London Underground Limited v Noel: CA 29 Jun 1999

Where an employee is dismissed, his right to claim damages for unfair dismissal is not lost because of the making of an offer of re-employment. Because of this time continues to run for the lodging of a complaint, and if the re-engagement falls through for whatever reason, the original three month time limit is not disapplied, and the claim had expired.

Citations:

Times 07-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Civ 1712

Jurisdiction:

England and Wales

Employment

Updated: 21 January 2023; Ref: scu.146627

Allen and others v GMB: CA 16 Jul 2008

The claimants were members of the defendant trades union which settled their claims for sex discrimination against local authorities. They said that the union had entered into a settlement which still discriminated against them, and that therefore the union was itself guilty of indirect sex discrimination.
Held: The claimants’ appeal succeeded, and the matter was remitted to the tribunal. The union had given preference in its settlement to those in need of pay protection and to achieving equality in the future. It had failed to address properly the need to maximise the claimants’ proper interests in claiming arrears of pay. Some received only 25% of what they should have received and many received nothing. The tribunal found the union to have mis-sold the decision to its members and to have tried to manipulate them. That was not justified in an attempt to achieve its other and proper aims.

Judges:

Lord Justice Tuckey, Lady Justice Smith and Lord Justice Maurice Kay

Citations:

[2008] EWCA Civ 810, Times 01-Sep-2008, [2008] IRLR 690, [2008] ICR 1407

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 1(2)(b) 12(3), Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001 No 2660)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 December 2022; Ref: scu.270835

Johns v Solent SD Ltd: CA 12 Jun 2008

The court considered whether it was proper to issue a stay of proceedings to await a judgement in the EJ on a related issue.

Citations:

[2008] EWCA Civ 790, [2008] IRLR 820

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal FromJohns v Solent SD Ltd EAT 30-Oct-2007
EAT Practice and Procedure: Postponement or stay
Age Discrimination
Stay of proceedings where age discrimination is alleged. There is no basis for a valid claim in current UK law, but a case (Heyday) . .

Cited by:

CitedInterflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .
CitedInterflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 20 December 2022; Ref: scu.270809

Northern Ireland Certification Officer for Trade Unions and Employers Associations v Cunningham and others: CANI 10 Jan 2008

Question as to the proper interpretation and effect of provisions of the Industrial Relations (Northern Ireland) Order 1992 (‘the 1992 Order’). The two questions posed by the deputy resident magistrate are as follows: ‘(1) Was I correct in holding, on the facts admitted, proved and found by me, that the Northern Ireland Hotels federation was not at any relevant time an employers association within the meaning of the 1992 Order? (2) Was I correct in holding that none of the Respondents had any duty to comply with the provisions of Article 12B(3) or (4) of the 1992 Order?’

Citations:

[2008] NICA 2

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 20 December 2022; Ref: scu.263908

Lawal v Northern Spirit Limited: HL 19 Jun 2003

Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased. The rules recognised the need to separate counsel’s practice from the area in which he sat. The threshold is only a real possibility of unconscious bias. One starts by identifying the circumstances which are said to give rise to bias. Would a fair minded and informed observer, having considered the given facts, conclude that there was a real possibility that the tribunal was biased. Mr Lawal has succeeded on the issue of principle raised by the Recorder objection.
Lord Steyn said: ‘Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that ‘a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.’

Judges:

L Bingham of Cornhill, L. Millett, L. Nicholls of Birkenhead, L. Rodger of Earlsferry, L. Steyn

Citations:

Gazette 17-Jul-2003, [2003] UKHL 35, [2003] ICR 856, [2004] 1 All ER 187

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
ApprovedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedBelilos v Switzerland ECHR 29-Apr-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (validity of declaration); Violation of Art. 6-1; Costs and expenses award – domestic proceedings; Costs and expenses award – . .
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedWettstein v Switzerland ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses partial award – Convention proceedings; Costs and expenses partial award – national . .
CitedJohnson v Johnson 7-Sep-2000
(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See AlsoLawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See AlsoLawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
CitedLawal v Northern Spirit Ltd CA 30-Oct-2002
. .

Cited by:

Appealed toAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
CitedRegina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
CitedFeld, Lord Mayor and Citizens of the City of Westminster v London Borough of Barnet, Lord Mayor and Citizens of the City of Westminster CA 18-Oct-2004
The applicants sought housing as homeless people. After the refusal of their applications, they sought a review, and in due course a second review. That second review was conducted by the same officer who had conducted the first. The appellant . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedMeerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
CitedScrivens v Ethical Standards Officer Admn 11-Apr-2005
The councillor appealed an adjudication that he had failed adequately to declare an interest at a meeting of the council. The officer thought the duty to withdraw was entirely objective, the applicant that it was a matter for his honest judgment. At . .
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedMorrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
CitedPort Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedA, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
CitedMousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
CitedJL, Regina (On the Application of) v Secretary Of State for Justice Admn 7-Oct-2009
. .
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights, Legal Professions, Natural Justice

Updated: 20 December 2022; Ref: scu.183695

O’Dea v ISC Chemicals Ltd: CA 4 Aug 1995

Where the performance of union duties stopped a worker from doing the job he was employed for properly, a redundancy selection was possible. Here there was no redundancy comparator for a shop steward spending half his time on union activities. The court cautioned against use of phrases about procedural unfairness: ‘In my judgment, in a case where the reason or principal reason for dismissal is redundancy but the employer acted unreasonably in some particular respect in the process of selecting the applicant for redundancy so that the dismissal was rendered unfair, it is for the industrial tribunal to decide what it is just and equitable in all the circumstances to award the applicant, having regard to the loss sustained by the applicant in so far as that loss is attributable to action by the employer (see what is now ERA 1996 section 123(1) set out below at paragraph 66). To a case such as the present, where the industrial tribunal are satisfied that the particular defect in what the employer did only deprived the applicant of a chance that he would have been retained in the absence of such a defect, the applicability of the dictum, already cited, of Browne-Wilkinson J and its good sense seem to me obvious. I do not regard it as helpful to characterise the defect as procedural or substantive nor in my view should the industrial tribunal be expected to do so, though in fact in the present case the industrial did repeatedly describe the defect as procedural. The fact of the matter is that Mr. O’Dea lost only a one in five chance of being retained, and I can see no arguable case that he should have been compensated on the same footing as if he was bound to have been retained but for his trade union activitie.s’

Judges:

Peter Gibson LJ

Citations:

Times 04-Aug-1995, Independent 24-Aug-1995, [1995] IRLR 599, [1996] ICR 222

Statutes:

Employment Protection (Consolidation) Act 1978 58 59

Jurisdiction:

England and Wales

Citing:

ApprovedSillifant v Powell Duffryn Timber Ltd CA 1983
The court explained the principle on ‘British Labour Pump’ as follows: ‘even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure . .
Appeal fromO’Dea v ISC Chemicals Ltd (T/A Rhone-Poulenc Chemicals) EAT 14-Feb-1994
. .

Cited by:

CitedLambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
CitedAlexander 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 . .
CitedSoftware 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2022; Ref: scu.84424

Crosville Wales Ltd v Tracey: CA 4 Aug 1995

There should be no reduction in an award of damages for unfair dismissal simply for participation in strike where the employee had not been not re-instated after the industrial action.

Citations:

Times 04-Aug-1995, Independent 29-Aug-1995

Statutes:

Employment Protection (Consolidation) Act 1978 62 74(6)

Jurisdiction:

England and Wales

Employment, Damages

Updated: 20 December 2022; Ref: scu.79681

Avuru v Favernmead Ltd and Another (Redundancy and Jurisdictional : Time Points): EAT 29 May 2020

Redundancy and Jurisdictional/Time Points
In this appeal the EAT considered that where the EJ had made findings that indicated that the Claimant’s effective date of termination (Employment Rights Act 1996 section 97(1)(b) and 145(2)) could be established by reference to objective factors and that the EJ had held that by that date the Claimant ought reasonably to have known that her employment had been terminated; it was not possible for the EJ to fix the effective date of termination at a later date on the basis of the Claimant’s subjective belief that her employment continued especially where there were unresolved conflicts of testimony as to the basis upon which the Claimant held that belief. The EAT further held that the letter that was relied on by the Claimant as constituting a claim for payment of redundancy money could not reasonably bear the meaning attributed to it and that properly understood it was a letter of enquiry written on her behalf by her MP as opposed to a claim for payment under s. 164 of the Employment Rights Act 1996.

