Category: Employment

Riley v Belmont Green Finance Ltd (T/A Vida Homeloans) (Victimisation Discrimination- Whistleblowing- Perversity): EAT 13 Mar 2020

VICTIMISATION DISCRIMINATION – Whistleblowing
PRACTICE AND PROCEDURE – Perversity
The Claimant was a worker employed by the Respondent on a temporary assignment. On 14 March 2017, the Respondent terminated the assignment with immediate effect. There had been a meeting the previous day between the Claimant and one of the Respondent’s managers. The Claimant had made several complaints at the meeting. He contended that they amounted to protected disclosures under Part IVA of the Employment Rights Act 1996 and that the Respondent’s subsequent actions amounted to unlawful detriments on the grounds of his having made those disclosures. The Employment Tribunal dismissed the Claimant’s claim, finding that no qualifying disclosures had been made at the meeting and, in the alternative, on the basis of causation. On appeal, the Employment Appeal Tribunal dismissed the appeal and held that:
The Employment Tribunal had not made perverse findings of fact regarding what the Claimant had disclosed to the Respondent at the meeting on 13 March 2017.
On the Employment Tribunal’s factual findings about what the Claimant disclosed in the meeting, there was no material error of law in its conclusion that the matters raised did not amount to qualifying disclosures attracting statutory protection.
The Employment Tribunal had erred in law in its approach to causation. Having found that the Respondent’s actions in subjecting the Claimant to the detriments complained of had been motivated in part by the Claimant’s attitude and behaviour during the meeting, it had failed to address the issue of whether that behaviour was separable from the making of any disclosures. However, given the Employment Tribunal’s finding that the complaints that it had found were made did not amount to qualifying disclosures, any such error was not material to the outcome.

Citations:

[2020] UKEAT 0133 – 19 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 November 2022; Ref: scu.649255

Uddin v London Borough of Ealing (Unfair Dismissal – Reasonableness of Dismissal): EAT 13 Feb 2020

The Claimant was dismissed by reason of conduct, arising from an allegation of inappropriate sexual behaviour towards a colleague in an alleged incident at a bar. Claims of unfair and wrongful dismissal failed, by majority decision of the Employment Tribunal. Claims of sex and age discrimination were dismissed unanimously. Three grounds of appeal proceeded to a full hearing. Grounds 1 and 3 related to unfair dismissal and, as to Ground 3, wrongful dismissal; Ground 4 to one aspect of the discrimination claims.
Ground 1 turned on the fact that the complainant had withdrawn a complaint to the police, but the manager who took the decision to dismiss, who knew that the complaint had been made, was not told that it had been withdrawn. The Tribunal majority concluded that this did not affect the fairness of the dismissal, because she could in any event have fairly dismissed, had the police complaint never been made. Given that (a) the dismissing officer took into account that the police complaint had been made; and (b) her evidence was that, had she been told that the complaint had later been withdrawn, she would have wanted to know why, the Tribunal erred in its approach. Given that the investigating officer knew that the police complaint had been withdrawn, but did not pass this on to the disciplining officer, and the gravity of the allegations, the only proper conclusion was that this rendered the dismissal unfair. Royal Mail v Jhuti [2019] UKSC 55 considered. Whether, had she known of the withdrawal of the police complaint, the disciplinary officer would, or might, have still fairly dismissed fell to be considered by the Tribunal at the remedy stage.
Ground 3 was to the effect, principally, that, as both the Claimant and complainant had been too drunk to have a clear recollection of what had occurred, and no-one else at the bar had witnessed the alleged incident itself, the majority should have found that there was no proper basis to find the Claimant guilty of the alleged conduct. However, the Tribunal majority properly so found, taking into account its appraisal of photographic evidence, said to be of the complainant’s injuries, and the totality of the evidence presented in the disciplinary process. The findings in relation to wrongful dismissal were also properly reached. This ground therefore failed.
Ground 4 challenged the Tribunal’s decision in relation to allegations of sex and age discrimination relating to aspects of the conduct of the investigating officer. However, the premise of this ground was that the Tribunal erred in not considering these allegations on a more wide-ranging basis than the complaints identified in a list of issues agreed at a Preliminary Hearing. However, the Tribunal had been right to confine itself to the complaints identified in that list of issues. This ground therefore also failed.

Citations:

[2020] UKEAT 0165 – 19 – 13023

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 November 2022; Ref: scu.649251

O’Cathail v Transport for London: CA 20 Jul 2012

The court was asked about the power of the Employment Appeal Tribunal (EAT) to extend time for appealing from the Employment Tribunal (ET).

Judges:

Mummery, Rimer, Pitchford LJJ

Citations:

[2012] EWCA Civ 1004, [2013] ICR D2

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – O’Cathail v Transport for London EAT 13-Jan-2012
EAT PRACTICE AND PROCEDURE
Case management
Postponement or stay (refusal of adjournment)
The Claimant submitted medical evidence to the effect that he was unfit to attend the hearing of his claim . .

Cited by:

See Also – Transport for London v O’Cathail CA 29-Jan-2013
The court considered an appeal against a refusal of a late application for an adjournment by an employment tribunal.
Held: The appeal was allowed. There had been no error of law in the decisions of the ET to refuse adjournments either in its . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.463076

King v Health Professions Council: EAT 13 Jul 2012

EAT DISCRIMINATION BY QUALIFYING/QUALIFICATIONS BODY
A medical professional who had taken a career break sought to return to her work as a biomedical scientist, for which she required to be registered anew by the Health Professions Council. She was deterred from applying when it indicated in correspondence that her qualifications were not sufficient to be recognised, and wished to bring a claim alleging discrimination on the grounds of sex, race and age against the HPC, since (in particular) a doctor resident abroad who applied for registration with her qualifications would (she claimed) be acceptable, whereas she was not. When she claimed, the Employment Judge first accepted jurisdiction, then on review declined jurisdiction but on a basis the parties agreed to be erroneous. The relevant statutes all provide that for there to be a claim of discrimination against a qualifying (or qualifications) body, it must be ‘in the terms on which it is prepared to confer a professional or trade qualification on him’. It was held on appeal that this phrase did not cover letters to the Claimant saying that certain qualifications would not be accepted if she were to apply. Nor was there refusal of an application, since none had yet been made. Accordingly, there was no jurisdiction, since the Act did not provide for it. The Claimant was not without remedy, since it remained open to her to apply.

Judges:

Langstaff J P

Citations:

[2012] UKEAT 0169 – 11 – 1307

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.462930

Woodhouse v Hampshire Hospitals NHS Trust: EAT 26 Apr 2012

EAT PRACTICE AND PROCEDURE – Amendment
The Employment Tribunal erred in refusing to allow a new claim (disability discrimination) by way of amendment when it considered the evidence already exchanged. By definition, since this was not a mere relabelling, the evidence was not directed to the new claim and so the Employment Tribunal was wrong to include its assessment of the weakness of that claim in its exercise of discretion under Selkent. In any event it was wrong to hold that the Claimant had produced no such evidence, when he plainly had. The Employment Tribunal did not cite the Claimant’s argument or consider prejudice to him.
Remitted to the same Employment Tribunal to hear again now with an order for the Claimant to provide evidence on the disability claim.

