The employment judge erred in rejecting the claim on the basis that ‘the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation certificate relates’ (rule 12(1)(f) of schedule 1 to the 2013 Regulations), as she failed to consider whether the claimant had ‘made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim’ (rule 12(2A)).
Rule 12(2A) is a ‘rescue provision’, designed to prevent claims from being rejected for technical failures to use the correct name of the respondent in the early conciliation certificate and the ET1. In every case where rule 12(1)(f) may apply, the employment judge should ask him or herself the question as to whether there is a ‘minor error’ in relation to a name or address and whether it would or would not ‘be in the interests of justice to reject the claim.
In the instant case, there was material available to the employment tribunal to suggest, or indicate, that a ‘minor error’ could have been made.

Clive Sheldon QC (Deputy Judge of the High Court)
[2021] UKEAT 2020-000752
Bailii
England and Wales

Employment

Updated: 22 January 2022; Ref: scu.670762

EAT Contract of Employment – Breach of Contract
EAT Contract of Employment – Breach of Contract.

The Honourable Mr Justice Morison (P)
EAT/1236/95, EAT/962/95, [1999] UKEAT 962 – 95 – 2308, EAT/962/95 EAT/1236/95 EAT/
Bailii, EAT
England and Wales
Citing:
See Also – Riniker v University College London EAT 12-Dec-1995
. .
See Also – Riniker v University College London EAT 5-Feb-1997
. .
See Also – Regina v Lord Chancellor and others ex parte Riniker CA 28-Feb-1997
The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal . .
See Also – Riniker v University College London CA 25-Nov-1998
. .
Cited – Riniker v University College London CA 31-Mar-1999
The writ office of the High Court unjustifiably rejected a writ which the plaintiff asked to be issued and did not issue it until the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be . .

Cited by:
Appeal from – Riniker v University College London (Practice Note) CA 5-Apr-2001
The Employment Appeal Tribunal does not have jurisdiction to hear an appeal which does not set out to disturb any part of the order made by the original tribunal. There is no inherent power in the Court of Appeal to bypass the prohibition in . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 January 2022; Ref: scu.171681

[2000] UKEAT 671 – 00 – 2106
Bailii
England and Wales

Employment

Updated: 21 January 2022; Ref: scu.265263

His Honour Judge D M Levy QC
[1997] UKEAT 95 – 97 – 0905
Bailii
England and Wales

Employment

Updated: 21 January 2022; Ref: scu.207472

[1997] UKEAT 1363 – 96 – 1402
Bailii
England and Wales

Employment

Updated: 21 January 2022; Ref: scu.207236

EAT Debarred – Unfair Dismissal: Constructive Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal did not err in determining the claim for failing to make reasonable adjustments. They did not reach their decision on a different basis from that which the Claimant raised with her employer and set out in her Particulars of Claim. She had complained that ‘heavy lifting’ exacerbated her medical condition. This is the basis on which the Tribunal reached their decision on failure to make reasonable adjustments. The Judgment did not show, as was contended by the Respondent, that they based their decision on ‘general physical exertion’. Appeal from the decision under section 20 Equality Act 2010 and the related constructive dismissal claim dismissed.

Slade DBE J
[2016] UKEAT 0239 – 15 – 2106
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567943

EAT Jurisdictional Points: Extension of Time: Just and Equitable – In an appeal against an Order of the Registrar of the EAT to refuse an application for an extension of time to lodge an appeal, there is no restriction on the material that can be considered by the EAT Judge. Any material properly before the Judge at the appeal can be considered, if relevant to the issue of the merits of the application to extend time to lodge the appeal.
In a case where the Employment Tribunal found that the Claimant and his representative had deliberately and persistently failed to comply with Orders and the reasons given for extension of time to lodge an appeal had altered over time and were inconsistent with the Claimant’s own position, the irresistible conclusion was that the application for extension represented the type of questionable tactics and procedural abuse cautioned against in United Arab Emirates v Abdelghafar and Abbas and extension of time to appeal would not be granted.