Citations:

[2020] UKEAT 0312 – 19 – 2905

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 December 2022; Ref: scu.661647

Tesco Stores Ltd v S (Unfair Dismissal): EAT 1 Apr 2021

UNFAIR DISMISSAL; Reason for dismissal; band of reasonable responses; investigation.
In a claim of unfair dismissal, the reason for dismissal relied upon by the employer in terms of section 98 of the Employment Rights Act, 1996 ‘(ERA’) was ‘conduct’. The evidence suggested that the employer had considered a range of matters all of which related to conduct of the employee. Only some of those matters were ultimately mentioned in the letter to the employee which bore to confirm the reason for his dismissal. In these circumstances, it was incumbent upon the Tribunal to make clear and unequivocal findings in fact about precisely what conduct of the employee caused the employer to dismiss. Within his Reasons, the Employment Judge recorded his conclusion that the Appellant genuinely held a belief that the Claimant ‘was guilty of the conduct for which he was dismissed’. Nowhere in his findings in fact, however, did he identify what that conduct was. In the absence of such a finding, the further conclusion that the employer did not have a reasonable basis for holding that belief could not stand.
In any event, and whatever was the reason for the dismissal, the Employment Judge had, in a number of respects, substituted his own view as to what a reasonable inquiry demanded. The appeal was allowed, and the case remitted to a different Tribunal for re-hearing.
Observed: To the extent that Scottish and Southern Energy plc v. Ness UKEATS/0043/10 held that, in a case of dismissal for conduct, there was no requirement on an employer to investigate wholly speculative matters advanced by an employee as possible mitigation, that was correct. If, however, the decision in Ness was intended to suggest that it would never be unreasonable in terms of section 98(4) ERA for an employer to fail to investigate mitigation, such an approach would be inconsistent with what was said in Sainsbury’s Supermarket Limited v. Hitt [2003] ICR 111.

Citations:

[2021] UKEAT 0040 – 19 – 0104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 December 2022; Ref: scu.661953

‘Prince George’–(Shaw): 2 May 1837

An agreement for wages, as purser, having been entered into by a master and sole owner, the purser, prior to the ship’s sailing, signed the usual articles, but in which there was no rate of wages specified for him. After the completion of the outward voyage he ceased, by the master’s orders, to do duty as purser, but was not regularly suspended for neglect of duty, the wages pronounced for, and a mortgagee, who opposed them, condemned in costs.
Quaere, whether though the owner be bankrupt, and the ship has been sold, and the proceeds are Insufficient to pay mortgagees, a principal mortgagee has sufficient interest to oppose a mariner’s claim for wages?

Citations:

[1837] EngR 688, (1837) 3 Hag Adm 376, (1837) 166 ER 445

Links:

Commonlii

Jurisdiction:

England and Wales

Transport, Employment, Insolvency

Updated: 20 December 2022; Ref: scu.313805

E v X and Another (Juridictional : Time Points and Practice and Procedure): EAT 10 Dec 2020

Two appeals against the order of an employment tribunal which had revisited the order of an earlier tribunal of equivalent jurisdiction, in the absence of a material change in circumstances, or the original order being based on a material omission or mistreatment, or some other substantial reason necessitating the interference, would be allowed. The orders of the original employment tribunal would be restored and a preliminary hearing would take place before a fresh employment tribunal.
Earlier authorities relating to applications to strike out, at a preliminary hearing, claims which assert a continuing act but are said by the respondent to be time-barred, were reviewed and qualified.

Citations:

[2020] UKEAT 20 – 0079 – 20 –

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 December 2022; Ref: scu.661670

Evergreen Timber Frames Ltd v Harrington (Contract of Employment): EAT 10 Mar 2021

The Employment Tribunal erred in concluding that the parties entered into a contractually binding agreement by which ownership of a car would transfer from the Respondent to the Claimant upon the termination of his employment. Although the Employment Tribunal did not err in deciding that a proposal described as a ‘gift’ was an offer, one of the ingredients of a contract, it erred in concluding that the Claimant could accept part of the Respondent’s offer insofar as it related to the car while seeking to improve upon other parts of the offer. The claim was remitted to a different Employment Tribunal to consider the Claimant’s contention that the parties entered into an oral agreement for the transfer of the car at a meeting on 30 May 2018.

Citations:

[2021] UKEAT 20 – 0072 – 20 –

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 December 2022; Ref: scu.661700

Ijomah v Nottinghamshire Healthcare NHS Foundation Trust (Practice and Procedure – Unless Orders): EAT 12 Jun 2020

In a case involving multiple claims of protected disclosure detriment, and a claim of unfair dismissal by reason of protected disclosures, the Employment Tribunal erred in its approach to whether there had been material non-compliance with an Unless Order that was attached to an earlier Order requiring further particulars of the claims. The EAT made observations on the particular perils and pitfalls of making, and construing, an Unless Order that is parasitic on an earlier Order, and that relates to the provision of particulars.
There were also breach of contract claims. The Tribunal correctly concluded that there had been material non-compliance in relation to all of those claims, and that they all stood struck out.

Citations:

[2020] UKEAT 0289 – 19 – 1206

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 December 2022; Ref: scu.652142

Department of Work and Pensions v Boyers (Disability Discrimination): EAT 24 Jun 2020

The Claimant, who was disabled within the meaning of the Equality Act 2010, was dismissed by the Respondent whilst on sickness absence. An Employment Tribunal found that the Claimant had been unfairly dismissed, contrary to the provisions of the Employment Rights Act 1996. The Tribunal also upheld the Claimant’s claim that her dismissal constituted disability discrimination, contrary to section 15 of the Equality Act. The Respondent appealed against the finding that the dismissal of the Claimant was unlawful discrimination, on the basis that the Employment Tribunal had erred in law in rejecting the Respondent’s justification defence.
The Employment Tribunal had accepted that the dismissal pursued two legitimate aims but held that it was not justified because it was not a proportionate means of achieving either aim. The Respondent contended that in considering the issue of justification the Tribunal had erred in law by focusing on criticism of the Respondent’s decision-making process rather than conducting a balancing exercise between the needs of the employer, as represented by the legitimate aims the Tribunal had accepted were being pursued, and the discriminatory effect on the employee.
The Employment Appeal Tribunal upheld the Respondent’s appeal and remitted the claim under section 15 of the Equality Act to the same Employment Tribunal for redetermination.

Citations:

[2020] UKEAT 0282 – 19 – 2406

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 December 2022; Ref: scu.652140

Paul v East Surrey District Health Authority: CA 1995

Only in exceptional cases will different treatment of employees of itself amount to an unfairness.

Citations:

[1995] IRLR 305

Jurisdiction:

England and Wales

Citing:

Appeal fromEast Surrey District Health Authority v Paul EAT 4-May-1993
. .

Cited by:

CitedAssociated 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 . .
CitedEpstein v Royal Borough of Windsor and Maidenhead EAT 15-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Dismissal by Employment Tribunal of Appellant lifeguard’s claim for unfair dismissal challenged, because the Tribunal is said to have erred in not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 December 2022; Ref: scu.276828

Lefebvre v HOJ Industries Ltd: 1992

All contracts of employment are, as a matter of law, subject to an implied term that they are terminable on reasonable notice, and such a term can be displaced only by clear words.