Judges:

McMullen QC

Citations:

[2012] UKEAT 0132 – 12 – 2604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462920

McCafferty v Royal Mail Group Ltd: EAT 12 Jun 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal. Gross misconduct. Members’ majority found dismissal to have been fair. Appeal dismissed: the majority were entitled, on the evidence, to conclude as they did. The conclusions of the Employment Judge were, conversely, contrary in some respects to the findings in fact and amounted to substitution. Observations on the role of the lay members in an unfair dismissal claim.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0002 – 12 – 1206

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462922

Purohit v Hospira UK Ltd: EAT 18 Apr 2012

EAT PRACTICE AND PROCEDURE
Costs
Review
The unsuccessful Claimant sought a review of the Employment Tribunal judgment. It was an extensive application. The Employment Judge sought a comprehensive response by the Respondent in his preliminary consideration under rule 35(3). The Respondent responded and sought its cost of so doing. Without a hearing, but after reading the Claimant’s submissions, the Employment Judge refused to order a review and awarded a portion of the Respondent’s costs. The Employment Judge did not err or exercise his discretion wrongly. Costs may be awarded at any stage of the proceedings if the criteria in rule 40(3) are met.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0306 – 11 – 1804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 03 November 2022; Ref: scu.462919

Morgan v Greater Glasgow Health Board: EAT 19 Jun 2012

EAT UNLAWFUL DEDUCTION FROM WAGES
Unlawful deduction from wages. Terms and conditions of employment of Specialty Registrar in Psychotherapy. Downbanding. Pay Protection. Appeal against finding that pay protection lost at the end of each of a junior doctor’s placements misconceived. Expenses.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0044 – 11 – 1906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462924

Welch v The Taxi Owners Association (Grangemouth) Ltd: EAT 15 Jun 2012

EAT UNFAIR DISMISSAL
Constructive dismissal
Reasonableness of dismissal
Claimant – a radio control operator for a taxi company – resigned when her hours were reduced. Tribunal held she was not unfairly constructively dismissed. Although the reduction in her hours was a fundamental breach of contract, it was justified in circumstances where competition from another taxi cab operator had led to a downturn in business. There was no question of redundancy since, although the Respondent’s need to have the Claimant (and another employee) work as many hours as before, there was no reduction in their need for employees to work as radio control operators. Appeal on grounds that Tribunal should have found that the Claimant was in a redundancy situation dismissed.

Judges:

Hon Lady Smith

Citations:

[2012] UKEAT 0001 – 12 – 1506

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462927

Mears Ltd v Salt and Others: EAT 1 Jun 2012

EAT CONTRACT OF EMPLOYMENT
The Employment Tribunal had jurisdiction to entertain an unlawful deduction from wages claim where a historical travel allowance had long ago become consolidated into a contractual payment unrelated to actual travel.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0522 – 11 – 0106

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462923

Khatri v The London Central Mosque Trust Ltd and Another: EAT 17 Jul 2012

EAT CONTRACT OF EMPLOYMENT – Incorporation into contract
The Claimant was hired by the Mosque as a teacher of the Mosque’s weekend school in 1997. In 1998 the Claimant agreed to work as the Nursery Manager and continued to do so until the termination of her employment. A company called Al Madina Nursery School Limited was incorporated. The issue arose as to whether the Claimant was employed at the termination of her contract in 2010 by the Mosque or by the Nursery. The Employment Tribunal held that she was employed by the Nursery. She appealed.
Held: dismissing the appeal.
The Employment Tribunal was entitled to reach that decision as the identity of the Claimant’s employer was varied so that she ceased to be employed by the Mosque and this was shown by the facts that:-
a) Her payslips, her P46 and her time sheet all had the name of the Nursery on it;
b) She was paid by the Nursery;
c) When asked to draft some terms and conditions for her staff, the draft referred to the employer as being the Nursery;
d) Initially in her claim to the Employment Tribunal, the Claimant said that she had been employed by the Nursery but she only amended her claim to contend that the Mosque as her employer at a time when it appeared that the Nursery had suspended its operations; and
e) The Claimant wrote letters about the Nursery and signed herself as Nursery Manager.

Judges:

Silber J

Citations:

[2012] UKEAT 0110 – 12 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462929

Nicholls v Rockwell Automation Ltd: EAT 25 Jun 2012

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Polkey deduction
The Claimant was dismissed on grounds of redundancy. The Tribunal found the dismissal to be unfair by reason of the Respondent’s scoring in respect of certain items within its matrix.
Held: the Tribunal had not applied the approach set out in British Aerospace v Green [1995] IRLR 437 and had in effect substituted its own view of the appropriate marks for that of the Respondent. Appeal allowed; finding substituted that the dismissal was fair.
Appeal and cross appeal on Polkey points dismissed (and academic in any event, having regard to result of appeal concerning unfair dismissal).

Judges:

David Richardson J

Citations:

[2012] UKEAT 0540 – 11 – 2506

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462925

CFS Management Services Ltd v Thomas: EAT 11 Jul 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant was dismissed for ill-health. He was entitled, while in employment, under an income protection scheme to be paid 66 per cent of his salary while fully unable to work and a lesser proportion if partially unable to work. He was absent ill for a series of substantial periods and for several months before the dismissal, at the time of which he, supported by his own doctors, said that he was fully unable to work. The Respondent accepted that if the Claimant was unable to work within the terms of the scheme they would not have dismissed him; the Employment Tribunal found that in these circumstances dismissal fell outside the range of reasonableness. In effect the Respondent was seeking to assert that the Claimant was not sufficiently unwell to fall within the terms of the scheme but sufficiently unwell to justify dismissal.
The thrust of the appeal was that the ET had substituted their own view of what was reasonable; The ET more than once used the word ‘unreasonable’ to describe the Respondent’s actions; but they had given themselves a correct direction as to the law; their Judgment should be read as a whole; their use of the word ‘unreasonable’ shortly after a correct self-direction should be taken to mean ‘outside what a reasonable employer would have done’.
Appeal dismissed.

Judges:

Jeffrey Burke QC

Citations:

[2012] UKEAT 0511 – 11 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462928

Cumbria Partnership NHS Foundation Trust v Steel: EAT 17 May 2012

EAT UNFAIR DISMISSAL
Employment Rights Act 1996, section 98(4)
Fairness of dismissal
Before the Employment Tribunal it was agreed that the Claimant was dismissed for the potentially fair reason of redundancy. It was disputed that the test of fairness was satisfied. The Claimant alleged that he was the highest scoring applicant for a new post, which he wished to accept and to which he should have been appointed. ET found he had been unfairly dismissed. Appeal by Employer failed. In the light of the terms of the employer’s policy and past practice, ET was entitled on the evidence to conclude that the imposition of a competency bar in the context of a slotting-in process was outside the band of reasonable responses

Judges:

Supperstone J

Citations:

[2012] UKEAT 0635 – 11 – 1705

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(4)

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462921

Patel v Babcock Airports Ltd: EAT 11 Jun 2012

EAT PRACTICE AND PROCEDURE – Review
On 27 June 2011 the Tribunal prepared a letter informing the Claimant that Employment Judge Hill was considering striking out the claim because he had not complied with the order dated 16 May. The letter said that if he wished to object to the proposal he should give his reasons in writing by 5 July 2011. He did not do so; his claim was struck out. He applied for a review, stating that he had not received the letter dated 27 June 2011. The Employment Judge said that she ‘did not accept the Claimant was telling the truth’ because the letter had been sent by email to the usual address. She refused the application for review peremptorily under rule 35(3).
Held: she was not entitled to reach the conclusion that the Claimant was not telling the truth without further enquiry.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0037 – 12 – 1106