Lady Wis
[2016] UKEAT 0919 – 15 – 0408
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567947

EAT Practice and Procedure: Striking-Out/Dismissal – 1. The Employment Tribunal found that the manner in which the proceedings were conducted by the Respondent was scandalous and unreasonable on the basis that the Respondent pursued a ‘false defence’ to the unlawful disability discrimination claim and failed to comply with its duty of disclosure, despite being represented throughout. The Tribunal struck out the Respondent’s defence and gave judgment in favour of the Claimant.
2. The Tribunal’s conclusion that the Respondent put forward a false defence was based on a fundamental misunderstanding of the case and was reached without any consideration of the Claimant’s pleaded case. In fact, the clarification or amendment sought by the Respondent to its case was to bring it in line with the case advanced throughout by the Claimant. Moreover, there was no basis for a conclusion that there had been any deliberate non-disclosure of relevant documents.
3. To the extent that the Tribunal addressed the question whether a fair trial remained possible, its conclusion that a fair trial was no longer possible was based on the fundamental misunderstanding of the case. The clarification of the response considered necessary by the Respondent and/or the Tribunal was not capable of being viewed as significantly different. Nor was an adjournment inevitable. Had the Tribunal understood and identified the PCP relied on by the Claimant, it would inevitably have concluded that the amendment, whilst obviously relevant, was capable of being dealt with by the Claimant given that it coincided exactly with the Claimant’s own case. Further, there was no reason why disclosure could not be dealt with there and then; and in the absence of exploring this avenue as an alternative to the draconian sanction of a strike out the Tribunal was not entitled to conclude that a fair trial was no longer possible.
4. The Tribunal did not address the proportionality of the sanction of strike out in any event. This was an error of law. The deficiency in the pleading was capable of being rectified and the missing document capable of prompt reduction. This was not a case where the consequences of the Respondent’s failings were not capable of being remedied. Strike out was a disproportionate sanction in this case.
5. The appeal was accordingly allowed and the Tribunal’s decision on liability, remedy and the costs awarded against the Respondent all set aside.

Simpler DBE P J
[2016] UKEAT 0096 – 16 – 1207
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567944

EAT Practice and Procedure: Striking-Out/Dismissal – The Employment Tribunal erred in law in striking out claims pursued by the Claimant on the basis that they had no reasonable prospect of success and/or because the Claimant’s conduct of the proceedings was unreasonable.
There was a dispute of fact at the heart of the claim that was not capable of fair resolution without a hearing. Moreover, the finding that the Claimant’s unreasonable conduct justified striking out of his claim was not sustainable where the Employment Tribunal had no basis for concluding that a fair trial was no longer possible.
The case was remitted to the same Employment Tribunal for consideration of whether a deposit order should be made.

Simler DBE P J
[2016] UKEAT 0109 – 16 – 0707
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567946

EAT Sex Discrimination : Comparison – Justification
The Employment Tribunal did not err in deciding that a provision criterion or practice (‘PCP’) which required train drivers employed by the First Respondent to work at least 50% of their roster and on a number of Saturdays put women at a particular disadvantage. They correctly based their decision on the relative numbers and proportions of the First Respondent’s women and men train drivers who could and could not comply with the PCP. The more general observations about why they thought that few women applied to the First Respondent to become train drivers and on women’s caring responsibilities did not vitiate their conclusion which was based upon figures and statistics of train drivers in post. Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 applied.
The Employment Tribunal did not err in holding that Equality Act 2010 section 19(2)(c) was satisfied as the PCP had put the Claimant at a particular disadvantage. The statutory test of that provision was different from its predecessor in Sex Discrimination Act 1975 section 1(1)(b)(iii).
The Employment Tribunal erred in considering Equality Act section 19(2)(d). They failed to weigh the legitimate aims of the First Respondent against the discriminatory impact of the PCP rather than their own.
Appeal allowed. Claim remitted to an Employment Tribunal to consider the justification defence.