Citations:

[1992] 1 SCR 831

Jurisdiction:

England and Wales

Cited by:

CitedReda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 December 2022; Ref: scu.220482

Dafiaghor-Olomu v Community Integrated Care (Practice and Procedure): EAT 15 Jan 2021

In this case the Claimant lodged a Notice of Appeal that covered both an original judgement and a reconsideration judgement. The Notice was refused at sift insofar as it incorporated grounds of appeal arising from the reconsideration judgement on the basis that it was incompetent to appeal two orders arising from separate hearings in a single Notice of Appeal. On learning of the sift judge’s decision the Appellant lodged a new Notice of Appeal covering the grounds of appeal she wished to state against the reconsideration judgement. It was rejected by the Registrar as out of time. The Appellant submitted that the Registrar should not have rejected the second Notice of Appeal. Held that provided the Notice of Appeal made it clear that the Appellant sought to appeal the original judgement and the reconsideration judgement and both appeals were lodged within the time limits set by the Rules, the Notice of Appeal was competent to bring under appeal both the original judgement and the reconsideration judgement. Held further that had it been necessary to consider the matter, an extension of time would have been granted to permit the second Notice of Appeal to be received.

Citations:

[2021] UKEAT 00036 – 18 – 1501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661682

Klukowska v Bridge of Weir Leather Company Ltd (Practice and Procedure): EAT 10 Feb 2021

Practice and Procedure
In this case the Tribunal dismissed a claim because of non-compliance with an ‘unless’ order. The Claimant appealed arguing that she had complied with the order. Held that the Tribunal’s judgement failed to explain why the specification supplied by the Claimant was inadequate. In any event the level of detail could not be said to be materially non-compliant. While more detail could have been given, the specification provided was sufficient to enable the Respondent to prepare their defence. It was important that a realistic approach should be taken to the provision of names, dates and witnesses by a party who was unlikely to have ready access to the relevant information. Documents supplied by parties in compliance with ‘unless’ orders should not be treated as a specie of written pleading or subjected to minute scrutiny; and appeal allowed.

Citations:

[2021] UKEAT 0038 – 18 – 1002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661695

Iqra Community Primary School v Mansur (Whistleblowing : Protected Disclosure): EAT 5 Nov 2020

An Employment Tribunal erred by permitting the Claimant to amend her claim to add new allegations of whistleblowing detriment and by listing a final hearing without notice to the Respondent, in a case where the Respondent had made no response to the claim. The amendment decision was made without sufficient consideration of the guidance in Selkent Bus Co Ltd v Moore [1996] ICR 836. Rule 21 (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required the Respondent to be given notice of the further hearing.

Citations:

[2020] UKEAT 0116 – 20 – 0511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661662

Gordon v J and D Pierce (Contracts) Ltd (Contract of Employment : Unfair Dismissal): EAT 12 Jan 2021

The employee complained that he had been constructively dismissed. The Tribunal held that applying the test in Malik v BCCI the implied obligation of trust and confidence had not been breached. While the Respondents had behaved badly in some ways not all the causes of breakdown were to be attributed to them and the employee was to some degree a contributor to the breakdown. The claimant submitted that it was striking that the Tribunal largely referred to the test in Malik as necessitating destruction of the implied obligation. In fact it was sufficient if the relationship had been seriously damaged. Held that the Tribunal’s judgement did not suggest that the wrong test had been applied. It had recited the full test at one point in the Judgement. The likely explanation for the repeated reference to the destruction of the obligation rather than to serious damage, was that the Tribunal was abbreviating the test for convenience. When the evidence was considered, and the Tribunal’s reasoning examined the Tribunal’s conclusion was consistent with the correct test having been applied. Held further that by engaging in a grievance process available under the contract of employment the Claimant did not affirm the contract. Held further that the Tribunal had erred in law by failing to determine whether the hearing was to be restricted to liability as opposed to liability and quantum. Had that been the sole issue in dispute the case would have been remitted back so that the Claimant had an opportunity to lead evidence relevant to remedy.

Citations:

[2021] UKEAT 0010 – 20 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661683

Clark v Harney Westwood and Riegels (A Firm) and Others (Contract of Employment – Unlawful Deduction From Wages): EAT 21 Dec 2020

The Claimant was employed under a contract with a Cayman Islands firm, HWR. The Contract stated that it was governed by Cayman Islands law and subject to the jurisdiction of the Cayman Islands Courts. In January 2018, she was dismissed with a payment in lieu. She contended that the notice failed to comply with Cayman Islands Labour Law and was ineffective to terminate her contract. Three of the partners in the firm resided in the UK and the Claimant issued proceedings here. By the time she lodged her claim in the Tribunal, more than three months had elapsed since the payment in lieu. She also failed to obtain an Early Conciliation Certificate before lodging her claim. The Tribunal found that, notwithstanding the terms of her contract, she was employed by another Caymans entity, HG. It also held that there was no territorial jurisdiction to consider the claim, the Caymans being the proper forum, that there had been a failure to comply with EC requirements and that the claim was out of time. The claim was dismissed for want of jurisdiction. In coming to its conclusions the Tribunal rejected the Claimant’s claim that certain correspondence was without prejudice.
The Claimant appealed against the findings as to the identity of the employer, EC compliance, time limits, territorial jurisdiction and without prejudice privilege, amongst other matters.
Held, allowing the appeal in part, that the Tribunal had erred in concluding that HG was the employer. The written material was clear that HWR was the employer and everything in the parties’ relationship thereafter was consistent with that. On a proper application of the principles in Autoclenz, the only conclusion was that HWR was the employer. It followed that the Claimant was entitled, pursuant to Brussels Recast, to issue proceedings against those of the partners in HWR domiciled in the UK. Accordingly, the Tribunal had territorial jurisdiction over the claim. The Tribunal had also erred in failing to treat the correspondence as covered by without prejudice privilege in that there was no unambiguous impropriety here.
However, the Tribunal’s conclusions as to EC and the failure to comply with time limits were correct. Those jurisdictional hurdles had not been overcome and so the case remains dismissed for want of jurisdiction, notwithstanding the EAT’s findings on other matters.

Citations:

[2020] UKEAT 0018 – 20 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661668

Cumming v British Airways Plc: EAT 22 Jan 2021

The Claimant was a female member of British Airways (BA’s) Eurofleet aircrew. BA had a policy (accepted as being a PCP) that members of crew who took parental leave under the Maternity and Parental Leave etc Regulations 1999 would have one paid rest day removed for each three days’ parental leave taken in any monthly roster. She claimed that this policy involved indirect discrimination on grounds of sex because a higher proportion of women took parental leave than men and that the policy therefore put women at a ‘particular disadvantage’. It was common ground that the appropriate ‘pool’ for comparison was all crew members (both male and female) who had childcare responsibilities. The Employment Tribunal (ET) rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). This was an error of law since not all crew members with childcare responsibilities would necessarily take parental leave and the proper comparison was between the impact of the policy on women with childcare responsibilities and the impact on men with childcare responsibilities. The Claimant’s appeal was allowed.
BA cross-appealed on the basis that the ET was wrong to find that the policy involved any ‘disadvantage’ at all. The ET had decided in effect that it was self-evident that this was so but did not consider BA’s arguments that it did not represent a ‘disadvantage’ but was in effect a function of the rostering system. BA’s arguments were worthy of consideration and the ET therefore made an error of law in failing to consider them; BA’s cross-appeal was therefore allowed.
The ‘particular disadvantage’ and ‘disadvantage’ issues were remitted to a fresh ET to be considered again on the same evidence along with the issue of justification which remained outstanding.