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462926

Spence v Revenue and Customs: FTTTx 23 Mar 2012

FTTTx Statutory sick pay – entitlement depending on ‘normal weekly earnings’ reaching NIC lower earnings limit – errors on one of two relevant payslips, supposedly corrected on the other – whether only the earnings actually paid during relevant period should be taken into account – not certain, but in present case yes – whilst in some cases the Tribunal might have power to substitute its view of the correct figure, this was not such a case – and even if it did so, ‘normal weekly earnings’ would still be below the NIC lower earnings limit – sections 151, 153 and 162(2) to (4) and Schedule XI Social Security Contributions and Benefits Act 1992 and regulations 17 and 19 of Statutory Sick Pay (General) Regulations 1982 considered – appeal dismissed

Citations:

[2012] UKFTT 213 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Benefits, Employment

Updated: 03 November 2022; Ref: scu.462641

Leach v The Office of Communications (Ofcom): CA 13 Jul 2012

The court was asked whether the Employment Tribunal (ET) erred in law in rejecting the Claimant’s case against the Respondent OFCOM, his former employer, for unfair dismissal and breach of contract (wrongful dismissal) as not well-founded. The claimant was suspect of child sexual abuse in Cambodia, but no charges had at first been brought. The defendant said that his alleged behaviour had undermined the relationship of trust and confidence with him. By the time of the appeal, the clamant was serving a prison sentence in Cambodia.
Held: No error of law had been shown, and or had the claimant been open or presented a full or accurate picture of events. The appeal failed.

Judges:

Mummery, Hooper, Pitchford LJJ

Citations:

[2012] EWCA Civ 959, [2012] WLR(D) 205, [2012] ICR 1269, [2012] IRLR 839

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462558

A Links and Co Ltd v Rose: 1993

Citations:

[1993] SLT 664

Jurisdiction:

Scotland

Cited by:

Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.377523

Pankhurst (T/A Mopdoc’s Barbers) v Phillips: EAT 10 Jun 2009

EAT UNFAIR DISMISSAL: Automatically unfair reasons
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity,br />The Appellant employed the Respondent as a hairdresser. Shortly after the Appellant became aware the Respondent was pregnant the Appellant dismissed her. The Respondent asserted, and the Employment Tribunal found, she was dismissed as a result of her pregnancy. The Appellant had asserted that she had dismissed all her staff at the same time and had done so on financial grounds (she was in an IVA). The Employment Tribunal did not deal with the dismissal of the other staff.
Held:

Citations:

[2009] UKEAT 0040 – 09 – 1006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.375923

Liffe Administration and Management v Pinkava and Another: CA 15 Mar 2007

The employee had patented in the US a trading system he invented whilst employed by the defendant, who now sought ownership. He appealed a finding that the inventions had been made during the normal course of his employment. The employment contract provided: ‘All trade secrets, inventions, written documents, and other confidential information developed or created by or with your assistance during your employment in the course of carrying out your duties are LIFFE’s property and such rights or interest in any such property or information that you may have are prescribed by the law.’
Held: The employee’s appeal failed. The job description included the development of credits derivatives products, and the work had become part of his normal duties. For section 39(1)(a) to apply not only must the invention be made in the course of the employee’s normal or specifically assigned duties but also that ‘the circumstances in either case were such that an invention might reasonably be expected to result from the carrying out of his duties.’ Since the relevant part of the 1977 Act extended an employee’s rights it was not necessary further to interpret it to preserve common law rights.
Jacob LJ said: ‘Since one cannot go by the contract alone I do not think one can be too precise about how the duty is to be ascertained. The contract and the general nature of the job both call for examination. It is not possible to be too analytical about this. In the end one is asking whether the employee is employed to try to innovate and, if he is, what general sort of areas his innovation duties cover.’

Judges:

Chancellor, Longmore LJ, Jacob LJ

Citations:

[2007] EWCA Civ 217, [2007] Bus LR 1369, [2007] 4 All ER 981, [2007] BusLR 1369, [2007] ICR 1489

Links:

Bailii

Statutes:

Patents Act 1977 39

Jurisdiction:

England and Wales

Citing:

Appeal from – Liffe Administration and Management v Pinkava and Another PatC 24-Mar-2006
The claimant sought the rights to a patent acquired by the defendant in respect of trading systems invented by him, saying that this had been created as part of his work for them. The employment contract included a clause assigning such rights to . .
Cited – British Reinforced Concrete Engineering Company Ltd v Lind ChD 1917
An assistant engineer created an invention from a visit to a colliery made in the course of his employment. He applied for and was granted a patent. The employer claimed to be entitled to the benefit of it. The employee resisted saying that he was . .
Cited – Greater Glasgow Health Board’s Application 1996
An Opthalmic Registrar employed by the Board invented an optical spacing device for use with an indirect ophthalmoscope. The Hearing Officer decided that the invention belonged to the employer.
Held: The employee’s appeal succeeded. The court . .
Approved – Harris’ Patent 1985
Harris was the manager of the Wey valve department of his employer. In August 1978 he was told he would be made redundant, and left in December. In the meantime he devised an improvement to the Wey valve and applied for a patent in January 1979. The . .
Cited – Patchett v Stirling Engineering Co Ltd 1955
The court considered the position at common law of an employee claiming to patent his invention: ‘It is elementary that, where the employee in the course of his employment (ie in his employer’s time and with his materials) makes an invention which . .
Cited – Re Charles Selz’s Application 1953
The applicant was general manager of a factory of a lamp-shade maker. At a packaging exhibition he visited for his employer, he was shown some ‘spray plastic’ packaging. It occurred to him that spray plastic was capable of uses other than packaging, . .
Cited – Armstrong Whitworth Rolls Ltd v Mustard 1971
An employee’s duties and roll may evolve over time. . .
Cited – Carmichael and Lesse v National Power Plc CA 29-Jan-1997
Casual workers employed under ‘nil hours’ relationship still had a contract of employment and the appropriate and associated rights. A court was fully able to determine the terms of the contract. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Employment

Updated: 03 November 2022; Ref: scu.250476

Hydra Plc and others v Anastasi and others: QBD 20 Jul 2005

Judges:

Royce J

Citations:

[2005] EWHC 1559 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G D Searle and Co Ltd v Celltech Ltd CA 1982
The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 03 November 2022; Ref: scu.229284

Apelogun-Gabriels v Employment Appeal Tribunal: CA 17 Jul 2001

Applications for permission to appeal – rejection of claims for race discrimination

Citations:

[2001] EWCA Civ 1190

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – London Borough of Lambeth and Another v Apelogun-Gabriels CA 22-Nov-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.201202

Caledonia Motor Group Ltd v Reid: EAT 1996

Citations:

EAT/590/96

Jurisdiction:

England and Wales

Cited by:

Compared – Bennett T/A Foxbar Hotel v Reid EAT 26-Sep-2001
The employer appealed an award of ten thousand pounds for injured feelings, following a finding of sex discrimination. It was said that the award went beyond compensation to punishment. To vary such an award, the EAT must find some error of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.181278

Post Office v Adekeye: CA 13 Nov 1996

Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the phrase ’employed by him’ in section 4 (2) was confined to persons employed at the time of the act complained of; and there was no other provision covering cases where the employment had terminated. The court dismissed the appeal.

Judges:

Pill, Mantell and Buxton LJJ

Citations:

Times 03-Dec-1996, Gazette 13-Dec-1996, [1997] ICR 110, [1996] EWCA Civ 943

Statutes:

Race Relations Act 1976 4(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Post Office v Adekeye EAT 23-Feb-1995
An Industrial Tribunal may not look at a claim of race discrimination which had taken place in the context of a disciplinary appeal following a dismissal. The act of discrimination had not been in the course of the employment. . .