Slade DBE J
[2016] UKEAT 0331 – 15 – 2807
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567894

EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – The Claimant was dismissed for gross misconduct; but on appeal pursuant to a contractual disciplinary and appeal procedure the decision was revoked. The Employment Judge was not referred to Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735 EAT; she found that the dismissal was not revoked by the appeal. Applying the principles in Salmon, the Claimant’s dismissal was revoked and his employment re-instated. Appeal allowed.

David Richardson HHJ
[2016] UKEAT 0348 – 15 – 0106
Bailii
England and Wales
Citing:
Cited – Salmon v Castlebeck Care (Teesdale) Ltd and Others EAT 10-Dec-2014
EAT Transfer of Undertakings – Unfair Dismissal – The Claimant was dismissed prior to the transfer of the undertaking in which she worked. An appeal against that Decision was held by the Transferee. The outcome . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 January 2022; Ref: scu.567890

EAT Victimisation Discrimination : Whistleblowing – The Tribunal erred in its approach to whether the Claimant (a nurse supplied by an agency to work at an end user) is a worker within the meaning of s.43K(1)(a)(ii) of the ERA 1996. The Claimant is not precluded from relying on s.43K by her employment status under s.230(3) in relation to the agency, Tascor. Whether or not she is a worker under s.43K(1)(a) depends upon whether the Respondent end user (and not the Claimant) substantially determined the terms on which the Claimant was engaged to carry out work at the Respondent’s medical centre. It is not necessary for the Claimant to show that the Respondent determined any such terms to the same or a greater extent than Tascor did; merely that the Respondent substantially determined the terms on which she was engaged to do the work at the centre. If both the agency and the end user substantially determined the terms of her engagement, the fact that the Respondent substantially determined the terms of her engagement means that the Respondent is her ’employer’ for the purposes of s.43K(2)(a) ERA.

Simler DBE J P
[2016] UKEAT 0354 – 15 – 2107
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567893

EAT Unfair Dismissal: Reasonableness of Dismissal – Procedural fairness/automatically unfair dismissal
1. Conduct. The Claimant’s employment was governed by royal charter and statute as well as his contract of employment. The Respondent was entitled to dismiss only for good cause as defined in the statute which, so far as material, required it to prove ‘conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment’. The Employment Tribunal equated these words with the concept of gross misconduct. In applying section 98(4) of the Employment Rights Act 1996 it ought to have considered whether it was reasonable for the Respondent to find that the Claimant was guilty of ‘conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment’. Its reasoning showed that it did not do so.
2. Investigation. At a late stage in the preparation of an investigation report opinions favourable to the Claimant were excised from the report. The Employment Tribunal found that the report represented genuine conclusions after receiving honest and unbiased advice. But it remained the case that significant opinions favourable to the Claimant were excised from the report; and the Employment Tribunal ought to have asked whether the conclusions of the investigation were fully expressed in the report; if not why not; and whether it was reasonable to dismiss having regard to what was omitted in the final version of the report.
Appeal allowed.

David Richardson HHJ
[2016] UKEAT 0200 – 15 – 2107
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567891

Claim on transfer of undertaking as to loss of pension scheme membership.

Teare J
[2014] EWHC 290 (QB)
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.521395

[2019] EWCA Civ 5
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.632655

EAT Unfair Dismissal : Reasonableness of Dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Tribunal omitted to deal with issues 1.2.5 and 1.1.3 of the agreed list of issues. These issues raised the question whether the Respondent, by dismissing the Claimant without his entitlement to three months’ notice, had deprived him of the benefit of a redeployment procedure in respect of appointments two weeks after his dismissal; and if so whether applying section 98(4) the dismissal was fair. The Employment Appeal Tribunal was not in a position to say that there was only one possible outcome – remission was therefore required (see Jafri v Lincoln College [2014] ICR 920 CA) – remitted to the same Employment Tribunal if available.