Citations:

[2021] UKEAT 0337 – 19 – 2201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661681

Crew Employment Services Camelot v Gould (Practice and Procedure): EAT 15 Jan 2021

The Claimant in the Employment Tribunal, a police officer serving with the Respondent Force, made a number of subject access requests to the Respondent’s Data Access Unit (DAU). One of these, made in 2017, (SAR1) was for all emails sent within the Force ‘with a connection to me’ between 2002 and 2017. The Respondent was aware that he considered that he had been the victim of unlawful discrimination, and intended to (and did) bring Employment Tribunal claims.
SAR 1 was referred by the DAU to the Anti-Corruption Unit (ACU), which was the body which kept an archive of all emails sent within the Force. Following an initial response from the ACU to the DAU, the Claimant was informed that his request was too wide, and that he needed to identify the names of senders and recipients that he wanted searched. The DAU was told by the ACU that its software at the time did not enable an automated search to be conducted for any email mentioning the Claimant, regardless of who sent or received it. In January 2018 the Claimant was given access to the emails that had been provided to the DAU by the ACU in November 2017. The Tribunal accepted that, to comply with GDPR from May 2018, the ACU upgraded its software, which improved its automated email search capabilities. Thereafter, following further correspondence about his request, a further batch of emails was provided to the Claimant in October 2018.
The Tribunal, by a majority, found that the Claimant had been victimised, in three respects, by the conduct of the Data Access Manager, referred to as Mr D, in connection with SAR 1. The premise of all these findings was the majority’s conclusion that the ACU in fact had the capability to find the further batch of emails provided in October 2018, when it first responded to SAR1 in November 2017; that the limitations of the ACU’s software prior to the GDPR upgrade did not truly explain why that second batch of emails had not been disclosed with the first batch; and that Mr D knew this to be the case. This conclusion was relied upon by the majority to support the conclusion that Mr D’s impugned conduct was reasonably viewed by the Claimant as detrimental treatment; and that the burden shifted to the Respondent to show that such conduct was not because of the Claimant’s protected acts; and that, as Mr D had not been called as a witness, the Respondent had not discharged that burden, so that findings of victimisation followed.
On the Respondent’s appeal, it was held:
(1) The majority did not have a proper basis, on the evidence before the Tribunal, and facts found, to conclude that the explanation given, for why the ACU was not able to retrieve more emails than were produced, prior to the software upgrade, was not true. The majority rested their conclusion on their understanding of what the ACU existed to do, but the facts found about that, whether generally or in relation to the email archive, did not properly support such an inference. The majority were also wrong to draw an adverse inference from the failure of the Respondent to call a witness from the ACU (in addition to one from the DAU) when the pleaded victimisation claims did not identify that the conduct of the ACU in relation to SAR1 was specifically being criticised. The finding that the explanation given by the ACU was not true was therefore perverse. As it was conceded by the Claimant that the findings of detrimental treatment all rested on that finding (and the inference that Mr D knew that the ACU could have retrieved the October emails at the outset), those findings of detrimental treatment could not stand.
(2) In any event, the matters referred to by the majority as supporting a shifting of the burden of proof could not, separately or cumulatively, properly support the shifting of the burden. In addition, in considering whether the burden shifted in relation to Mr D’s impugned conduct, the majority should have considered the picture painted by all of the Tribunal’s relevant findings regarding his conduct, and his interactions with the Claimant, in relation to SAR1. Consideration of the whole picture reinforced the conclusion that there was no proper basis for the majority’s finding that the burden of proof shifted to the Respondent.
The appeal was accordingly allowed.

Citations:

[2021] UKEAT 0330 – 19 – 1501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661680

Wheatstone v Blakeney News Food and Wine Ltd and Others (Disability Discrimination): EAT 11 Feb 2020

An Employment Tribunal was entitled to find, on the medical evidence before it, that the admitted disability, namely epilepsy, was not the reason for the Appellant’s absence from work. Consequently, its finding that the Respondent’s unfavourable treatment of her arising from the that absence was not related to the disability was not an error of law.

Citations:

[2020] UKEAT 0287 – 19 – 1102

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652139

Pranczk v Hampshire County Council: EAT 12 Jun 2020

The Claimant in the Employment Tribunal, who was a litigant in person, presented a claim form which, it was not disputed, raised claims for wages and in respect of loss of annual leave entitlement.
The Claimant did not attend the full merits hearing. The Tribunal dismissed her claims on the basis that the wages had been paid, and carry-over of the annual leave had been granted. It determined that there were no other claims raised by the claim form. It awarded the Respondent pounds 750 costs on the basis that the Claimant had unreasonably continued with the litigation after the wages and leave claims had been satisfied.
The Claimant appealed (a) on the basis that the Tribunal erred by not identifying that the claim form contained a claim of disability discrimination and/or victimisation; and (b) in respect of the award of costs.
Held:
(1) The Tribunal had not erred in not identifying any claim of disability discrimination or victimisation in the claim form. On a fair reading of the claim form, it did not contain any such complaint.
(2) The Tribunal acted unfairly in making an award of costs in the Claimant’s absence. It also in any event erred in failing to consider whether to take into account her means, or to explain whether, or how, it had done so. The costs award was quashed.

Citations:

[2020] UKEAT 0272 – 19 – 1206

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.652144

Tough v Revenue and Customs (Practice and Procedure – Strike Out): EAT 14 Feb 2020

The Claimant’s claims of direct disability discrimination and harassment had been struck out after a Preliminary Hearing at which the Employment Tribunal (‘ET’) had determined he was not a disabled person for the purposes of the Equality Act 2010. The Claimant appealed, complaining that the ET had erred: (1) in failing to make findings as to perceived disability discrimination and harassment; and (2) in striking out claims of direct disability discrimination, and harassment related to disability, purely on the basis that it had found that the Claimant was not disabled.
Held: dismissing the appeal
It was a moot point whether there could be harassment related to a perceived disability but that was assumed in the Claimant’s favour for the purposes of the appeal. Adopting that course and further allowing that, unless a complainant has expressly limited their claim to a particular form of direct discrimination or harassment that requires that they first establish that they fall within the definition of a disabled person of the purposes of the EqA, it may not be possible to do justice to the case without properly exploring the employer’s reasoning, it was apparent that the Claimant had so limited his claim in this case. Even if that was unclear from his ET1 (and allowing that the Claimant was acting in person), at an earlier case management stage, he had accepted the question whether he was a disabled person should be determined as a preliminary issue in his case. At the subsequent Preliminary Hearing, listed to consider that question, the Claimant further accepted that a finding that he was not disabled would be determinative of his claims. The ET did not err in determining the case before it.

Citations:

[2020] UKEAT 0255 – 19 – 1402

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652138

Asda Stores Ltd v Raymond: EAT 13 Dec 2018

The Claimant was dismissed for urinating in a loading yard, the Respondent employer alleging that this was a breach of (unspecified) Health and Safety Regulations and serious and wilful neglect of company property. The Tribunal found that the dismissal was unfair and that the dismissal arose from the Claimant’s disability. A subsequent Judgment in relation to Remedy ordered re-instatement. The Respondent appealed both Decisions.
Held:
(1) The Tribunal was entitled to conclude that the evidence, including the CCTV evidence, did not establish that the Claimant had urinated on the pallets and so the arguments on perversity and substitution mindset failed.
(2) The Respondent’s fall-back position of objective justification for section 15 discrimination had been addressed adequately by the Tribunal in the Remedy Judgment, the matter having been initially overlooked. The decision on this was not perverse.
(3) The Tribunal had not erred in its approach to re-instatement. It had considered the particular circumstances of the Claimant and found that the operative cause of the dismissal was his disability but that he considered trust and confidence could be restored. The Respondent’s contention that trust and confidence had broken down was not rationally based.
Appeal dismissed.

Citations:

[2018] UKEAT 0268 – 17 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.631856

Silape v Cambridge University Hospitals NHS Foundation Trust: EAT 25 Oct 2017

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction reasons Burns-Barke
In striking out claims of discrimination, the Tribunal failed to apply the relevant principles as summarised recently in Mechkarov v Citibank NV [2016] ICR 1121, failed to take the Claimant’s case at its highest and failed to give adequate reasons for its decision.