Cited by:

Applied – Rhys-Harper v Relaxion Group plc CA 3-May-2001
A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment . .
Appealed to – Post Office v Adekeye EAT 23-Feb-1995
An Industrial Tribunal may not look at a claim of race discrimination which had taken place in the context of a disciplinary appeal following a dismissal. The act of discrimination had not been in the course of the employment. . .
Disapproved – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – D C D’Souza v London Borough of Lambeth CA 2001
The court dismissed the claimant’s claim for damages for racial discrimination for acts occurring after the termination of his employment by the respondents.
Held: Applying Adekeye, the claim was dismissed, but the court saw ‘some force’ in . .
Cited – Jones, Kirker, Angel and Bond v 3M Healthcare Ltd, Ambitions Personnel (Nottinghamshire) Ltd, British Sugar Plc, New Possibilities NHS Trust and Hackney EAT 11-Dec-2001
EAT Disability Discrimination – Disability
Nicholas Kirker was employed by British Sugar plc as a shift chemist until dismissed. He has very poor eyesight and is registered as fully blind. He claimed he had . .
Cited – Jessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 03 November 2022; Ref: scu.84811

VW v Commission (Judgment): ECFI 16 Dec 2020

Civil service – Officials – Surviving spouse – Survivor’s pension – Articles 18 and 20 of Annex VIII to the Staff Regulations – Conditions of eligibility – Duration of marriage – Exception of illegality – Equal treatment – Principle of proportionality

Citations:

T-243/18, [2020] EUECJ T-243/18, ECLI: EU:T:2020:619

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 03 November 2022; Ref: scu.660759

Prestige Nursing Ltd v Carter: EAT 11 May 2012

EAT WORKING TIME REGULATIONS
UNLAWFUL DEDUCTION FROM WAGES
Daily rest and weekly rest periods – not alleged by Claimant that there had been any attempt to exercise the rights which the Respondent had refused – appeal allowed and award set aside – Miles v Linkage Community Trust [2008] IRLR 602 followed.
Unlawful deduction from wages – no satisfactory finding as to terms of contract – appeal allowed and case remitted.

Judges:

Richardson J

Citations:

[2012] UKEAT 0015 – 12 – 1105

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – P Miles v Linkage Community Trust Limited EAT 10-Mar-2008
EAT Working Time Regulations
Under WTR Reg 30(4), an Employment Tribunal did not err when it upheld the Claimant’s case for breach of Reg 24 on loss of compensatory time yet awarded no compensation. It . .
Cited – Hampson v Department of Education and Science CA 1989
Balcombe LJ said: ‘In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.’ The task of the Tribunal hearing such a complaint is . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.462439

Carter v Prestige Nursing Ltd: EAT 11 May 2012

EAT WORKING TIME REGULATIONS
UNLAWFUL DEDUCTION FROM WAGES
Daily rest and weekly rest periods – not alleged by Claimant that there had been any attempt to exercise the rights which the Respondent had refused – appeal allowed and award set aside – Miles v Linkage Community Trust [2008] IRLR 602 followed.
Unlawful deduction from wages – no satisfactory finding as to terms of contract – appeal allowed and case remitted.

Judges:

Richardson J

Citations:

[2012] UKEAT 0014 – 12 – 1105

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – P Miles v Linkage Community Trust Limited EAT 10-Mar-2008
EAT Working Time Regulations
Under WTR Reg 30(4), an Employment Tribunal did not err when it upheld the Claimant’s case for breach of Reg 24 on loss of compensatory time yet awarded no compensation. It . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.462438

Boardman v Nugent Care Society and Another: EAT 10 Jul 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross misconduct, namely assaulting a pupil. ET found to have erred in its factual findings. ET failed to appreciate what was at all times in dispute on the critical issue of what the employee had done. Appeal allowed. Matter remitted for re-hearing before fresh Tribunal.

Judges:

Supperstone J

Citations:

[2012] UKEAT 0071 – 12 – 1007

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Nugent Care v Boardman EAT 25-May-2010
EAT Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
Appeal by employers and cross-appeal by employee against Employment Tribunal’s finding of unfair dismissal for gross . .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .

Cited by:

Appeal from – Clarence High School and Another v Boardman CA 15-Mar-2013
The claimant school teacher had been dismissed, after a finding that she had assaulted a pupil. She denied the assualt.
Held: The School’s appeal against the decision of the EAT to re-instate the claim of unfair dismissal succeeded. The EAT . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.462441

Tokyo Industries 5 Ltd v Megwa and Another: EAT 22 May 2012

EAT PRACTICE AND PROCEDURE
A legally unrepresented employer contended that it had come to a preliminary hearing unprepared for it to be determined whether it rather than a third party employed the Claimant, given the way the issues for decision had been set out. No adjournment was offered. It was argued this was unfair. Held, dismissing appeal, that since the claim was for unfair dismissal, and the employer’s response had understood this – since it had said that the Claimant was not and had never been its employee – no material procedural irregularity had occurred. The Employment Tribunal was also within its powers to refuse a review.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0594 – 11 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462440

Connaughton v Gillen: EAT 23 May 2012

EAT UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Unfair dismissal. Bias and prejudgment. Perversity. Appeal upheld.

Judges:

Smith L J

Citations:

[2012] UKEAT 0033 – 11 – 2305

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462305

Conway v Community Options Ltd: EAT 6 Jul 2012

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Striking-out/dismissal
Exceptional case in which, on the undisputed facts, Employment Judge was entitled to strike out unfair dismissal and disability claims. Anyanwu (HL), Ezsias (CA) and Tayside (CS) considered.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0034 – 12 – 0607

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462310

Beaver Management Services Ltd v Acheson: EAT 14 Jun 2012

EAT TRADE UNION RIGHTS
Action short of dismissal
Dismissal
Whether site manager acting as agent for Respondent before Employment Tribunal when he withdrew an earlier offer of employment on trade union grounds. He was. Employer appeal dismissed.
Whether after Claimant was subsequently employed his dismissal for redundancy was automatically unfair. ET entitled to hold it was not. Claimant’s cross-appeal dismissed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0268 – 11 – 1406

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462309

Labinjo v The University of Salford: EAT 8 May 2012

EAT PRACTICE AND PROCEDURE
Deposit Order – upheld.
Striking out order – discharged: striking out the claim was a disproportionate sanction, given the nature of the underlying order.
Refusal of permission to amend – upheld on different grounds.
Order for disclosure of privileged documents – discharged. Focus should have been on legal professional privilege rather than ‘without prejudice’ privilege.

Judges:

Richardson J

Citations:

[2012] UKEAT 0618 – 11 – 0805

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462307

Ogedegbe v Stag Security Serrvice Ltd: EAT 14 May 2012

EAT REVIEW
The Claimant applied for a review of a judgment dated 2 November 2011, principally on the grounds of fresh evidence. The Employment Judge refused the application, and in any event refused to extend time for making it: see rule 35(1) and (3). For the most part his decision is upheld. However he refused one aspect of the application on the basis that the Claimant had supported it with forged documents. In this respect alone, the appeal is allowed: it was not appropriate, upon preliminary consideration of an application under rule 35(3), for the Employment Judge to decide on paper a disputed question of fact as to whether documents were forged.