David RichardsonHHJ
[2016] UKEAT 0038 – 15 – 1605
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567281

Harassment – DISABILITY DISCRIMINATION – Reasonable adjustments
Harassment related to disability. In considering whether two remarks were ‘related to’ the Claimant’s disability, the Employment Tribunal erred in law by focusing on the perception of the person who made the remark. Whether conduct is ‘related to’ a disability should be determined having regard to the evidence as a whole; the perception of the person who made the remark is not decisive.
Reasonable adjustments. The Employment Tribunal did not properly address one of the (many) issues for its determination: it drew a distinction which was not to be found in the issue, and it should have considered the issue as a whole. The Employment Tribunal dealt properly with other issues; in particular, having rejected on the facts a PCP alleged in one issue, it was not bound to consider another possible, closely related, PCP.

David Richardson HHJ
[2016] UKEAT 0033 – 15 – 2705
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567279

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair Dismissal – Fairness of Dismissal – Section 98(4) Employment Rights Act 1996
The ET found that the reason for the Claimant’s dismissal was his conduct on 24 October 2012. The Respondent had initially decided the sanction for this should be a final written warning. The decision to dismiss was made only after the dismissing manager had learned that the Claimant had been issued with a first written warning subsequent to the 24 October 2012 events, albeit that the warning itself related to his conduct (in particular his continued refusal to accept reasonable management instruction) preceding that date. The ET concluded that the dismissal had been fair.
The questions raised by the appeal were as follows:
(1) Had the ET ignored relevant matters in reaching its decision, specifically: (i) that the warning post-dated the conduct relied on for the dismissal (‘the timing point’); (ii) that there was an outstanding appeal against the warning that remained unresolved (‘the appeal point’); (iii) and that the Claimant was not given a further opportunity to make representations on this course of action (‘the natural justice point’)?
(2) Had the ET taken account of irrelevant matters, specifically its conclusion that it was unlikely that the Claimant’s appeal against the warning would have been successful in any event?
Held:
The Respondent accepted the ET had erred in considering the likely outcome of the Claimant’s appeal against the warning (this was a matter that could go to remedy, not liability). It was not suggested, however, that this error undermined the ET’s conclusion on fairness.
On the timing point, following the decision of the EAT (Lady Stacey presiding) in the case of Sweeney (deceased) v Strathclyde Fire Board UKEATS/0029/13/JW, a warning could be relevant even if given after the date of the events directly leading to the dismissal. Specifically, in this case, it was the substance of the matters with which that warning was concerned that had weighed with the Respondent. The ET was entitled to conclude that taking it into account did not mean that the decision fell outside the range of reasonable responses in this case.
Whilst an extant appeal against a warning would be a relevant matter, in this case the dismissing manager had reasonably believed the appeal was no longer being pursued. In the circumstances, the ET was entitled to conclude that the failure to take account of the ongoing challenge to the warning did not render the dismissal unfair.
On the natural justice ground, this was not a case which gave rise to a breach of process and resulting unfairness due to the involvement of others (as had occurred in cases such as Ramphal v Department for Transport UKEAT/0352/14/DA). There was, however, a more general point of natural justice that arose. Although the Claimant had been told that sanction would be considered only after findings had been made on the disciplinary allegations, he was not then advised of the significance that the warning had assumed (a new factor for the dismissing manager) or given the opportunity to make representations on that point. The fact that he was thereafter afforded a right of appeal did not answer the question whether the decision to dismiss was rendered unfair by this breach of natural justice. The ET’s failure to engage with this question meant that its decision was unsafe and could not stand.
Having permitted the parties to make further representations on disposal, no basis was identified by the Respondent on which a finding of unfair dismissal could arise given the failure to afford the Claimant natural justice in this regard. In the circumstances (and having due regard to the guidance laid down in Jafri v Lincoln College [2014] EWCA Civ 449), it was appropriate to substitute a finding of unfair dismissal. The parties were agreed that the mater should then be remitted to the same ET for consideration of remedy.