Citations:

[2017] UKEAT 0285 – 16 – 2510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.601910

Harper and Another v Hopkins: EAT 6 Aug 2009

EAT (Appeal From Order : Out of Time) Appellate jurisdiction reasons Burns-Barke – The lodging of a Notice of Appeal out of time was a conscious decision by a Respondent hotelier to leave it until after the New Year. His intervening hospitalisation did not overcome this original decision. Anyway it did not explain why his partner did not do so. There were no grounds for the exercise of discretion.

Judges:

McMullen QC HHJ

Citations:

[2009] UKEAT 0145 – 09 – 0608

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.592681

Koenig v The Mind Gym Ltd: EAT 8 Mar 2013

EAT Unfair Dismissal : Exclusions Including Worker/Jurisdiction
The question was the date on which the Claimant began work for the Respondent, for the purpose of calculating sufficient service to bring a claim for unfair dismissal. She had been engaged from 1 October, and dismissed one day short of a year’s service. She argued that her attendance at the invitation of R at a meeting of one of its employee’s with a client, who was due to become a client of C’s once employed, for some hours on the 30 September, should have been regarded by an Employment Tribunal as being work under the contract.
Held: that the question was not whether C worked for her future employer, but whether that was work under the contract of employment which had been entered into. On the facts, the ET was entitled to hold it was not. Accordingly, C’s appeal failed.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0201 – 12 – 0803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.495206

Richards v Manpower Services Ltd: EAT 3 Apr 2013

EAT Practice and Procedure : Striking-Out/Dismissal – Unless Order – non-compliance – effect
The Respondent had failed to comply with an ‘unless order’ and had made no application in any form for relief against sanction. The Employment Judge declined to make an order striking out the Respondent’s responses: he ought to have made an order in effect declaring that the effect of the ‘unless order’ was that the responses were struck out automatically: Scottish Ambulance Service v Laing [2012] UKEAT/0038/12. The Employment Judge’s decision could not be read as granting relief against sanction, but it was still open to the Respondent to apply to the Employment Tribunal for relief against sanction.

Judges:

Richardson J

Citations:

[2013] UKEAT 0014 – 13 – 0304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.495208

Secretary of State for Business Innovation and Skills v Mcdonagh and Others: EAT 14 Feb 2013

EAT Rights On Insolvency
Two separate Employment Tribunals decided that Claimants who had been employed (without knowing it) by a company which had entered a CVA were entitled to claim arrears of pay and holiday pay from the National Insurance Fund when subsequently the company went into liquidation. In each case, the reasoning was flawed: the first Judge introduced concepts which were not present in Part XII of the ERA 96; the second relied on a view of the meaning of the EC Directive 2008/94 which was shown by the Appellant to be mistaken. The parties agreed that unless modified by reference to the Directive the domestic legislation precluded the claims; the EAT held that the Directive did not require any such modification, nor any different interpretation.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0287 – 12 – 1402

Links:

Bailii

Statutes:

EC Directive 2008/94, Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.495204

Lawal v Birmingham and Solihull Mental Health NHS Foundation Trust: EAT 11 Apr 2013

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
Contract of employment terminated on expiry of Claimant’s notice of resignation. Subsequent purported dismissal by Respondent following a disciplinary process after employment ended a nullity. ET1 presented out of time. Employment Judge entitled to refuse application to extend time. Appeal dismissed. Claims were time-barred.

Judges:

Peter Clark J

Citations:

[2013] UKEAT 0592 – 12 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.495207

Secretary of State for Business Innovation and Skills v Pengelly and Another: EAT 14 Feb 2013

EAT Rights On Insolvency – Two separate Employment Tribunals decided that Claimants who had been employed (without knowing it) by a company which had entered a CVA were entitled to claim arrears of pay and holiday pay from the National Insurance Fund when subsequently the company went into liquidation. In each case, the reasoning was flawed: the first Judge introduced concepts which were not present in Part XII of the ERA 96; the second relied on a view of the meaning of the EC Directive 2008/94 which was shown by the Appellant to be mistaken. The parties agreed that unless modified by reference to the Directive the domestic legislation precluded the claims; the EAT held that the Directive did not require any such modification, nor any different interpretation.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0312 – 12 – 1402

Links:

Bailii

Statutes:

EC Directive 2008/94, Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment, Insolvency

Updated: 09 December 2022; Ref: scu.495205

Dooley v Union of Construction Allied Trades and Technicians: EAT 3 May 2013

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – – Compensation – Polkey deduction – Contributory fault
The Claimant was a Union official dismissed for alleged misconduct – The Tribunal found the dismissal unfair on a mixture of substantive and procedural grounds and because of the substantive grounds directed no ‘Polkey discount’; but it did make a 50% reduction for contributory conduct.
HELD: that the Tribunal was entitled to find the dismissal unfair, but only on the procedural grounds; that accordingly a Polkey discount should have been considered and that the case should be remitted for that purpose and also to re-consider the issue of contributory conduct, since the amount of the former might affect the amount of the latter – One issue on remedy also remitted – Discussion of fairness of decision to dismiss taken in absence of two members of disciplinary panel.

Judges:

Underhill J

Citations:

[2013] UKEAT 0088 – 12 – 0305

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.495210

The United States of America v Nolan: CA 4 Feb 2014

The employee was made redundant from working at a US watercraft repair base. She complained that on the base closing the appellant had failed to consult with her as employee representative. The appellant denied that obligation. After a reference to the ECJ, the court now considered a new issue.

Judges:

Moore-Bick, Rimer, Underhill LJJ

Citations:

[2014] EWCA Civ 71, [2014] WLR(D) 46, [2014] ICR 685, [2014] IRLR 302

Links:

Bailii, WLRD

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 189 273, Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995

Jurisdiction:

England and Wales

Citing:

At EATUnited States of America v Nolan EAT 15-May-2009
EAT REDUNDANCY: Collective consultation and information / Protective award
An Employment Tribunal held that the USA was in breach of Section 188 of the Trade Union and Labour Relations (Consolidation) Act . .
Application for leave (1)United States of America v Nolan CA 9-Nov-2010
The claimant had sought a protective award under the 1992. She had been a civilian employee at a base operated by the appellant which it closed. She sought to sue as an employee representative, saying that the appellant had failed to consult its . .
CitedCommission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
At ECJUnited States of America v Nolan ECJ 18-Oct-2012
Reference for a preliminary ruling – Directive 98/59/EC – Protection of workers – Collective redundancies – Scope – Closure of an American military base – Information and consultation of workers – Time at which the consultation obligation arises – . .
At SCThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.

Cited by:

Appeal fromThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 09 December 2022; Ref: scu.521053

Tariquez-Zaman v London Deanery of Post Graduate Medical and Dental Education: CA 6 Nov 2008

Renewed application for leave to appeal against decision of the EAT.

Judges:

Wall LJ

Citations:

[2008] EWCA Civ 1226

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.277567

Morison v Moat: 1852

Affirmed

Citations:

(1852) 21 LJ Ch (NS) 248

Jurisdiction:

England and Wales

Citing:

Appeal fromMorison v Moat 20-Aug-1851
A servant, Moat, sought to use a secret formula of his employer’s. The plaintiff requested an injunction to restrain use of the formula.
Held: The Vice Chancellor reiterated the principles, as to which he said there was ‘no doubt’, adding: . .

Cited by:

CitedLord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Lists of cited by and citing cases may be incomplete.

Employment, Information

Updated: 09 December 2022; Ref: scu.270394

Brigden v American Express Bank Ltd: 2000

A clause providing that the employer could dismiss an employee in the first two years of employment without implementing the disciplinary procedure was not void under the 1977 Act. Section 3 extended to contracts of employment and although the meaning was ‘artificial’, an employee dealt ‘as a consumer’ with his employer. However the claim failed as the clause in question did not come within clause 3 (2) of the 1977 Act, not being a contract term excluding or restricting liability of the employer in respect of breach of contract.