Judges:

Richardson J

Citations:

[2012] UKEAT 0001 – 12 – 1405

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462308

Epem Ltd v Huggins: EAT 21 May 2012

EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Respondent’s ET3 struck out for failure to comply with an unless order. No judgment entered against the Respondent. Employment Tribunal refused to permit Respondent to have order reviewed but applied rule 34 of ET Rules of Procedure. Also, applying rule 9 Employment Tribunal refused to permit Respondent to participate in remedy hearing; Employment Tribunal’s attention not drawn to North Tyneside Primary Care Trust v Aynsley and Ors [2009] ICR 1333 nor D and H Travel Ltd v Foster [2006] ICR 1537.
Employment Tribunal went on to hear the Claimant’s claim for unfair dismissal unopposed and enter judgment in her favour.
The effect of a strike-out of an ET3 (following Underhill J in Aynsley) was to be equated with the case of failure to present an ET3 within time, or of rejection of the ET3 by the Employment Tribunal so that rule 9 of ET Rules of Procedure applied and the Respondent was not permitted to participate further; however this did not apply in appropriate circumstances to participating in the remedy hearing; Foster applied.
The Respondent might also apply for a review of the strike-out under rule 10 of the ET Rules of Procedure. The principles applicable to such an application were similar to those relating to applications under rule 34.
On the particular facts of the case, the appeal relating to the application to review the judgment of the Employment Tribunal was refused but the application to participate in the remedy hearing was remitted for further consideration by a new constitution of the Employment Tribunal.

Judges:

Serota QC J

Citations:

[2012] UKEAT 0019 – 12 – 2105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.462306

Erny v Daimler AG: ECJ 28 Jun 2012

ECJ Freedom of movement for workers – Article 45 TFEU – Regulation (EEC) No 1612/68 – Article 7(4) – Principle of non-discrimination – Top-up amount on wages paid to workers placed on a scheme of part-time work prior to retirement – Cross-border workers subject to income tax in the Member State of residence – Notional taking into account of the tax on wages of the Member State of employment

Judges:

JN Cunha Rodrigues P

Citations:

C-172/11, [2012] EUECJ C-172/11, [2014] EUECJ C-172/11

Links:

Bailii, Bailii

European, Employment

Updated: 03 November 2022; Ref: scu.461900

Pipecoil Technology Ltd v Heathcote: EAT 18 May 2012

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Mitigation of loss
Polkey deduction
Appeal against decision of unfair dismissal and compensatory award. Cross-appeal against the level of the compensatory award.
Two grounds of appeal succeeded: (1) Employment Tribunal failed to deal with the Polkey issue that was clearly before it; (2) ET misapplied law on failure to mitigate – failed to have regard to ERA, section 123(4).
Other six grounds, which included misapplication of Burchell test, failed.
Cross-appeal that ET failed to increase award pursuant to TULR(C)A, section 207A failed. No obligation on ET to deal with point of their own motion.
Case remitted to same ET to decide Polkey issue and mitigation of loss issue on basis of evidence that was before ET.

Judges:

Supperstone J

Citations:

[2012] UKEAT 0432 – 11 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Damages

Updated: 03 November 2022; Ref: scu.461859

R and M Gaskarth v Campbell: EAT 22 May 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal impermissibly substituted its own views for those of the Respondent, rather than considering whether the Respondent’s dismissal of the Claimant was within band of reasonable responses.

Judges:

Serota QC

Citations:

[2012] UKEAT 0008 – 12 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461860

Tandem Bars Ltd v Pilloni: EAT 21 May 2012

EAT UNFAIR DISMISSAL – Mitigation of loss
The Employment Tribunal failed to assess whether the steps taken by the Respondent employee were such as would have been taken by a reasonable employee.
Procedural Irregularity
The Employment Tribunal awarded the maximum uplift of 25% pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended without giving the Appellant any opportunity to make submissions on the matter.
In respect of both errors the matter was remitted to the same Employment Tribunal for re-hearing on those points.

Judges:

Hand QC J

Citations:

[2012] UKEAT 0050 – 12 – 2105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461863

Shaw v B and W Group Ltd: EAT 17 May 2012

EAT CONTRACT OF EMPLOYMENT
Wrongful dismissal
Damages for breach of contract
The Claimant’s contract of employment provided that he might be summarily dismissed for due cause. The Respondent summarily dismissed him for having committed conduct that might be classified as gross misconduct. The Employment Tribunal found that the Claimant had been dismissed for due cause because the Respondent employer had reasonably believed that he was guilty of serious misconduct. The Respondent did not attempt to prove that he had in fact committed gross misconduct, nor did the Employment Tribunal find that he had.
The Employment Appeal Tribunal concluded that the Employment Tribunal had misdirected itself and that in cases of wrongful as opposed to unfair dismissal it was necessary for the Respondent to prove that the Claimant had actually committed a repudiatory breach of contract. Reasonable belief in guilt was irrelevant in cases of wrongful dismissal.
Case remitted to the same Employment Tribunal for rehearing.

Judges:

Serota QC J

Citations:

[2012] UKEAT 0583 – 11 – 1705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461862

Croce v Centrewest London (Buses) Ltd and Others: EAT 29 May 2012

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
After several attempts to agree upon a medical expert to report upon the day to day effects of Claimant’s alleged disability, C failed to attend an appointment he had agreed to go to. He claimed he was not well enough. When ordered to produce evidence of this (eventually by means of an unless order) he did not do so, and his claim stood struck out. He sought to appeal the subsequent refusal of his application for relief from sanction. It was held that the Employment Judge could not be shown to be in error of law.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0074 – 12 – 2905

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461854

Freedman v Career Energy Consultancy Services Ltd: EAT 8 May 2012

EAT TRANSFER OF UNDERTAKINGS – Transfer
CONTRACT OF EMPLOYMENT – Whether established
Employment Judge clearly wrong in failing to find that Claimant had continuous service by reason of a TUPE transfer and that he remained an employee of the Respondent. Case remitted to Employment Tribunal to determine merits of claims for unfair dismissal and holiday pay, and to determine compensation if appropriate.

Judges:

Serota QC J

Citations:

[2012] UKEAT 0519 – 11 – 0805

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461855

Prospects for People With Learning Difficulties v Harris: EAT 27 Apr 2012

EAT HARASSMENT
UNFAIR DISMISSAL – Reasonableness of dismissal
Harassment (Disability Discrimination Act 1995, section 3B) and unfair dismissal. Appeal on grounds that Tribunal’s reasoning perverse and/or in disregard of its own findings. Appeal dismissed.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0612 – 11 – 2704

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 3B

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.461853

British Telecommunications Plc v Daniels: EAT 16 Apr 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal upheld the employer’s case on BHS v Burchell (despite wrongly imposing the burden of proof on it) but found the gross misconduct dismissal unfair under Iceland for this global employer did not take up the claim that, as the Claimant had a history of mental illness, occupational health advice be sought. Applying Fuller, Bowater and Arriva the appeal was dismissed.

Judges:

McMullen QC

Citations:

[2012] UKEAT 0554 – 11 – 1604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461852

Chhabra v West London Mental Health NHS: QBD 1 Jun 2012

The claimant, a consultant forensic psychiatrist sought to restrain the defendants from going ahead with disciplinary proceedings as to alleged breaches of patient confidentiality.
Held: The application succeeded. The complaint was properly as to misconduct, and not capacity, and the proposed method of investigation was inappropriate.