Eady QC HHJ
UKEAT/0105/15/BA
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 19 January 2022; Ref: scu.566676

EAT Victimisation Discrimination: Protected Disclosure – Appeal on perversity dismissed. Appeal allowed on detriment in protected disclosure and Judgment of Employment Appeal Tribunal in Cordant Security Ltd v Singh UKEAT/ 0144/15/LA followed and applied. Case remitted to the same Employment Tribunal to reconsider detriment.

Hand QC HHJ
[2015] UKEAT 0126 – 15 – 1412
Bailii
England and Wales

Employment

Updated: 19 January 2022; Ref: scu.566677

EAT Unfair Dismissal: Polkey Deduction – The Employment Tribunal decided that the Respondent had dismissed the Appellant unfairly due to lack of any consultation before making him redundant. There was no appeal (by way of cross-appeal) against the decision that the dismissal was unfair. The Tribunal decided, however, that the Appellant should receive no compensatory award because, if a fair procedure had been followed, he would have been dismissed by the same date in any event. The Appellant employee appealed against that decision.
The decision to reduce the compensatory award by 100 per cent was unsustainable in law. It was unsupported by any evaluation, based on evidence and with the burden on the employer, of the chance that the Appellant would have been dismissed by the same date if a fair procedure had been followed. It was not clear whether or on what evidential basis the Tribunal had assessed the chance at 100 per cent, or whether it had made its finding on the balance of probabilities.
Tribunals need to disentangle in their minds the separate questions that may arise where a redundancy dismissal is procedurally unfair. The date until which the employee’s employment would have continued if he had not been dismissed as a consequence of the redundancy exercise, is a distinct issue from that of evaluating the chance that, if a fair procedure had been followed in that exercise, the employee would have survived it and continued in employment.
When considering the latter issue, the Tribunal must envisage that the consultation that was not carried out, which fairness required, would have been carried out in good faith and with an open mind. That requires an evaluation, based on evidence, of what alternatives to redundancy the employer would have considered, had it acted fairly.
The Polkey issue would be remitted to the same Tribunal for reconsideration. It would not be desirable to remit the issue to a freshly constituted Tribunal in circumstances where the first Tribunal had heard the evidence and the employer would be unable (applying the Ladd v Marshall rule) to call fresh evidence on the remission. A fresh Tribunal would be mainly restricted to a paper exercise and would not have heard the oral evidence.

Kerr J
[2016] UKEAT 0248 – 15 – 0507
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566595

EAT Practice and Procedure: Striking-Out/Dismissal – Imposition of deposit
Strike-out. Pre-dismissal claims permissibly struck out on limitation grounds. Dismissal claims ought to proceed to a full Employment Tribunal hearing, subject to deposit orders being made.
The Claimant’s appeal allowed in part.

Peter Clark HHJ
[2016] UKEAT 0077 – 15 – 0607
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566594

EAT Unfair Dismissal: Reasonableness of Dismissal – The Employment Judge was correct in concluding that a lack of credibility on the part of a witness who had conducted a disciplinary hearing that was disregarded as procedurally and substantively unfair did not inevitably render the whole dismissal unfair. Following the guidance in Taylor v OCS Group Limited [2006] ICR 1602 the process was still capable of being fair overall where the subsequent appeal process was thorough and reasonably conducted against a background of sufficient evidence of gross misconduct. There are no limitations on the nature and extent of the deficiencies in a first stage disciplinary procedure that can be cured by a thorough and effective appeal.
A distinction can be drawn between an employer’s bad faith in issuing a warning that leads to dismissal, as in Way v Spectrum Property Care Limited [2015] EWCA Civ 381, and bad faith within a deficient disciplinary process not ultimately relied on in assessing whether the dismissal was fair.

Hon Lady Wise
[2016] UKEAT 0022 – 15 – 1005
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566592

EAT Unfair Dismissal: Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
(1) Unfair dismissal. The Employment Judge’s reasons demonstrated that she fell into error of starting from her own findings rather than reviewing the actions of the Respondent in accordance with section 98(4) of the Employment Rights Act 1996.
(2) The Employment Judge’s very brief reasons on the Polkey question did not demonstrate that she applied the correct test.
(3) The Employment Judge’s findings could not be described as perverse – in particular, her finding that the Claimant did not commit the misconduct alleged was not perverse – and her Judgment in respect of wrongful dismissal would stand.