Judges:

Morland J

Citations:

[2000] IRLR 94

Statutes:

Unfair Contract Terms Act 1977 3

Jurisdiction:

England and Wales

Citing:

CitedChapman v Aberdeen Construction Group 1991
It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as . .

Cited by:

CitedCommerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 09 December 2022; Ref: scu.246221

Dormers Wells Infant School v Gill: EAT 16 Jul 1999

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

Judges:

His Honour Judge Peter Clark

Citations:

[1999] UKEAT 596 – 97 – 1607, EAT/596/97

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

CitedAge Concern Scotland v Hines EAT 1983
An employee in a unique position within a company could not have a normal retirement age. ‘For [Miss Hines] it was argued that she fell into a category of one, being the only counselling organiser employed by the appellants, and that there were . .
CitedPatel v Nagesan CA 1995
Mrs Nagesan’s contract specified no retirement age. She was dismissed on attaining 60. The employers disputed the tribunal’s jurisdiction, saying they had written to all employees, including Mrs Nagesan, purporting to introduce a new retiring age of . .
See AlsoGill Dormer Wells Infant School v Gill EAT 14-Oct-1998
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 December 2022; Ref: scu.205425

Wilson v National Coal Board: HL 1981

A entire colliery closed down and all employees other than the pursuer were offered and accepted alternative employment, thus disqualifying them from receiving redundancy payments. The pursuer, who had been injured by the accident for which the defendants were responsible, was declared redundant and received such a payment.
Held: A redundancy payment is not compensation for a loss of future earnings but rather for the loss of a settled job. In calculating damages for his injuries, credit should be given for the redundancy payment on the application of the principles laid down in Parry v Cleaver [1969] UKHL 2; [1970] AC 1 and, in particular, the public policy consideration that otherwise employers would be tempted to dismiss workers on grounds of incapacity rather than redundancy, where those alternatives were open.

Judges:

Lord Keith of Kinkel

Citations:

1981 SC (HL) 9, 1981 SLT 67

Jurisdiction:

Scotland

Citing:

ApprovedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Cited by:

CitedCantwell v Criminal Injuries Compensation Board HL 5-Jul-2001
When calculating the losses suffered by a victim of crime, the allowance to be made for losses to a retirement pension through having to retire early should have set off against them, the benefits received by way of payments for his ill-health, . .
CitedBaldwin v British Coal Corporation QBD 11-May-1994
The employee had been selected for redundancy. In order for him to qualify for the employer’s supplementary redundancy scheme an arrangement was made whereby he was given short notice. As a result he received an additional pounds 5,000. He now . .
Lists of cited by and citing cases may be incomplete.

Damages, Employment

Updated: 09 December 2022; Ref: scu.219833

British Newspaper Printing Corporation v Kelly: CA 1989

A group of employees had brought proceedings which appeared (though there was some ambiguity) to be intended as claims for redundancy payments. More than three months after the effective date of termination they sought to amend to plead alternative claims for unfair dismissal.
Held: In hearing appeals from the EAT the first question the court of appeal has to address is whether there was an error of law on the part of the IT that gave the EAT its jurisdiction. The appeal court upheld a decision of the EAT reversing the IT’s decision because there was sufficient evidence that the Tribunal probably misdirected itself for the court to affirm the decision of the Employment Appeal Tribunal setting their decision aside. The argument that the primary statutory time limits should be treated as decisive was rejected. Lord Donaldson observed: ‘Now, it is quite true to say that Parliament has laid down rules covering the lodging of applications to Industrial Tribunals but it has not laid down rules for time limits in relation to amending applications which have already been made.’

Judges:

Sir John Donaldson MR

Citations:

[1989] IRLR 222

Jurisdiction:

England and Wales

Citing:

EndorsedCocking v Sandhurst (Stationers) Ltd NIRC 1974
The Appellant employee had applied for leave to amend his first application by substituting the name of the parent company. The Tribunal held that the rules of procedure relating to time limits went to their jurisdiction and that the amended . .

Cited by:

CitedBryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
CitedTransport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment

Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
CitedHeald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
CitedScience Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 December 2022; Ref: scu.186770

Zielinski v France: ECHR 28 Oct 1999

Hudoc The applicants challenged a retrospective change in employment law under article 6(1).
Held: The court stated that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute.

Judges:

L Wildhaber, President

Citations:

24846/94, 34165/96, [1999] ECHR 108, (2001) 31 EHRR 19, (1999) 31 EHRR 532

Links:

Bailii, Wordlii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

Human Rights

Cited by:

CitedGreenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
See AlsoZielinski, Pradal, Gonzalez and Others v France ECHR 8-Jun-2011
. .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 09 December 2022; Ref: scu.165774

ECM (Vehicle Delivery Service) Ltd v Cox and Others: EAT 10 Jun 1998

Employees within a unit employed to satisfy requirements of a contract in one firm had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was transfer of undertaking.

Citations:

Times 10-Jun-1998

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

Jurisdiction:

England and Wales

Citing:

Appealed toECM (Vehicle Delivery) Services Ltd v B Cox and others CA 22-Jul-1999
Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract . .

Cited by:

CitedECM (Vehicle Delivery) Services Ltd v B Cox and others CA 22-Jul-1999
Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 December 2022; Ref: scu.80245

Collisson v British Broadcasting Corporation: EAT 10 Jun 1998

The ability to contract out of continuity of service unfair dismissal and redundancy provisions is limited. It is a statutory concept over-riding private freedom of contract, and contractual approach was inappropriate.

Citations:

Gazette 08-Jul-1998, Gazette 10-Jun-1998, [1998] IRLR 238

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.79283

Cox v Adecco and Others (Whistleblowing, Protected Disclosures, Practice and Procedure): EAT 9 Apr 2021

WHISTLEBLOWING, PROTECTED DISCLOSURES, PRACTICE AND PROCEDURE
You can’t decide whether a claim has reasonable prospects of success if you don’t know what it is. Before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and the issues in the claims. With a litigant in person, this involves more than just requiring the claimant at a preliminary hearing to say what the claims and issues are; but requires reading the pleadings and any core documents that set out the claimant’s case.
The issues were not sufficiently identified in this case, which was the backdrop to the errors of law the tribunal made in determining that the claim of protected disclosure detriment or dismissal had no reasonable prospects of success because the tribunal: (1) failed to sufficiently analyse the information the claimant contended he had disclosed; (2) failed to consider the context in which the disclosure was made; (3) misdirected itself as to the test for whether protected disclosure were in the reasonable belief of the claimant made in the public interest; and (4) failed to properly analyse to whom the disclosure was made, and whether it was arguable that any qualifying disclosure was protected.

Citations:

[2021] UKEAT 0339 – 19 – 0904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661950

Ahl-E-Hadith v Ehsan (Unlawful Deduction From Wages): EAT 14 Sep 2020

The Appellant is a mosque and a Registered Charity (‘the Respondent’). The Claimant was employed by the Respondent as a Minister of Religion. The Claimant alleged that he was paid pounds 1,407.16 by bank transfer from the Respondent each month, but then required to repay part of each payment to the Respondent. He claimed these sums as unauthorised deductions from wages. The Tribunal found in his favour. The Tribunal erred in law in failing to determine the specific occasions on which, and precise circumstances in which, payments and repayments had been made. As a result, the Tribunal had failed to determine whether there was an ‘occasion’, or occasions, on which the sums paid to the Claimant by the Respondent was less than that ‘properly payable’. The matter was remitted for rehearing.
Before the rehearing, case management will be required to consider any application by the Claimant to contend that any payments he made to the Respondent were rendered unlawful by section 15 ERA (rather than being unlawful deductions contrary to section 13 ERA) and/or by the Respondent to claim that recovery of the sums is precluded by the doctrine of illegality because there was an arrangement to make it appear that the Claimant’s salary was greater than it was to support his application for a visa.

