay v Hertfordshire County Council CA 26-Jul-2000
The employee sought damages for breach of the implied term of trust and confidence, even though she remained throughout the employment of the Council against whom she was bringing proceedings.
Held: Her remaining in employment was a factor . .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Brown v Almac Pharma Services Ltd NIIT 1-Sep-2008
. .
Cited – F and C Asset Management Plc and others v Switalski EAT 9-Dec-2008
EAT PRACTICE AND PROCEDURE: Review
UNFAIR DISMISSAL: Constructive dismissal
SEX DISCRIMINATION: Direct
Two appeals in respect of two matters heard together by the Employment Tribunal:
(i) . .
Cited – Parsons v Bristol Street Fourth Investments Ltd (T/A Bristol Street Motors) EAT 28-Feb-2008
EAT Unfair dismissal – Constructive dismissal
Constructive dismissal. Conduct likely to destroy trust and confidence. Appeal allowed; finding of unfair constructive dismissal substituted for ET judgment . .
Cited – Diamond v Montgomery Distribution Ltd NIIT 29-Apr-2008
. .
Cited – Edinburgh Council v Wood EAT 2-May-2008
EAT UNFAIR DISMISSAL: Constructive dismissal – Tribunal found two ‘stand alone’ material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s . .
Cited – Adey-Jones v O’Dowd EAT 22-May-2008
EAT UNFAIR DISMISSAL: Compensation Contributory fault
Where an employee suffered illness partly as a result of the employer’s conduct and partly for other reasons an Employment Tribunal must make careful . .
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.264018
Interim hearing – matter approved for full hearing.
Lindsay J
[2000] UKEAT 58 – 00 – 2903
England and Wales
See Also – Reid v North West Ceilings Ltd (T/A Shopspec) EAT 2-Apr-2001
Definition of employee . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.264950
The court considered the dismissal by an employer of an employee for a disciplinary offence when he would not have been dismissed but for an earlier warning which had expired.
Held: The company’s appeal succeded. The court summarised the balance as follows: ‘On the one hand, if the employer has chosen to impose a time-limited final warning, it can be argued that it would be unfair to allow him to go back on that and to escape from the consequences of his decision to deal with an employee in that way. On the other hand, if an employee has been previously disciplined for misconduct for which he could have been fairly dismissed, it can be argued that it is not necessarily unfair for the employer to take into account, on a later occasion of similar misconduct, the fact that employee has done this sort of thing before. ‘The earlier cases did not deal with the situation as here where the previous offence was very similar to the one no at issue. The tribunal had ‘erred in law in holding that it was required by the authorities to hold that Airbus acted unreasonably in dismissing Mr Webb for a conduct reason, when the reason for dismissal shown by Airbus was the later misconduct and not the expired final warning given in respect of previous misconduct by Mr Webb. ‘
[2008] EWCA Civ 49, [2008] IRLR 309, [2008] ICR 561
Employment Rights Act 1996 98(4)
England and Wales
Cited – Diosynth Limited v Morris Thomson IHCS 1-Feb-2006
. .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Marshalls Clay Products Ltd Pearce Clarke, Sutton, Hoy v Caulfield and others, Huw Howatson Ltd Frank Studdon Ltd, Potting Constuction Ltd, Hanlin Construction EAT 25-Jun-2003
Conjoined appeals were considered on the issue of whether holiday pay arrangements met the requirements of the Working Time Regulations, where holiday pay was in some was rolled up with normal pay.
Held: Five categories were identified. Those . .
Cited – UK Coal Mining Ltd v Raby EAT 30-Jan-2003
EAT Two employees had fought at work. One had an expired formal written warning on his record. It had been reduced on appeal from a final warning. His disciplinary offence was of a different nature than the later . .
Cited – William Grant and Sons Ltd v Devlin EAT 25-Mar-2004
The ET had decided that the employee’s dismissal had been unfair on grounds including that the employer had taken account of an expired warning.
Held: The decision was upheld. Lord Johnston said: ‘a final written warning, which is given a time . .
Cited – Sarkar v West London Mental Health NHS Trust CA 19-Mar-2010
The doctor had been summarily dismissed for gross misconduct. He now appealed against the EAT’s reversal of the finding of unfair dismissal. The original procedure adopted was appropriate to a lesser level of misconduct, but the employer had later . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.264120
Lord Donaldson MR, Balcombe LJ, Sir John Megaw
[1992] EWCA Civ 1, [1992] IRLR 362, [1992] ICR 706
England and Wales
Updated: 22 November 2022; Ref: scu.262625
The employer appealed findings of constructive dismissal after two of its immigration officers had refused to be moved under mobility clauses in their contracts, rather than be made redundant.
Held: The appeal succeeded. The question was not the Home Office’s motive for its change of mind, but whether it was legally entitled to invoke the mobility clause. It was so entitled. Curling was not authority for the proposition that an employer is not legally entitled to invoke a mobility clause when a redundancy situation might arise or has arisen on the closure of part of a business.