David Richardson HHJ
[2016] UKEAT 0333 – 15 – 1305
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566593

EAT Sex Discrimination: Direct – Inferring discrimination
In a direct sex discrimination claim, the Tribunal had erroneously approached the question of subconscious discrimination by considering the subjective state of mind of the employer’s representative, rather than whether it should conclude that there had been unconscious discrimination by drawing inferences from objective facts.

Kerr J
[2016] UKEAT 0190 – 15 – 2303
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566591

No need to give a decision.

T-392/94, [1996] EUECJ T-392/94
Bailii
European

Employment

Updated: 18 January 2022; Ref: scu.172975

Unfair dismissal – remedies – reinstatement, re-engagement – compensatory award – Acas uplift

The Claimants were dismissed from their jobs as passenger service operatives after allegations had been made that they had bullied, harassed and intimidated new starters who were working in the same team. Having upheld the Claimants’ claims of unfair dismissal, the Employment Tribunal went on to consider remedy. Recording that Mr Gavli was seeking reinstatement but Mr Ali was only seeking compensatory relief, the ET accepted the Respondent’s case that reinstatement or re-engagement would not be practicable: the unchallenged evidence was that working relationships had irretrievably broken down. On the question of compensation, the ET took account of the buoyant local economy at the relevant time and concluded that the evidence demonstrated that neither Claimant had taken reasonable steps to mitigate their losses; had they done so, they could have found alternative employment within three months. Although both Claimants said they had suffered prejudice as a result of their dismissals by the Respondent, the ET found that was not the reason why they had not found other work: in both cases, there was little evidence that they had applied for alternative employment. Both Claimants had claimed an uplift of 25% for failure to comply with the Acas Code but their counsel had not specified the particular provisions relied on; in the circumstances, the ET made no uplift. The ET also recorded that claims for pension losses had been included within the Claimants’ schedules of loss but this had not been particularised and it declined to make any award under this head. Having reached its determination on the various heads of claim, the ET made compensatory awards, setting out the prescribed period in each case
The Claimants appealed against the ET’s remedy decision.
Held: allowing the appeal in part
The ET had not erred in its decision on reinstatement or re-engagement. It had first considered this possibility in Mr Ali’s case but recorded that he was only seeking a compensatory remedy. As that was the way his case had been put below, the ET did not thereby err in failing to further consider the question of reinstatement or re-engagement in his case. As for Mr Gavli, criticism was made of the ET for failing to consider the question of practicality in the light of the case of another employee, DR, who had faced similar allegations but had been transferred to work at another terminal. This was, however, not a point that had been made below. Although DR’s case was referenced, it was not suggested his circumstances were so similar to those of the Claimants as to give rise to an inconsistency of treatment that rendered the dismissals unfair. Moreover, although the Claimants were aware that DR had been kept on, his case was not relied on to support the claim for reinstatement or re-engagement. This ground of appeal was dismissed.
Mr Ali also challenged the ET’s decision on the basis that it had not taken into account the fact that he could have continued to work (part-time) whilst undertaking pilot’s training. The ET’s reasoning made clear, however, that it had this in mind but found his failure to mitigate his losses arose from his failure to continue to apply for work. No error of approach was disclosed; this ground of appeal was dismissed.
Both Claimants challenged the ET’s refusal to consider the question of an uplift for failing to comply with the Acas Code. Although the Claimants had failed to specify the particular provisions of the Code relied on in their submissions before the ET, Mr Ali’s ET1 had provided some particulars in this regard and both Claimants had included claims for an uplift in their schedules of loss. Claims under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 were thus before the ET and there was nothing to suggest that these had been withdrawn. As the Respondent acknowledged, the ET’s findings on liability also allowed of the possibility that there had been breaches of the Acas Code. In the circumstances, the ET erred in its failure to consider this element of the claims.
The final two grounds of appeal related solely to Mr Gavli. He first objected to the prescribed element to the compensatory award, explaining that the universal credit he had received also related to his wife. Secondly, he complained that the ET had failed to make any award in respect of his loss of pension benefits. In relation to the first of these points, this was not a matter raised before the ET and did not, in any event, relate to any aspect of the ET’s decision. As for pension loss, this had been included as a heading within Mr Gavli’s schedule of loss; although not further particularised, the Respondent’s counter-schedule had provided the relevant calculation of this loss. Given that it was not disputed that this was a loss suffered by Mr Gavli, an injustice arose from the ET’s failure to make an award under this heading. Although Mr Gavli’s lawyers may not have properly particularised this element of the claim, it had not been withdrawn and the ET was in a position to make an award on the basis of the undisputed figures given by the Respondent. The overriding duty on the ET was to make an award that was just and equitable in the circumstances; in discounting the claim for loss of pension benefits, it had failed to do so. This ground of appeal would also be allowed.