Citations:

[2020] UKEAT 0311 – 19 – 1409

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661677

Yi-Lucas v Lloyds Banking Group Plc (Practice and Procedure): EAT 22 Oct 2020

In this case the Claimant sought various remedies from a number of persons. The first person she convened was Lloyds Banking Group plc. In a previous tribunal application, the Claimant had convened Lloyds Banking Group plc together with other persons. The Tribunal had decided she was not employed by Lloyds and was not entitled to seek a remedy from them. Lloyds were a holding company in the group of companies to which the 2nd Respondent belonged. The Tribunal had decided that they were not her employer and that she did not work for them. The tribunal decided that the 2nd respondent was her employer. In the present claim the Claimant sought further remedies in respect of other wrongs. These however arose in respect of the same contract of employment and period of employment. The 1st Respondent took a plea of res judicata which was upheld by the Tribunal. On appeal it was submitted that it was open to the Tribunal to consider the claim against the 1st Respondent because the tribunal that had adjudicated the Claimant’s first claim had not dealt with certain matters relevant to the question of her status as an employee or worker. It was further submitted that even if it had, there were exceptional circumstances that justified the claim continuing against the 1st Respondent. The Claimant submitted that the tribunal had been in error in upholding the res judicata plea and striking out the claim. Held the tribunal had not been in error. The question of the Claimant’s status as an employee or worker was the basis upon which all other substantive claims rested. Where that question had been decided it was not open to the Claimant to relitigate the issue. In any event the fresh arguments which it was said had been raised had already been dealt with by the tribunal that heard the first claim. No exceptional circumstance had been demonstrated that justified repelling the plea of res judicata.

Citations:

[2020] UKEAT 0009 – 20 – 2210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661657

University College London v Brown (Formal Oral Warning, ‘Sole or Main Purpose’): EAT 17 Dec 2020

The ET was entitled to find that the employer’s ‘sole or main purpose’ in giving the Claimant a formal oral warning for refusing to comply with an instruction to take down an email list he had created for union communications was ‘preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so’ within the meaning of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The question of the employer’s ‘sole or main motive’ is a subjective question, to be judged simply by enquiring into what was in the mind of the employer at the time.
The question of whether the employee qualifies for protection under paras (a) to (c) of section 146(1) is an objective question, to be decided by the ET.
The ET made findings of fact on these questions which disclosed no error of law or other basis for a successful appeal.
The employer raised no data protection law issues until closing submissions: they were not raised in the pleadings, or in any of the witness statements, or in cross examination. In those circumstances, the ET would have been entitled not to entertain them. IRC v Ainsworth [2009] ICR 985; Peterbroeck, Van Campenhout and Cie SCS v Belgian State (Case C-312/93) [1995] ECR I-4599; Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1996] 1 CMLR 401; and Van der Weerd v Minister Van Landbouw, Natuur en Voedseklwaliteit [2007] 3 CMLR 7 considered.
Having considered the data protection law issues, the ET made findings open to it on the evidence, and correctly referred to and applied the authorities on the question of whether the alleged breaches, if they were taken as established (which they were not), could be said to remove Mr Brown from the protection of section 146 : Morris v Metrolink Ratp Dev Ltd [2019] ICR 90 CA; Lyon v St James Press Ltd [1976] ICR 413 EAT; Bass Taverns Ltd v Burgess [1995] IRLR 596 CA.
The ET also correctly applied the burden of proof.

Citations:

[2020] UKEAT 0084 – 19 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661676

Chief Constable of Merseyside Police v Knox (Victmisation): EAT 22 Jan 2021

The Claimant in the Employment Tribunal, a police officer serving with the Respondent Force, made a number of subject access requests to the Respondent’s Data Access Unit (DAU). One of these, made in 2017, (SAR1) was for all emails sent within the Force ‘with a connection to me’ between 2002 and 2017. The Respondent was aware that he considered that he had been the victim of unlawful discrimination, and intended to (and did) bring Employment Tribunal claims.
SAR 1 was referred by the DAU to the Anti-Corruption Unit (ACU), which was the body which kept an archive of all emails sent within the Force. Following an initial response from the ACU to the DAU, the Claimant was informed that his request was too wide, and that he needed to identify the names of senders and recipients that he wanted searched. The DAU was told by the ACU that its software at the time did not enable an automated search to be conducted for any email mentioning the Claimant, regardless of who sent or received it. In January 2018 the Claimant was given access to the emails that had been provided to the DAU by the ACU in November 2017. The Tribunal accepted that, to comply with GDPR from May 2018, the ACU upgraded its software, which improved its automated email search capabilities. Thereafter, following further correspondence about his request, a further batch of emails was provided to the Claimant in October 2018.
The Tribunal, by a majority, found that the Claimant had been victimised, in three respects, by the conduct of the Data Access Manager, referred to as Mr D, in connection with SAR 1. The premise of all these findings was the majority’s conclusion that the ACU in fact had the capability to find the further batch of emails provided in October 2018, when it first responded to SAR1 in November 2017; that the limitations of the ACU’s software prior to the GDPR upgrade did not truly explain why that second batch of emails had not been disclosed with the first batch; and that Mr D knew this to be the case. This conclusion was relied upon by the majority to support the conclusion that Mr D’s impugned conduct was reasonably viewed by the Claimant as detrimental treatment; and that the burden shifted to the Respondent to show that such conduct was not because of the Claimant’s protected acts; and that, as Mr D had not been called as a witness, the Respondent had not discharged that burden, so that findings of victimisation followed.
On the Respondent’s appeal, it was held:
(1) The majority did not have a proper basis, on the evidence before the Tribunal, and facts found, to conclude that the explanation given, for why the ACU was not able to retrieve more emails than were produced, prior to the software upgrade, was not true. The majority rested their conclusion on their understanding of what the ACU existed to do, but the facts found about that, whether generally or in relation to the email archive, did not properly support such an inference. The majority were also wrong to draw an adverse inference from the failure of the Respondent to call a witness from the ACU (in addition to one from the DAU) when the pleaded victimisation claims did not identify that the conduct of the ACU in relation to SAR1 was specifically being criticised. The finding that the explanation given by the ACU was not true was therefore perverse. As it was conceded by the Claimant that the findings of detrimental treatment all rested on that finding (and the inference that Mr D knew that the ACU could have retrieved the October emails at the outset), those findings of detrimental treatment could not stand.
(2) In any event, the matters referred to by the majority as supporting a shifting of the burden of proof could not, separately or cumulatively, properly support the shifting of the burden. In addition, in considering whether the burden shifted in relation to Mr D’s impugned conduct, the majority should have considered the picture painted by all of the Tribunal’s relevant findings regarding his conduct, and his interactions with the Claimant, in relation to SAR1. Consideration of the whole picture reinforced the conclusion that there was no proper basis for the majority’s finding that the burden of proof shifted to the Respondent.
The appeal was accordingly allowed.

Citations:

[2021] UKEAT 0300 – 19 – 2201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661679

Iceland Foods Ltd v Stevenson (Unfair Dismissal – Disability Discrimination): EAT 13 Feb 2020

An ET held that the dismissal of an employee who had been on long-term sickness absence was not unfair. However, it also held that the dismissal constituted unfavourable treatment because of something arising in consequence of disability pursuant to Section 15 of the Equality Act 2010.
Such an outcome is possible, as a matter of law – see City of York Council v Grossett [2018] IRLR 746 CA, a case which concerned misconduct rather than capability. However, it is of note that in O’Brien v Bolton St Catherine’s Academy [2017] ICR 737 CA Underhill LJ had expressed the view that ‘ . . it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law’
In the present case, each party appealed, contending that the findings in relation to the claim on which each was successful should have resulted in the other claim having succeeded.
The EAT allowed the Respondent’s appeal on the basis that the ET erred in law in failing to examine objectively the justification advanced at the date of the Hearing. Its focus on the beliefs of the dismissing officer at the time of the meeting and its failure to balance all the relevant factors amounted to an error of law. As to the ‘ordinary’ unfair dismissal, a number of contradictory findings could not be reconciled or explained by a difference in the applicable legal tests, and the Appellant’s appeal was also allowed and the case remitted for rehearing.