Mummery LJ, Laws LJ, Blackburne J
[2007] EWCA Civ 1089, [2008] IRLR 59, [2008] ICR 302
Employment Rights Act 1996 139
England and Wales
Distinguished – Curling and others v Securicor Ltd EAT 28-Jul-1992
The employer wanted to invoke a mobility clause raher than, as it originally set out to do, to consult on redundancies. The change of course was first raised at the hearing in the industrial tribunal.
Held: The principle that the employer . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.260197
Mummery LJ, David Richards J, Sir Paul Kennedy
[2007] EWCA Civ 1188, [2008] 2 All ER 977, [2008] IRLR 66, [2008] ICR 442
England and Wales
Appeal from – Power v Regent Security Services Ltd EAT 29-Jan-2007
EAT Transfer of Undertakings – Acquired rights directive
The appellant was employed to manage a particular estate under a contract which stipulated that his contractual retirement age was 60. The part of the . .
Cited – Southern Cross Healthcare Co Ltd v Perkins and Others EAT 21-Apr-2010
EAT CONTRACTS OF EMPLOYMENT
Written Particulars
The employment tribunal can reformulate the juridical basis of a complaint so long as the facts upon which the complaint is based remain the same and . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.261456
Equal Pay claims.
[2005] EWCA Civ 726, [2005] IRLR 615, [2005] ELR 475
England and Wales
Appeal from – Degnan and others v Redcar and Cleveland Borough Council EAT 14-Apr-2005
EAT Sex Discrimination – Injury to feelings.
EAT Equal Pay Act – Out of time . .
Cited – European Credit Management Ltd v Hosso EAT 12-Aug-2008
EAT Practice and Procedure
The issue was whether the modified grievance procedure had been satisfied in relation to a claim for larger payments when no specific mention of such payment had been made in any . .
Cited – Brownbill and Others v St Helens and Knowsley Hospital NHS Trust EAT 6-Aug-2010
EAT EQUAL PAY ACT – Case management
This appeal by some of the Claimants in a multiple equal pay claim, from a judgment on a PHR, raised the important question of the meaning of section 1(2) of the Equal Pay . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.226729
The claimant appealed dismissal of his claim for race discrimination, saying that the defendant had failed to comply with its own disciplinary procedures. She had been accused of making inappropriate remarks after 9/11. The EAT had found that the ET had misunderstood the defendant’s procedures.
Held: The appeal succeeded. The suspension had proceeded despite awareness that the evidential basis was weak, and without proper enquiries. The Code required more than mere suspicion of gross misconduct, that suspicion must also be based on reasonable grounds.
Ward LJ, Smith LJ, Richards LJ
Times 30-Aug-2006, [2006] EWCA Civ 1136, [2007] ICR 153
England and Wales
Appeal from – The Crown Prosecution Service v Aziz EAT 23-May-2005
EAT Race Discrimination – Erroneous construction by Employment Tribunal in law of Respondent’s disciplinary procedures led to the conclusion that the Respondent had acted in deliberate breach of its own procedure . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.244095
[2002] EWCA Civ 551
England and Wales
Updated: 22 November 2022; Ref: scu.216895
[2002] EWCA Civ 488, [2002] ICR 910, [2002] IRLR 472, [2002] Emp LR 1031
England and Wales
Updated: 22 November 2022; Ref: scu.216896
Peter Gibson J
[2001] EWCA Civ 1061
England and Wales
Updated: 22 November 2022; Ref: scu.201191
[2001] EWCA Civ 1842
England and Wales
Updated: 22 November 2022; Ref: scu.201473
[2001] EWCA Civ 626
England and Wales
Updated: 22 November 2022; Ref: scu.200990
[2001] EWCA Civ 432
England and Wales
Updated: 22 November 2022; Ref: scu.200894
[2001] EWCA Civ 574
England and Wales
Updated: 22 November 2022; Ref: scu.200975
[2001] EWCA Civ 220
England and Wales
Updated: 22 November 2022; Ref: scu.200853
[2001] EWCA Civ 303
England and Wales
Updated: 22 November 2022; Ref: scu.200858
[2001] EWCA Civ 188
England and Wales
Updated: 22 November 2022; Ref: scu.200814
[2001] EWCA Civ 196
England and Wales
Updated: 22 November 2022; Ref: scu.200799
Lord Justice Ward Lord Justice Scott Baker Lord Justice Thomas
[2003] EWCA Civ 1696
England and Wales
Updated: 20 November 2022; Ref: scu.188255
[2003] EWCA Civ 1194
England and Wales
Updated: 20 November 2022; Ref: scu.185527
[2003] EWCA Civ 1200
England and Wales
Updated: 20 November 2022; Ref: scu.185525
[2003] EWCA Civ 135, [2003] IRLR 232, [2003] All ER (D) 299
England and Wales
Appeal from – Dr A Jiad v M Byford L Granger J Youngson, G Dyke EAT 14-Feb-2002
EAT Procedural Issues – Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.180712
The appellant had undergone a male to female sex change, but was refused employment by the respondent before the Human Rights Act came into effect.