The Honourable Mrs Justice Eady DBE
[2021] UKEAT 0012 – 21 – 1905
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.666678

[1997] UKEAT 661 – 96 – 2102
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.207225

EAT Practice and Procedure: Admissibility of Evidence – Admissibility of evidence – common law ‘without prejudice’ privilege – section 111A Employment Rights Act 1996 (‘ERA’)
In proceedings before the ET, the Claimant had complained of constructive unfair dismissal and indirect sex discrimination arising, in part, from the Respondent’s conduct towards her during a period of discussions she had initiated for the agreed termination of her employment. Her grievance and ET1 had referred to the parties’ discussions in this regard on an open basis. In responding to the grievance and in its ET3, the Respondent had not objected but had itself also referred to the material in question. Subsequently, in preparing for the Full Merits Hearing of the Claimant’s claims, the Respondent objected to her reliance on what it said was privileged material, alternatively material rendered inadmissible by virtue of section 111A ERA. On the basis of written submissions, the ET had ruled that the material in question was generally admissible, subject to redaction of specific references to any offer. It had not, however, gone on to deal with the Claimant’s contentions that (i) the Respondent could not rely on without prejudice privilege or section 111A given its unambiguous impropriety/improper behaviour, and (ii) in any event, the parties had waived privilege. On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: Allowing both the appeal and the cross-appeal in part:
(1) In respect of without prejudice privilege.
Rejecting the Respondent’s contention that the ET had erred in its approach to the principle of admissibility of without prejudice negotiations (applicable to the parties’ communications post-dating 7 January 2015, at least so far as the Claimant’s claim of discrimination was concerned); it had correctly applied the relevant principles and reached a permissible case management decision and the appeal was rejected on this point.
If wrong on this, the ET had failed to deal with the points raised by the Claimant as to whether the Respondent was genuinely negotiating in an effort to resolve the dispute and/or whether there was unambiguous impropriety and the cross-appeal would therefore have succeeded on this point.
In any event, the cross-appeal would have succeeded on the other question raised by the Claimant (also not addressed by the ET), that was whether the Respondent had waived without prejudice privilege. That issue was to be resolved in the Claimant’s favour: the Respondent had implicitly waived privilege by relying on the material in issue in its ET3 (although not merely by permitting it to be referenced in the grievance); following Brunel University v Vaseghi [2007] IRLR 592 CA.
(2) On the application of section 111A ERA.
On this question, the ET had wrongly elided the approach to section 111A with that of without prejudice privilege. Section 111A had to be read on its own terms, which did not import the case law underpinning common law without prejudice privilege. The appeal would be allowed on this point.
The cross-appeal would also be allowed in part on the question of the application of section 111A; specifically as to whether there was improper behaviour. Remission of this matter to the ET would also enable it to consider the broader question as to whether section 111A was properly engaged in respect of the communications in issue in this case.
The cross-appeal was, however, dismissed so far as ‘waiver’ of section 111A confidentiality was concerned: section 111A, construed on its own terms, allowed for no possibility of waiver.