Citations:

[2020] UKEAT 0309 – 19 – 1302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.652137

Patel v City of Wolverhampton College (Practice and Procedure): EAT 19 Jun 2020

The Employment Appeal Tribunal declined to extend time for the presentation of a Notice of Appeal against one Judgment of the Employment Tribunal and dismissed a validly presented Appeal against a second Judgment which refused the Claimant’s request for reconsideration of the first. After the Employment Tribunal’s Judgments had been promulgated, and after the presentation of the Appeals, the Claimant and the Respondent had entered into a settlement agreement, following ACAS conciliation, which had compromised all the causes of action relied on by the Claimant before the Employment Tribunal. The Claimant subsequently sought to pursue both of the Appeals before the Employment Appeal Tribunal and contended that the conciliated agreement should be set aside.
The Employment Appeal Tribunal held that the agreement between the parties resulted in the Appeals against the Employment Tribunal’s earlier Judgments being academic and that there was no sufficient reason for either of them to proceed to a Full Hearing in those circumstances. It also held, applying Freeman v Sovereign Chicken [1991] ICR 853, that it was not open to the Claimant to seek to set aside the conciliated agreement as part of the appeal proceedings.

Citations:

[2020] UKEAT 0013 – 20 – 1906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.652143

GTR Ltd v Rodway and Others (Blacklisting Regulations – Jurisdictional Points – Extension of Time: Just and Equitable): EAT 17 Jun 2020

It had not been open to an employment judge to decide that the claimants merely sought to re-label their claims when seeking an amendment to claims alleging discrimination on the ground of religion and belief and non-payment of holiday pay. The amendment sought to introduce, based on largely but not entirely the same facts, claims for compensation for breach of the Employment Act 1999 (Blacklisting) Regulations 2010 (the 2010 Regulations).
When applying the well known Selkent guidelines, the judge had correctly discerned that the factual basis of the claims was largely unchanged, other than by developments since they were originally presented; but she failed to take into account the substantial differences between the nature of the causes of action asserted in the original claims and those advanced in the draft amended claims; and, in consequence, the change in the remedies sought.
A claim under the 2010 Regulations requires the existence and use of a prohibited list. The cause of action is a form of discrimination quite unlike discrimination on the ground of religion or belief. The initial claims appeared to rely on non-payment of holiday pay but did not, unlike the draft amended claims, make clear that the remedy sought in respect of the non-payment was not the payment of the sums due but compensation for breach of the 2010 Regulations.
The judge had also omitted to address the respondent’s contention that the claims, as originally presented, had been brought out of time. Although she had appreciated that the Selkent guidelines included consideration of time limits, she had considered the time limits issue on the basis that it was appropriate to treat the original claims as having been made under the 2010 Regulations at the time they were presented.
The judge’s exercise of discretion to allow the amendment was therefore flawed. The application for permission to amend the claims would be remitted for reconsideration by a different employment judge. Time limits would also need to be revisited as part of the reconsideration exercise, including consideration of whether the claims as originally presented had been brought out of time.

Citations:

[2020] UKEAT 0283 – 19 – 1706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.652141

Kiani v The Secretary of State for The Home Department: CA 21 Jul 2015

Lord Dyson MR (with whom Richards LJ and Lewison LJ agreed) held that the requirements of article 6 ‘depend on context and all the circumstances of the case’. The court will strike an appropriate balance between the requirements of national security and the right of an individual to effective judicial protection. The balancing of these competing interests must take account of all the facts of the particular case.

Judges:

Lord Dyson MR, Richards, Lewison LJJ

Citations:

[2015] EWCA Civ 776, [2015] WLR(D) 325, [2016] QB 595

Links:

Bailii, WLRD

Statutes:

European onvention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Appeal fromKiani v Secretary of State for The Home Department EAT 21-Nov-2014
EAT National Security – An immigration officer, C employed by the Home Office was suspended, his security clearance withdrawn, and then dismissed, all without any reason being given to him. He claimed it was . .

Cited by:

CitedReprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights

Updated: 07 December 2022; Ref: scu.550369

AX v European Central Bank: ECJ 13 Dec 2012

ECJ Civil service – ECB Staff – Disciplinary proceedings – Suspension of a staff member without reduction of his basic salary – Withdrawal of a decision – Rights of the defence – Access to the file – Statement of reasons – Reasons for a decision – Allegation of breach of professional duties – Serious misconduct

Judges:

Pujol, P

Citations:

F-7/11, [2012] EUECJ F-7/11

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 07 December 2022; Ref: scu.468760

Strand Transport Services Ltd v Whitworth: CA 6 Aug 2009

The process of the company making the claimant redundant had been declared a sham. The company appealed against a decision that even had the correct procedures been followed, the decision would have been the same. The tribunal said that insufficient evidence had been brought to support such an assertion.
Held: The appeal was dismissed. The employer’s ‘case was that it had fairly and reasonably dismissed him for redundancy following actual consideration of, and consultation with him on, the ‘swallowing up’ point. That point was neither mentioned in the note of the critical meeting with Mr Whitworth nor in the ET3. Strand’s evidence on that aspect of redundancy in the witness statements and in the answers of Mr Greenhalgh in cross examination was not accepted. It was correct for the ET to conclude that there was ‘no evidence’ to support the Polkey point in the commonly accepted sense that no relevant facts were established by credible evidence. ‘

Judges:

Mummery, Longmore, Lloyd LJJ

Citations:

[2009] EWCA Civ 858

Links:

Bailii

Statutes:

Employment Rights Act 1996 98A(2)

Jurisdiction:

England and Wales

Citing:

CitedPolkey 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.

Employment

Updated: 07 December 2022; Ref: scu.372638

A v Company B Ltd: 1997

The plaintiff had been called in and dismissed without being given any opportunity to defend himself. The company admitted unfair dismissal.
Held: Sir Richard Scott VC said: ‘I have to say that it seems to me grossly unfair that an employee should be dismissed for gross misconduct without being given any opportunity, any chance at all, of meeting the evidently serious allegations that had been made against him. Indeed, as an example of employment practice it seems to me outrageous.’

Judges:

Sir Richard Scott VC

Citations:

[1997] IRLR 405

Jurisdiction:

England and Wales

Cited by:

CitedAinsworth and others v Whitbread Plc EAT 17-Dec-1997
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 December 2022; Ref: scu.267934

Maurice Graham Ltd v Brunswick: 1974

It is impossible to draw up a complete list of criteria to be considered when deciding whether a contract is one of employment or one for services

Citations:

[1974] 16 KIR 158

Jurisdiction:

England and Wales

Cited by:

CitedMassey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 07 December 2022; Ref: scu.250995

Brink’s Ltd v AbuSaleh: 1999

Mrs Elcombe accompanied her husband on a number of trips to Switzerland. Mr Elcombe was carrying money which was part of the proceeds of the Brinks-Mat gold bullion robbery. However, Mrs Elcombe did not know that. She thought that the money was the subject of a tax evasion exercise. Brink’s claimed against her that she was liable as a dishonest assistant in a breach of trust.
Held: Although Mrs Elcombe knew that her husband was engaged in a dishonest scheme (i.e. tax evasion) that was not enough. It had to be proved that she knew of the existence of the trust or, at least of the facts giving rise to the trust. A security guard was employed in a position of trust in which he possessed valuable information; and as a result owed a fiduciary duty to his employer not to divulge that information to anyone not entitled to it. But it could not have been suggested that a security guard owed his employer the full range of directors’ fiduciary duties.

Judges:

Rimer J

Citations:

[1999] CLC 133

Jurisdiction:

England and Wales

Cited by:

CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 December 2022; Ref: scu.230275