Held: Although the Human Rights Act could not apply, the act was in breach of the Equal Treatment Directive and discrimination. The 1999 regulations were incompatible with the provisions of the Directive. The respondent said that it was a requirement of the job that an officer be ready to search a person of the same sex, under the 1984 Act. Following Goodwin, it was no longer permissible to treat the applicant other than as a female. It is now necessary to apply the law as developed by the European convention jurisprudence. It was necessary to decide first what is ‘the appellant’s legal gender’. There had been gender reassignment surgery and the Court concluded that the appellant had become female.
Kennedy, Buxton, Keene LJJ
Times 14-Nov-2002, Gazette 09-Jan-2003, [2002] EWCA Civ 1584, [2003] ICR 161
Equal Treatment Directive (76/207/EEC) (OJ 1976 L39/40), Sex Discrimination Act 1975 Part II, Sex Discrimination (Gender Re-Assignment) Regulations 1999 (1999 No 1102), Police and Criminal Evidence Act 1984 54
England and Wales
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Appealed to – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Appeal from – The Chief Constable of the West Yorkshire Police v A, Secretary of State for Education EAT 2-Oct-2001
The Force appealed findings of sex discrimination against the respondent who had undergone gender reassignment. She required the fact of the procedure to be kept secret. The force refused her application for appointment since they said she would be . .
Cited – Croft v Royal Mail Group Plc (formerly Consignia Group plc) CA 18-Jul-2003
The employee was a transsexual, awaiting completion of surgical transformation to a woman. The employer said she could not use the female toilet facilities, but was offered use of the unisex disabled facilities.
Held: The 1975 Act provides for . .
Appeal from – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.178099
The claimants who worked in the House asked whether they had a contractual right to annual pay increases until they reach the top of the pay scale for their respective pay bands.
Supperstone J
[2014] EWHC 93 (QB)
House of Commons (Administration) Act 1978
England and Wales
Updated: 20 November 2022; Ref: scu.520898
When an appeal concerns a decision of the Tribunal on an application to postpone a hearing because the applicant is not fit to attend, the Employment Appeal Tribunal may only intervene on Wednesbury grounds. O’Cathail v Transport for London [2012] ICR 614 remains good law, and has not been implicitly overruled by R (Osborn) v Parole Board of England and Wales [2014] AC 1115. The O’Cathail line of authorities co-exists with authorities such as Rackham v NHS Professionals Limited, UKEAT/0110/15 and Galo v Bombardier Aerospace UK [2016] IRLR 703, which concern the question of adjustments to secure a fair Hearing, and in respect of which the appeal Court must decide for itself what fairness requires.
Where an application to postpone a Hearing, the outcome of which may determine the complaint, is made by an applicant who is unfit to take part, their right to a fair trial is engaged, and proper weight must be given to the serious implications for them of refusing a postponement. This will usually outweigh the inconvenience and cost to the other party of granting the postponement: Teinaz v London Borough of Wandsworth [2002] ICR 1471. But the implications for the other party’s right to a fair trial, and the wider public interest, of not postponing, must also be weighed in the balance, and may tip it the other way.
The Tribunal’s assessment of when, realistically, the matter is likely to come to an effective Hearing if the application is granted, and what the medical evidence indicates about that, will often be of crucial importance. Andreou v Lord Chancellor’s Dept [2002] IRLR 728 and the Presidential Guidance on seeking a postponement (2013) considered. The Tribunal may also properly draw on other relevant evidence and information, including in relation to the course and conduct of the litigation hitherto, when forming a view on that question.
In the present case, the Claimant, who was, at the time of her application, unrepresented, applied for a postponement of the full merits Hearing, on the grounds of medical unfitness. The Tribunal accepted that she was unfit but, in all the circumstances, refused the application. Having regard, in particular, to the content of the medical evidence, the history of the course and conduct of the litigation during a period when the Claimant had had representation, and the Tribunal’s proper assessment of when, if the application were to be granted, the matter would be likely to come to an effective Hearing, its decision was not Wednesbury-unreasonable.
[2021] UKEAT 0169 – 19 – 1203
England and Wales
Updated: 20 November 2022; Ref: scu.661704
This judgment may serve as another reminder that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The exercise starts with the parties making submissions on the specific practical consequence of allowing or refusing the amendment. If they do not do so, it will be much more difficult for them to criticise the Employment Judge for failing to conduct the balancing exercise properly.
The balancing exercise is fundamental. The Selkent factors should not be treated as if they are a list to be checked off.
An Employment Judge may need to take a more inquisitorial approach when dealing with litigants in person.
In this case the Employment Judge had not erred in law in refusing the amendment.