Judges:

McMullen QC J

Citations:

[2012] EWHC 1735 (QB)

Links:

Bailii

Citing:

Cited – Sarkar v West London Mental Health NHS Trust CA 19-Mar-2010
The doctor had been summarily dismissed for gross misconduct. He now appealed against the EAT’s reversal of the finding of unfair dismissal. The original procedure adopted was appropriate to a lesser level of misconduct, but the employer had later . .

Cited by:

Appeal from – West London Mental Health NHS Trust v Chhabra CA 25-Jan-2013
The Trust appealed against a decision that its procedures in seeking to discipline the respondent consultant forensic psychiatrist were wrongly applied and the associated injunction.
Held: The appeal succeeded. The conduct complained of was of . .
At first instance – West London Mental Health NHS Trust v Chhabra SC 18-Dec-2013
The trust sought to begin disciplinary proceedings against the claimant, a consultant forensic psychologist alleging gross misconduct. She was said to have left confidential patient records on a train.
Held: Gross misconduct should be conduct . .
Lists of cited by and citing cases may be incomplete.

Information, Health Professions, Employment

Updated: 03 November 2022; Ref: scu.461888

Packman (T/A Packman Lucas Associates) v Fauchon: EAT 16 May 2012

EAT REDUNDANCY – Definition
A contention that where an employee was dismissed in consequence of a downturn of business, and the introduction of new accounting software, both of which caused a lessening of the requirement of the employer for employees to do book-keeping work (in this case an employee, since only one did that work) there was no dismissal by reason of redundancy, because the EAT decision of Aylward required a reduction in headcount as a necessary factor, was rejected. Aylward would not be followed, since it was inconsistent with previous Court of Appeal observations, and had erroneously relied upon a misunderstanding of observations of HHJ Peter Clark in Safeway v Burrell.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0017 – 12 – 1605

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461858

Scott v Northumbria Probation Board: EAT 22 May 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal failed properly to consider whether a decision by an internal appellate body, which rejected a major plank in the management case as argued before the disciplinary hearing, nonetheless to uphold the decision of the disciplinary body to dismiss the Appellant, was sufficient to make the dismissal fair.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0451 – 11 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 November 2022; Ref: scu.461861

Stekel v Ellice: ChD 1973

The question of whether persons are in partnership is a question of substance and not form: the label which the parties choose to give to their relationship is not determinative.
Megarry J considered the status of a salaried partner: ‘Certain aspects of a salaried partnership are not disputed. The term ‘salaried partner’ is not a term of art, and to some extent it may be said to be a contradiction in terms. However, it is a convenient expression which is widely used to denote a person who is held out to the world as being a partner, with his name appearing as a partner on the notepaper of the firm and so on. At the same time, he receives a salary as remuneration, rather than a share of the profits, though he may, in addition to his salary, receive some bonus or other sum of money dependent upon the profits. Quoad the outside world it often will matter little whether a man is a full partner or a salaried partner; for a salaried partner is held out as being a partner, and the partners will be liable for his acts accordingly. But within the partnership it may be important to know whether a salaried partner is truly to be classified as a mere employee, or as a partner.
I have found it impossible to deduce any real rule from the authorities before me, and I think that, while paying due regard to those authorities, I must look at the matter on principle. It seems to me impossible to say that as a matter of law a salaried partner is or is not necessarily a partner in the true sense. He may or may not be a partner, depending on the facts. What must be done, I think, is to look at the substance of the relationship between the parties, and there is ample authority for saying that the question whether or not there is a partnership depends on what the true relationship is, and not on any mere label attached to that relationship. A relationship that is plainly not a partnership is no more made into a partnership by calling it one than a relationship that is plainly a partnership is prevented from being one by a clause negativing partnership. If, then, there is a plain contract of master and servant, and the only qualification of that relationship is that the servant is being held out as being a partner, the name ‘salaried partner’ seems perfectly apt for him, and yet he will be no partner in relation to the members of the firm. At the other extreme, there may be a full partnership deed under which all the partners save one take a share of the profits, with that one being paid a fixed salary not dependent on profits. Again, ‘salaried partner’ seems to me an apt description of that one. I do not see why he should not be a true partner at all events if he is entitled to share in the profits of a winding-up .’

Judges:

Megarry J

Citations:

[1973] 1 WLR 191

Statutes:

Partnership Act 1890

Jurisdiction:

England and Wales

Cited by:

Cited – Tiffin v Lester Aldridge Llp CA 1-Feb-2012
The claimant had been a partner with the respondent firm. He appealed against the rejection of his claim for unfair dsmissal on the basis that he had not been an employee.
Held: The appeal failed. Had this been an unlimited partnership under . .
Lists of cited by and citing cases may be incomplete.

Company, Employment

Updated: 03 November 2022; Ref: scu.450546

Connolly v Sellers Arenascene Ltd: EAT 16 Feb 1995

The appellant challenged rejection of his claim of unfair dismissal. The Tribunal found that he had not been continuously employed by the respondent for two years. He had argued that there had been a transfer of undertaking by which he had been employed.

Judges:

Mummery P J

Citations:

[1995] UKEAT 501 – 93 – 1602

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – G C Connolly v Sellers Arenascene Limited CA 17-Jan-1997
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 November 2022; Ref: scu.208914

Ayobiojo v London Borough of Lewisham: EAT 25 Jul 1995

Citations:

[1995] UKEAT 176 – 95 – 2507, [1995] UKEAT 534 – 95 – 2507

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 November 2022; Ref: scu.209220

Spencer v Sillitoe, Fujitsu Services Limited (Formerly ICL): QBD 9 Jul 2003

Judges:

The Honourable Mr Justice Eady

Citations:

[2003] EWHC 1651 QB

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Spencer v Sillitoe and Another CA 20-May-2002
Application for leave to appeal – summary dismissal of claim of defamation – alleged remarks by co-worker to senior employee. Leave given
A litigant should not be deprived of a hearing merely because the case seems to a judge implausible on . .

Cited by:

Cited – Spencer v Sillitoe and Another CA 20-May-2002
Application for leave to appeal – summary dismissal of claim of defamation – alleged remarks by co-worker to senior employee. Leave given
A litigant should not be deprived of a hearing merely because the case seems to a judge implausible on . .
Lists of cited by and citing cases may be incomplete.

Employment, Defamation

Updated: 01 November 2022; Ref: scu.184777

Ali v Christian Salvesen Food Services Limited: CA 18 Oct 1996

A collective agreement freely and exhaustively negotiated with a Union was not to have an extra term implied. Waite LJ warned that such agreements should be concise and clear, so as to be readily understood by all who are concerned to operate it with the result that should any topic be left uncovered by an agreement of that kind, the natural inference would be that it was omitted advisedly.

Judges:

Lord Justice Waite Lord Justice Saville Lord Justice Otton

Citations:

Times 29-Oct-1996, Gazette 06-Nov-1996, [1996] EWCA Civ 763, [1997] 1 All ER 721

Jurisdiction:

England and Wales

Citing:

See also – Ali v Christian Salvesen Food Services Ltd EAT 19-Dec-1994
. .
Appeal from – Ali v Christian Salvesen Food Services Ltd EAT 9-Jun-1995
. .