[2020] UKEAT 0147 – 20 – 0911, [2021] ICR 535
England and Wales
Updated: 20 November 2022; Ref: scu.661665
Jon Turner QC sitting as a Deputy High Court Judge
[2020] EWHC 1008 (QB)
England and Wales
Updated: 20 November 2022; Ref: scu.650209
Contrary to the Coal Mines Order 1st September 1913, a miner proceeded to remove the stemming from an unexploded charge which had missed fire. An explosion took place, as a result of which he died. His widow claimed compensation from the respondents his employers, under the Workmen’s Compensation Act 1906. Held that the accident did not arise ‘out of and in the course of’ the deceased’s employment, since the deceased was engaged in an act expressly excluded from his employment by the provisions of the Coal Mines Order.
Lords Cave, Dunedin, Atkinson, Shaw, and Sumner
[1920] UKHL 659, 58 SLR 659
Workmen’s Compensation Act 1906
England and Wales
Updated: 20 November 2022; Ref: scu.631521
His Honour Judge Saffman
[2014] EWHC 1781 (Ch)
England and Wales
Updated: 20 November 2022; Ref: scu.536004
[2013] EWHC 768 (Ch)
England and Wales
Updated: 20 November 2022; Ref: scu.472531
Application for adjournment
Tugendhat J
[2012] EWHC 2827 (QB)
England and Wales
Updated: 20 November 2022; Ref: scu.464876
[2009] EWHC 2606 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.431292
The claimant sought damages from the defendants, former employees, said to have diverted work.
Hickinbottom J
[2010] EWHC 2878 (QB), [2011] IRLR 138
England and Wales
Updated: 19 November 2022; Ref: scu.430510
The claimant brought actions in libel after reports by his manager on his work performance. The defendant sought summary dismissal and a ruling that the words complained of were not defamatory.
Sharp J
[2010] EWHC 3057 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.426531
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools.
Held: The employee’s appeal succeeded. The majority of the Employment Tribunal, the Employment Appeal Tribunal, and the majority of the Court of Appeal were wrong to apply a narrower test as to whether the terms of the claimant and the comparator were broadly similar. It was sufficient to establish common terms and conditions to show that the claimant and her comparators were employed on terms and conditions derived from the same collective agreement.
Lord Bridge of Harwich
[1989] ICR 33, [1989] IRLR 28
England and Wales
Cited – British Coal Corporation v Smith and Others HL 23-May-1996
The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and . .
Cited – White v Burton’s Foods Ltd EAT 6-Jul-2010
EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.420384
[1977] ICR 167
England and Wales
Approved – Grundy v Willis 1976
Phillips J said: ‘So the duty of a tribunal is to take into account the reason . . and all the other facts and circumstances known to the employer, and ask whether for that reason, and in those circumstances, having regard to equity and the . .
Cited – Haddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.374401
[2008] EWHC 3302 (Admin)
England and Wales
Updated: 19 November 2022; Ref: scu.293964
[2001] UKEAT 375 – 00 – 1511
England and Wales
Updated: 19 November 2022; Ref: scu.204417
Appeal against refusal of enhanced redundancy payment.
Auld LJ, Dyson LJ, Sir Martin Nourse
[2006] EWCA Civ 1277
England and Wales
Updated: 19 November 2022; Ref: scu.245189
[1995] UKEAT 806 – 94 – 2701
England and Wales
Updated: 19 November 2022; Ref: scu.208872
[2001] UKEAT 809 – 01 – 1511
England and Wales
Updated: 19 November 2022; Ref: scu.204485
[2001] EWCA Civ 929
England and Wales
See Also – Lardier v British Gas Research and Technology Plc EAT 3-Feb-1997
. .
See Also – Lardier v British Gas Research and Technology Plc EAT 20-Nov-1998
. .
See Also – B G Lardier v British Gas Research and Technology Plc EAT 11-Oct-1999
EAT Unfair Dismissal – Procedural Fairness
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Appeal from – Lardier v British Gas Research and Technology Plc EAT 5-Mar-2001
. .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.201155
[2001] EWCA Civ 711
England and Wales
Updated: 19 November 2022; Ref: scu.201031
Whether employer entitled to dismiss an employee convicted of football hooliganism.
Held: Yes
[2001] EWCA Civ 940, [2001] Emp LR 784
England and Wales
Updated: 19 November 2022; Ref: scu.201172
[2001] EWCA Civ 1022
England and Wales
Updated: 19 November 2022; Ref: scu.201162
[2003] EWCA Civ 1743
England and Wales
Updated: 19 November 2022; Ref: scu.188479
Mitting J
[2003] EAT 1094 – 02 – 1404, [2003] UKEAT 1094 – 02 – 1404
Trade Union and Labour Relations (Consolidation) Act 1992 188
England and Wales
Updated: 19 November 2022; Ref: scu.191503
There was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer complained of could be severed from the employer’s conduct leading to the dismissal, and thus found a claim.