Cited by:

Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 November 2022; Ref: scu.77731

VP v Cedefop (Civil Service – Request for Renewal of A Contract for An Indefinite Period – Judgment): ECFI 16 Dec 2020

Civil service – Members of the temporary staff – Request for renewal of a contract for an indefinite period – Decision not to renew – Manifest error of assessment – Right to be heard – Article 26 of the Staff Regulations – Liability – Material damage – Non-material damage

Citations:

T-187/18, [2020] EUECJ T-187/18

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 01 November 2022; Ref: scu.660758

Browne v Dawson: 1840

The master of a school had possession of the schoolroom for the purposes of his office, but was dismissed by the trustees for an alleged breach of the rules, and he gave up the room which was taken possession of by them and locked up. He returned on the next day, broke open the room, and held it for 11 days, at the end of which the trustees forcibly ejected him. He then claimed trespass, describing the premises as a room of the plaintiff. Plea in denial that it was not the room of plaintiff
Held: The plaintiff had not by his re-entry acquired possessionary rights against the trustees as wrongdoers, and they might set up the above facts in defence without having pleaded not possessed
The trustees of the free school had agreed rules for the governance of the school and the trustees called on those rules and produced them at the trial of the causes between them.
Held: They were admissible without having been stamped as an agreement

Citations:

(1840) 12 Ad and El 624, (1840) 4 Per and Dav 355, (1840) 113 ER 950

Jurisdiction:

England and Wales

Employment, Torts – Other, Stamp Duty

Updated: 01 November 2022; Ref: scu.649122

Arango Jaramillo And Others v EIB: ECFI 19 Jun 2012

ECFI Appeal – Civil service – Staff of the EIB – Pensions – Contribution to the pension scheme – Rejection of the appeal in the first instance as manifestly inadmissible – Limitation of Actions – Delay – Reasonable time

Citations:

T-234/11, [2012] EUECJ T-234/11 – P

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Opinion – Arango Jaramillo And Others v EIB ECJ 9-Jul-2013
ECJ Appeal – Civil service – Staff of the EIB – Review of the judgment of the General Court – Action at first instance dismissed as inadmissible – Pensions – Increase in the contribution to the pension scheme – . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 November 2022; Ref: scu.460556

A and J Menswear (Retail) Ltd v Jacobs: EAT 30 Nov 2011

EAT UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT
Notice and pay in lieu
Damages for breach of contract
Whether Employment Judge entitled to conclude (a) that wages had not been paid, unlawfully and (b) that Claimant gave 1 month’s notice of termination during which period she ought to have been paid.
Held: on material before him, Employment Judge reached permissible conclusions. Appeal dismissed.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0375 – 11 – 3011

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 November 2022; Ref: scu.460379

Franks v The Board of Governors for Churchmead Church of England Voluntary Assisted School and Others: EAT 20 May 2011

EAT Claimant’s time for appealing against an Order of the Deputy Registrar extended by reason of the Claimant’s inability to comply with the 5 day time limit. The Claimant is disabled and suffers from a multiplicity of debilitating conditions, which on the medical evidence, substantially impeded her ability to comply with the time limits.

Judges:

serota QC J

Citations:

[2011] UKEAT 0708 – 10 – 2005

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 November 2022; Ref: scu.460378

Arriva Trains Wales v Conant: EAT 22 Nov 2011

EAT UNFAIR DISMISSAL – Reasonableness of dimissal
These three cases were heard together. In two of the cases (Arriva Trains Wales v Ms F Conant and Yellow Pages Sales Limited v Mr R Walsh) the issue is whether the Employment Tribunal erred in law by substituting its own views on the fairness of the dismissal for those of the employer. The majority decision of the Employment Tribunal in those cases was that the Claimant was unfairly dismissed. In the third case (Mrs S Harber v Kelly Residential Limited t/a Portland Nursing Home) the Claimant appealed against the decision of an Employment Tribunal that she was fairly dismissed.
The approach to be adopted by an Employment Tribunal and also by appellate bodies when reviewing the decision of an employer who has dismissed an employee for misconduct has been considered by the Court of Appeal on a number of occasions, most recently in Brent London Borough Council v Fuller [2011] ICR 806.
Applying the principles set out in Fuller the appeals in these three cases all fail.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0043 – 11 – 2211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 November 2022; Ref: scu.460380

Secretary of State for Justice (Sued As National Offenders Management Service) v Bowling: EAT 29 Nov 2011

EAT EQUAL PAY – Material factor defence
Claimant and her male comparator started in the same job at about the same time but he was placed two points above her on the applicable incremental scale because of his substantially greater skill and experience – Tribunal accepted that that constituted a material factor other than the difference in sex which explained the pay differential in their first year but held that it did not do so in the following year when the Claimant had had sufficient experience of the job to ‘catch up’, so that she was entitled to be paid the same as her comparator in that year and thenceforward.
Held, allowing the appeal, that the comparator’s additional skills and experience on recruitment constituted a non-discriminatory explanation of the differential not only in the first year but in subsequent years, by reason of the operation of the incremental scale – Glasgow City Council v Marshall [2000] ICR 196 followed – Benveniste v University of Southampton [1989] ICR 617 distinguished.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0279 – 11 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 November 2022; Ref: scu.460383

University of Stirling v University and College Union: EAT 8 Nov 2011

EAT REDUNDANCY
Definition
Collective consultation and information
TULRA ss.188 and 195. Collective consultations. Fixed term contracts. Dismissals for reason that employees under fixed term contracts had entered into those contracts accepting that they were finite and would come to an end at a particular date or at the end of a specified project. On appeal, EAT held that Employment Tribunal had been wrong to conclude that s.188 applied. On the facts, the employees had been dismissed for a reason relating to them as individuals.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0001 – 11 – 0811, [2012] ICR 803, [2012] IRLR 266, [2012] ELR 398

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Cited by:

Appeal from – University College Union v The University of Stirling SCS 14-Jan-2014
(Extra Division Inner House) The University was considering making redudancies. The Union argued that when considering the level of consultation needed, the number of qualifying employees should include those on limited term contracts, and ‘This in . .
At EAT – University and College Union v The University of Stirling SC 29-Apr-2015
The University needed to reduce its staff. They and the Union disputed whether research assistants on limited term contracts would simply cease to be employd as their terms concluded, or were entitled to be made redudant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 01 November 2022; Ref: scu.460384

Matinpour v Rotherham Metropolitan Borough Council: EAT 28 Nov 2011

EAT UNFAIR DISMISSAL
DISABILITY DISCRIMINATION
The Employment Tribunal misdirected itself as to the correct tests in law it had to apply for (a) direct disability discrimination (b) reasonable adjustments. Also a failure to consider the reasonableness of dismissal. Case remitted to same Employment Tribunal to reconsider its findings in the light of this Judgment.

Judges:

Birtles J

Citations:

[2011] UKEAT 0406 – 11 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 November 2022; Ref: scu.460382

Horsfall v Calderdale and Huddersfield NHS Foundation: EAT 24 Nov 2011

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
While the Employment Judge made an unguarded comment immediately before the Claimant’s cross-examination, it did not in the context of the proceedings as a whole give rise to apparent bias. 35 grounds of appeal on perversity, and reasons challenges, were dismissed.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0292 – 11 – 2411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 November 2022; Ref: scu.460381

Tyrolean Airways Tiroler Luftfahrt Gesellschaft v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH,: ECJ 7 Jun 2012

ECJ Directive 2000/78/EC – Equal treatment in employment and occupation – Difference of treatment on grounds of age – Charter of Fundamental Rights of the European Union – General principles of European Union law – Collective agreement – Failure to take into account, for the grading on the salary scale of cabin crew members of an airline, professional experience acquired with another airline belonging to the same group of companies – Contract clause

Citations:

C-132/11, [2012] EUECJ C-132/11

Links:

Bailii

Statutes:

Directive 2000/78/EC

Jurisdiction:

European

Discrimination, Human Rights, Employment

Updated: 01 November 2022; Ref: scu.460220

Kenneth Cobley v Forward Technology Industries Plc: CA 14 May 2003

The claimant had been chief executive and a director of the respondent for many years, but was dismissed upon it being taken over. His contract of employment as chief executive provided that it was to be coterminous with his appointment as director.
Held: The tribunal were not wrong in law in identifying the reason and holding that it was ‘some other substantial reason’ justifying the dismissal. It could not be said that the desire of the new shareholders of a company to create a new board of directors was not a substantial reason justifying the dismissal of an incumbent chief executive consequent on his losing office as a director. Nor was the process of dismissal unfair.