Held: The acts/conduct complained of could not be so severed. In Johnson the majority in the House of Lords held that unfairness in the manner of dismissal of an employee does not give rise to a common law action, whether it be founded in contract or in tort, but must be the subject of Employment Tribunal proceedings. The implied term of trust and confidence cannot be used in connection with the way the employer/employee relationship is terminated. There may be cases where the particular manner in which an employee is dismissed or the circumstances attending dismissal is or are confined to events occurring at the same time or immediately before the dismissal. In other cases that manner and those circumstances may include a pattern of events stretching back over a period. It is a question of fact for the trial judge to determine in each case. The claimant fell within the latter categor
Peter Gibson LJ
[2002] IRLR 447, [2002] EWCA Civ 463, [2003] ICR 520, [2002] Emp LR 795
England and Wales
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Appealed to – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Appeal from – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.183849
The claimant had been unfairly dismissed but in addition to this employment she had also lost her earnings from a private practice as an aerobics teacher at the same facility where she was employed. She had been awarded damages for the employment loss, but not the rest.
Held: The court did not state as a proposition of law that no award could ever be made under Section 123 for loss of self-employed earnings or, at any rate, the loss of an opportunity to earn them. There could be a situation under a contract of employment where the opportunity to earn other money, using the employer’s facilities, in a self-employed capacity, could come within Section 123 when an award was quantified. However, on the facts of this case the Tribunal were entitled to hold on an application of Section 123 that the very large earnings as a self-employed person by an appellant employed for only one or two shifts a week were not within the terms of the section.
Lady Justice Butler-Sloss, Lord Justice Pill, The Lord Lloyd Of Berwick
[1998] EWCA Civ 1037
Employment Rights Act 1996 123
England and Wales
Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Leonard v Strathclyde Buses Ltd 1998
To receive a compensatory award, a claimant must provide proof of loss. Referring to Norton Tool, Lord Blofeld said: ‘The approach . . has, as we understand the position, governed the attitude of tribunals to compensation ever since. It is, in our . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.144516
The applicant wished to consider discrimination proceedings and applied for an order to disclose to him the application forms of the other canditates for the post for which his application had been rejected. He opposed editing of the forms by the chairman of the tribunal.
Held: The application was wrong. The tribunal members would have had access to the full documents.
[1998] EWCA Civ 996
England and Wales
Updated: 19 November 2022; Ref: scu.144475
Cook J
[2020] EWHC 842 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.650094
Master Sullivan
[2020] EWHC 838 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.650089
A ship’s engineer was given leave to go ashore for his own purposes. His ship was lying at a quay in a public harbour, which, however, was now controlled by the naval and military authorities, a pass being required for ingress to and egress from the harbour. Passes were only issued to persons having business at the harbour. On his way back the engineer fell into the harbour and was drowned while still some distance from the gangway to his ship.
Held (dis. the Lord Chancellor, rev. judgment of the First Division) that the accident was not one ‘arising out of and in the course of the employment.’
Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, Lord Atkinson, and Lord Parmoor
[1918] UKHL 185
England and Wales
Updated: 19 November 2022; Ref: scu.631467
Mr Justice Hildyard
[2015] EWHC 1300 (Ch)
England and Wales
Updated: 19 November 2022; Ref: scu.546882
His Honour Judge Stephen Davies
[2014] EWHC 3852 (QB), [2015] IRLR 226
England and Wales
Updated: 19 November 2022; Ref: scu.539350
Lang J
[2012] EWHC 3543 (QB), [2013] IRLR 185
England and Wales
Appeal from – Threlfall v ECD Insight Ltd and Another CA 29-Oct-2013
. .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.467147
Three Claimants bus companies sought injunctive relief to restrain the Defendant trade union, Unite, from inducing its relevant members to breach their contracts of employment with the Claimants by taking part in industrial action by way of discontinuous strike action
Mr Justice Supperstone
[2012] EWHC 1778 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.461759
HH Judge Anthony Thornton QC
[2011] EWHC 2086 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.444968
On the claimant taking over the company employing them, the several defendants had left to form their own investment business. The claimant said that they had acted improperly in encouraging clients to move with them, and alleged unlawful means conspiracy and breach of confidence, and cliamed losses of almost andpound;6 million.
Cox J
[2012] EWHC 224 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.451442
Cox J
[2010] EWHC 1168 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.416134
A strike out order was not a decision capable of review.
[1990] ICR 21
England and Wales
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. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.347418
It is inconsistent with the TUPE regulations to seek to use them to improve an employee’s terms and conditions.
Mummery LJ, Maurice Kay LJ, Wilson LJ
[2007] EWCA Civ 1065, [2008] ICR 341, [2008] IRLR 70
Transfer of Undertakings (Protection of Employment) Regulations 1981
England and Wales
Appeal from – Computershare Investor Services Plc v Jackson EAT 15-Dec-2006
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 . .
Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.260134
[2001] EWCA Civ 921
England and Wales
Updated: 18 November 2022; Ref: scu.201088
[2001] EWCA Civ 784, [2001] IRLR 685, [2002] Pens LR 277, [2001] Emp LR 882
England and Wales
Updated: 18 November 2022; Ref: scu.201087
[2001] EWCA Civ 573
England and Wales
Updated: 18 November 2022; Ref: scu.201010
Brooke LJ
[2001] EWCA Civ 522
England and Wales
Updated: 18 November 2022; Ref: scu.200959
A self-employed worker was entitled to claim for commission payments due as wages due to a worker, but the employer was entitled to make allowance for advance payments he had made.
Times 04-May-1998, [1998] IRLR 376, [1998] EWCA Civ 654
England and Wales
Appeal from – Blackstone Franks Investment Management Ltd v Robertson EAT 12-Nov-1996
Deductions from unpaid commissions are deductions from wages for Act. . .
Appealed to – Blackstone Franks Investment Management Ltd v Robertson EAT 12-Nov-1996
Deductions from unpaid commissions are deductions from wages for Act. . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.144132
The Claimant was a police officer who was transferred from her Response Team to the Crime Management Hub after she became pregnant. There had been a risk assessment indicating that she could safely remain with the Response Team if certain adjustments were made but the Devon and Cornwell Police had a general policy that police officers on restricted duties would be transferred to the Hub and the risk assessment was ignored. The ET found that the police had discriminated against her (a) on grounds of pregnancy under section 18 EqA 2010 and (b) indirectly on grounds of her sex under section 19, on the basis that women were more susceptible to enforced transfer under the policy because pregnancy ( as well as ill health) would lead to the application of the policy.
The police appealed saying (a) that the relevant treatment for the purpose of section 18 was removing her from danger and was not therefore unfavourable and (b) that any ‘particular disadvantage’ under section 19 was suffered by pregnant women and not women in general.
The appeal failed on both grounds:
(a) The treatment of which the Claimant complained was not that she had been removed from danger but that she had been transferred to the Hub which she did not want and which made her ill. The ET had found as facts that this treatment was unfavourable and that it was because she was pregnant.
(b) It was not necessary for the purpose of section 19 that all women suffered from the particular disadvantage if women as a group were more likely to be subject to an enforced transfer because of the PCP
[2020] UKEAT 0051 – 20 – 2509
England and Wales
Updated: 18 November 2022; Ref: scu.661653
Where there was a procedure agreed with the unions for selection for redundancy, the employer could be held to it, and be ordered to re-instate the employee pending completion of the litigation as to breach of the term.
Times 18-May-1998, Gazette 01-Apr-1998, [1998] IRLR 64
Scotland
Updated: 18 November 2022; Ref: scu.77789
When a one year fixed term employment contract was extended by a period of less than a year, but then not again renewed, there was no unfair dismissal, since the exemption for the original term applied also to any extension. There had been conflicting interpretations of the statutory provisions. S197 could not be construed on its own.
Lord Justice Evans Lord Justice Peter Gibson Lord Justice Thorpe
Times 24-Apr-1998, [1998] ICR 587, [1998] EWCA Civ 662, [1998] 2 All ER 845
Employment Rights Act 1996 197 95(1)(b)
England and Wales
Cited – BBC v Ioannou CA 1975
Mr I was employed on a 3-year contract determinable on notice. The contract was renewed by a 2-year extension, followed by a one-year extension, and a waiver clause was agreed for the latter extension. The statute required the fixed term to be of . .
Cited – Open University v Triesman EAT 1978
An employee was employed under a contract for a fixed term of 18 months. 3 months before that period expired she was offered and accepted further employment for 7 months subject to a waiver clause.
Held: The judgments in BBC -v- Ioannou were . .
Cited – Dixon v BBC CA 1978
The fact that a term of employment is determinable by notice does not preclude the term being a fixed term. . .
Cited – BP Oil Ltd v Richards EAT 12-Apr-1983
The tribunal considered how to treat a succession of fixed term contracts.
Held: The crucial question was whether one looks at the whole term of the original contract plus extensions as one contract or concentrates solely on the last . .
Cited – Mulrine v University of Ulster CANI 1993
An employee was employed under a contract of employment for 2 years with a waiver clause. 5 weeks before the end of that period the employer wrote to the employee, extending her contract by nearly 4 months and specifying that all other conditions of . .
Cited – Bhatt v Chelsea and Westminster Health Care Trust and Another EAT 9-Sep-1997
The tribunal must first decide if a renewal of a fixed term contract was an extension or a re-engagement before deciding if unfair dismissal was possible: ‘We accept the submission that a contract for a fixed term may be extended as to its term, . .
Cited – Housing Services Agency v Cragg EAT 11-Mar-1997
The employee had been employed for a fixed term of more than 2 years under a contract containing a waiver clause, and thereafter entered into contracts for 3 subsequent extensions of his employment, each for a term of less than a year and each . .