Judges:

Lord Justice Aldous Lord Justice Mummery Lord Justice Rix

Citations:

[2003] EWCA Civ 646, Times 15-May-2003, Gazette 17-Jul-2003, [2003] ICR 1050, [2003] IRLR 706

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(1)

Jurisdiction:

England and Wales

Citing:

Cited – Hollister v National Farmers Union (NFU) CA 1979
The correct approach for the Industrial Tribunal looking at a company re-organisation is to make a finding as to the advantages to the employers of a proposed re-organisation and whether it was reasonable for them to implement it by terminating . .
Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Cited – Priddle v Dibble EAT 1978
The reasons available to an employer under section 98(1)(b) are not limited to reasons of the same kind as those spelt out in section 98(2), nor do they require consideration of the fairness of the dismissal, which falls to be considered under . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2022; Ref: scu.182042

Rock Refrigeration Limited v Jones and Seward Refrigeration Limited: CA 10 Oct 1996

The claimant sought to enforce a post employment restrictive covenant given by the defendant. The defendant replied that the clause was too widely framed and was unreasonable since it applied to a temination of his contract ‘howsoever occasioned’. The employer appealed the decision against it based on D -v- M.
Held: It was necessary to distinguish between the arguments regarding covenants in restraint of trade and the situation here where the issue was as to unfairness. The law against restraint renders invalid a covenant which would otherwise be valid. Phrases like ‘for any reason whatsoever’ are themselves fatal to the enforceability of such covenants.

Judges:

Simon Brown LJ, Morritt LJ, Phillips LJ

Citations:

Gazette 06-Nov-1996, Times 17-Oct-1996, [1997] ICR 938, [1996] EWCA Civ 694, [1997] 1 All ER 1, [1996] IRLR 675

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – General Billposting Company Limited v Atkinson HL 1908
The employers had dismissed their employee manager ‘in deliberate disregard of the terms of the contract’ in such a way as ‘to evince an intention no longer to be bound by the contract.’ The manager had successfully brought an action for wrongful . .
Cited – D v M QBD 18-Mar-1996
A post employment restrictive covenant was unreasonable where an employee was restricted even after the wrongful termination of his employment by the company. Laws J set out the appropriate principle: ‘A restrictive covenant, having effect after the . .
Cited – Briggs v Oates 1990
A former assistant solicitor, whose contract had been brought to an end by the dissolution of the partnership which had employed him, was held to be bound by a restrictive provision expressed to operate once the agreement ‘shall have determined for . .
Cited – Living Design (Home Improvements) Ltd v Davidson OHCS 1994
A post employment restrictive covenant operated for a period of six months after the end of his employment ‘however that comes about and whether lawful or not.’
Held: Lord Coulsfield found this wholly unreasonable. . .
Cited – JA Mont (UK) Limited v Mills 1993
The courts should not too readily construe restrictive covenants, ex facie too wide, as being subject to implicit limitations since: ‘Thus would be perpetuated the long-recognised vice of ex-employees being left subject to apparently excessive . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – PR Consultants Scotland Ltd v Mann OHCS 1996
The house considered a clause imposing a post employment restrictive covenant which was to operate for twelve months ‘following the termination of [the employee’s] employment hereunder (howsoever caused).’
Held: Lord Caplan said: ‘With regard . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2022; Ref: scu.140561

Mann and Others v Secretary of State for Employment: CA 30 Sep 1996

LMA An Industrial tribunal does not have the jurisdiction to entertain Francovich state liability for damages actions – these must be heard by the ordinary courts.

Citations:

[1997] IRLR 21, [1996] EWCA Civ 617

Jurisdiction:

England and Wales

Cited by:

Appeal from – Mann and others v Secretary of State for Employment HL 8-Jul-1999
When acting effectively as a guarantor of a company’s obligations to its employees upon insolvency in paying unpaid wages, the Secretary of State for Employment was entitled to set off against those payments, payments made by way of compensation by . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 31 October 2022; Ref: scu.140484

Hawes and Curtis Ltd v Arfan and Another: EAT 1 Jun 2012

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Claimants were summarily dismissed with immediate effect on 5 October 2010. They appealed; and while their appeals were otherwise unsuccessful they were told that the date of termination of their employment would be the date of the appeal (4 November); and they were paid until that date. By a majority the Tribunal held that the effective date of termination was 4 November. The Respondent appealed, arguing that the effective date of dismissal for the purposes of section 97(1) of the Employment Rights Act 1996 crystallised at the date of summary dismissal.
Held – Appeal dismissed. The Tribunal was entitled to take into account what took place on appeal. Gisda Cyf v Barratt [2010] ICR 1475 and Fitzgerald v University of Kent at Canterbury [2004] ICR 737 considered and applied.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0229 – 12 – 0106, [2012] ICR 1244

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459942

Westminster City Council v Sohal: EAT 1 Jun 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Ill-health dismissal. Whether fair at point of dismissal (subsequent appeal immaterial). Employment Tribunal entitled to conclude that it was (subject to future Polkey issue at the remedy stage) based on their finding, having heard the dismissing officer, that her reason for dismissal extended beyond ill-health to perceived performance issues on which the Claimant was not given an opportunity to respond.
Approach to s98(4) ERA appeals in Bowater (CA) applied.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0637 – 11 – 0106

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459943

Fairbank v Care Management Group: EAT 20 Mar 2012

EAT PRACTICE AND PROCEDURE
Application/claim
Case management
The ET1 in both cases was settled by the same firm of solicitors. The ET1 in one case ran to 27 pages. The other was also extremely long. An Employment Judge gave a direction in each case that the Claimant should reduce their ET1 to one side of A4 paper. The Appellants objected that this would require them to omit claims and other important material.
The Particulars of Claim seem to have been witness statements. Such a practice is not helpful and does not further the overriding objective. The ET Rules state what should be in an ET1. Parties need to specify the claims they are making: Chapman v Simon. Without being prescriptive, the essentials to be pleaded are likely to be: (1) the legal basis for the claim: unfair dismissal, direct race discrimination etc; (2) what the act or omission complained of was; (3) who carried out the act; (4) when the act or omission complained of occurred; (5) why complaint is made of the act/omission; (6) anything affecting remedy.
It is an error of law/perverse for an EJ to limit what there is in an ET1. If some paragraphs set out irrelevant matters or are embarrassing (in the legal sense) to plead to, there could be an application to strike out the offending paragraphs. At the end of a hearing question of costs may arise if the ET1 (or 3) is unreasonably prolix leading to waste of costs. The appropriate way of dealing with prolix pleadings is by identifying issues at a case management discussion (see Mummery LJ in Hendricks at para 53). The issues must not be over elaborate or numerous (Mummery LJ in St Christopher’s Fellowship v Walters-Ennis [2012] EWCA Civ 921). Appeals allowed; directions given for CMDs.

Judges:

Slade J

Citations:

[2012] UKEAT 0139 – 12 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459915