Cited – Hogg v Dover College EAT 1990
The claimant asserted unfair dismissal after his contract was changed to provide that his post as head of the history department would be part time. He had been ill, and the head teacher reduced his teaching periods. He accepted the change in . .
Appeal from – British Broadcasting Corporation v Kelly-Phillips EAT 25-Jun-1997
. .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.78612
(1) A litigant in person who had argued that a COT3 could not be relied upon because of misrepresentation and estoppel (and possibly also by way of interpretative construction) should have been allowed to refer to without prejudice material in support of those submissions.
Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44 [2011] 1 AC 662 and Unilever plc v The Procter and Gamble Co [2000] 1 WLR 2436 applied.
(2) A COT3 can be challenged on the same basis as any other agreement in common law or equity.
Industrious Ltd v Horizon Recruitment Ltd [2010] IRLR 204 and Greenfield v Robinson [1996] EAT/811/95 applied.
Patel v City of Wolverhampton College [2020] UKEAT/0013/20/RN, [2020] UKEAT 0013 – 20 – 1906 held to be per incuriam and not followed.
(3) ET decisions on a Preliminary Issue that there was no jurisdiction to hear the Claimant’s substantive claims were based on errors of law. It was wrong to find that the Claimant could not go behind the COT3 or rely on without prejudice or other evidence to show that it was not valid.
(4) As the Claimant was a litigant in person with no legal qualifications, particular care had to be taken to make sure that what she was saying was heard and understood and acted upon. Mensah v East Herefordshire NHS Trust [1998] IRLR 531 and Drysdale v Department of Transport [2014] EWCA Civ 1083 [2014] IRLR 892 applied.
(5) The Claimant’s submission that the COT3 should be set aside, or not enforced, by reason of misrepresentation, or that the Respondents were estopped from relying on it, or that it should be construed to exclude settlement of claims arising before the TUPE transfer, was not precluded by the involvement of a person holding himself out as a barrister (although disbarred) on her behalf.
Redgrave v Hurd (1881) 20 Ch D 1 and Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386 considered.
(6) Case remitted to a differently constituted ET.
Mr Justice Griffiths
[2020] UKEAT 0251 – 19 – 2611
England and Wales
Updated: 18 November 2022; Ref: scu.661661
Among other claims, the Claimant complained that he was required to drive a faulty vehicle back to base while another employee had a van sent to recover his vehicle which merely had a flat tyre. It was his contention that the reason for the difference in treatment was his race. The ET held, in brief that the Claimant’s vehicle was drivable but the other vehicle had four slashed tyres and could not be expected to be driven.
The appeal was allowed to proceed to a Full Hearing following an assertion at the Rule 3(10) hearing that there was no evidence as to four slashed tyres, which had merely been an assertion by the solicitor advocate appearing for the Respondent. It was also pointed out that there had been an admission by the Respondent to an assertion in the ET1 that the other vehicle merely had a flat tyre, and the ET erred in allowing the Respondent to run the ‘slashed tyres’ argument without seeking to amend its ET3.
The notes of the Employment Judge established, the EAT held, that there was an evidential basis for the ET’s finding that four tyres had been slashed. The issues before the ET had been set out at a Preliminary Hearing and refined at the outset of the final hearing. The ET did not err in permitting the evidence to be adduced without amendment: the key question for it, so far as this head of claim was concerned, was the reason for the difference in treatment.
[2020] UKEAT 0012 – 20 – 1808
England and Wales
Updated: 17 November 2022; Ref: scu.661651
EAT PRACTICE AND PROCEDURE – Time for appealing
Relying on out of date information on the EAT website the Claimant lodged his appeal one day late. Discretion was exercised as the delay was not his fault. His two other appeals were not subject to this error and were correctly found to be out of time and there was no exceptional reason to extend it.
McMullen QC J
[2012] UKEAT 0058 – 12 – 3010
England and Wales
Updated: 17 November 2022; Ref: scu.473024
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Employment Judge correctly decided the Claimant solicitor was not an employee of the firm, albeit a worker in it.
McMuen QC J
[2012] UKEAT 0537 – 11 – 3110
England and Wales
Updated: 17 November 2022; Ref: scu.473026
EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
In 1998 the Employment Judge heard and dismissed a claim brought by a former client of his. He did not know the connection at the hearing but did before the Judgment. The EAT upheld the Claimant’s appeal on the ground of appearance of bias. The Judge should not have heard the case or continued with it after actual knowledge.
In 2011 the same Judge heard and dismissed most of the Claimant’s new case, where he represented three others. He did not remember the connection. The Claimant did, but said nothing as he did not know he could apply to the Judge. When he saw how counsel for the Respondent did this in a subsequent hearing before a different Judge, in between the hearing and the reserved Judgment, he did not know he could at that stage seek recusal.
EAT held an informed observer would see a real possibility of bias. Although the connection was old, the Claimant was not merely a former client, but a litigant who had successfully challenged the Judge on bias.
He did not waive his right to complain. His evidence was accepted. Entire Judgment set aside and case sent for fresh hearing.
McMullen QC J
[2012] UKEAT 0303 – 12 – 1212
England and Wales
Updated: 17 November 2022; Ref: scu.473029
EAT TRANSFER OF UNDERTAKINGS – Consultation and other information
Employer facing insolvency contemplates transfer of both parts of his undertaking but eventually the liquidator transfers only one part, the other being closed down – Claimants, who are employed in the part which is closed down, are dismissed and bring proceedings for, inter alia, breach of the information and consultation obligations under regulation 13 of TUPE. Claim is against the transferee as well as the employer by reason of the joint liability provision under reg. 15 (9) – Claim upheld on the basis that the Claimants were ‘affected employees’ by reason of having been excluded from the eventual transfer notwithstanding the original intention that they would be included.
HELD, allowing the appeal, that the Claimants were not ‘affected employees’ because:
(1) As regards the transfer as it eventually proceeded, i.e. of the part of the business in which the Claimants were not employed, such indirect impact as that may have had on the part in which they were employed did not make them ‘affected employees’.
(2) As regards the earlier intended transfer of both parts of the business, no claim could be brought in respect of a transfer which had not in fact proceeded.
Underhill J
[2013] UKEAT 0224 – 12 – 2504, [2013] IRLR 605
England and Wales
Updated: 17 November 2022; Ref: scu.473019
EAT PRACTICE AND PROCEDURE – Costs – The Employment Tribunal made permissible findings about the Claimant’s conduct of the case and was entitled to award costs against him when he withdrew after consulting his counsel in the course of his cross-examination after 9 days. The now customary reasons challenge to the Employment Tribunal’s findings was unsustainable.
McMullen QC J
[2012] UKEAT 0240 – 12 – 2211
England and Wales
Updated: 17 November 2022; Ref: scu.473028
EAT Unfair Dismissal : Compensation – Contributory fault
PRACTICE AND PROCEDURE – Costs
A Tribunal found that the conduct of an employee, for which he was unfairly dismissed, was such that there should be no award either basic or compensatory. An appeal that this was wrong on the basis that a 100% deduction for contributory fault could only be made from a compensatory award where the conduct was solely causative of the dismissal was rejected, since there was no material to suggest that the unfairness (which was procedural) had causally contributed to the dismissal; as was an argument that the decision was perverse. An argument that despite the accepted approach since Devis v Atkins it was not open to a Tribunal completely to extinguish any basic award by reliance on contributory conduct was rejected: neither principle, nor case-law, nor statutory interpretation supported it. However, in the light that it will be a rare case in which conduct is so bad as to deprive a long-serving employee of any compensation at all, despite his employer having treated him unfairly, the Tribunal ought to have said what its reasons were for holding that it was just and equitable for compensation to be reduced to nil (observations of Mummery LJ in Moreland, and when giving leave in Perkin v St.George’s relied upon). Accordingly, the case would be remitted to the Tribunal for redetermination of this point.
A cross-appeal, arguing that since the Tribunal had determined on balance of probabilities that the claimant had lied about his conduct, it had therefore to be taken that he had advanced his tribunal claims unreasonably, and costs should follow, was rejected: there was no absolute principle to this effect, a Tribunal had a discretion even if unreasonable conduct were shown, and this tribunal had committed no error of law.
Langstaff P J
[2013] UKEAT 0253 – 12 – 2703
England and Wales
Updated: 17 November 2022; Ref: scu.473018
EAT Transfer of Undertakings : Transfer
On the issue of whether there had been a ‘relevant transfer’ for TUPE purposes, the Employment Tribunal (ET) preferred to the Respondent’s witness’s evidence that there had been no transfer. It failed to give any reasons for preferring that evidence to the other evidence in the case. Moreover, such an explanation was called for in the circumstances of the case by contradiction and inconsistency in that witness’s three witness statements. The ET gave no other reasons for holding that no transfer had taken place and thereby failed to make the findings of fact essential to the multi-factorial approach to transfers required by Cheesman.
Kuba QC Rec
[2013] UKEAT 0255 – 12 – 1403
England and Wales
Updated: 17 November 2022; Ref: scu.473016
EAT Jurisdictional Points : Extension of Time: Reasonably Practicable – Worker, employee or neither
There was no error in the Employment Tribunal’s finding that a domestic servant was jointly employed on a contract of employment by a husband and wife and liability for substantial compensation was joint and several. The Employment Tribunal could not be faulted on its assessment of what was reasonably practicable, and what is a reasonable time for presenting non-discrimination claims.
McMullen QC J
[2012] UKEAT 1424 – 11 – 0712
England and Wales
Updated: 17 November 2022; Ref: scu.473030