Eady QC HHJ
[2016] UKEAT 0025 – 16 – 2806
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566248

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – Whether Employment Tribunal entitled to find unfair dismissal when reason for dismissal was some other substantial reason such as to justify dismissal – a breakdown in working relationships – without giving employee the opportunity to show that she could work with colleagues about whom she had made complaint – yes, and whether section 207A Employment Rights Act 1996 applied to dismissal on that ground; – no.

Mitting J
[2016] UKEAT 0264 – 15 – 1705
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566247

EAT Contract of Employment – Whether local authority employees, most of whom had been contractually entitled to an annual increment within grade, and the remainder of whom accepted a promise of it, were deprived of it by the terms of a collective agreement made subsequently (in most cases). They were not, because the collective terms did not, on a true interpretation, take away the right.

Mitting J
[2016] UKEAT 0010 – 16 – 0405
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566245

EAT (Unfair Dismissal: Constructive Dismissal – PRACTICE AND PROCEDURE – Disposal of appeal including remission – The Employment Tribunal (‘EAT’) allowed an appeal from a Decision of the Employment Tribunal (‘ET’) on the grounds that the ET’s Reasons on constructive dismissal were flawed by material errors of law. The EAT substituted for a finding that the Claimant was not constructively dismissed a finding that she was constructively unfairly dismissed because, on the facts, there was no other decision to which a reasonable ET, properly directly itself in law, could have come.

Elisabeth Laing DBE J
[2016] UKEAT 0241 – 15 – 1205
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566246

Appeal of rejection of claim for unfair dismissal and ptotected disclosure.

Macur, Cjristopher Clarke, Bean LJJ
[2016] EWCA Civ 582
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.566233

[1999] UKEAT 1242 – 98 – 1702
Bailii
England and Wales
Cited by:
See Also – Quashie v London Borough of Greenwich EAT 24-Sep-1999
. .
See Also – Quashie v London Borough of Greenwich EAT 15-Nov-2000
EAT Race Discrimination – Victimisation. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 January 2022; Ref: scu.204870

[2001] UKEAT 1120 – 00 – 1403
Bailii
England and Wales
Citing:
See Also – Fitch v Durlston Court School Trust EAT 5-Dec-2001
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 January 2022; Ref: scu.203654

(Staff Regulations of Officials and Conditions of Employment of Other Servants – Opinion) Appeal – Civil service – Open competition – Non-registration on the reserve list – Conditions relating to qualifications and professional experience lasting a minimum of three years – Possibility of supplementing insufficient reasons before the judge – Conditions – Appeal in cancellation

C-114/19, [2020] EUECJ C-114/19P_O, [2020] EUECJ C-114/19P
Bailii, Bailii
European

Employment

Updated: 18 January 2022; Ref: scu.654683

(Judgment) Civil service – Interpreters’ strike – Measures to requisition interpreters adopted by the European Parliament – Lack of legal basis – Liability – Non-pecuniary damage

T-402/18, [2020] EUECJ T-402/18
Bailii
European

Employment

Updated: 18 January 2022; Ref: scu.654671

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Judge erred in failing to have regard to the guidance in Polkey v AE Dayton Services Ltd [1987] ICR 142 in concluding that proceeding with the disciplinary hearing in the Claimant’s absence did not render the dismissal unfair as there had been a full investigation meeting and the Claimant had admitted that she had acted as alleged and it was unclear what else she could have said.
In circumstances in which there was no finding that the Respondent had or could have reasonably concluded that a disciplinary hearing would be futile and having regard to the fact that the Claimant had been invited to attend such a meeting and other relevant matters, the Employment Judge erred in his consideration of the effect of whether proceeding with a disciplinary hearing in the Claimant’s absence rendered her dismissal unfair.

Slade DBE J
[2016] UKEAT 0039 – 16 – 2106
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.565991

EAT PRACTICE AND PROCEDURE
DISABILITY DISCRIMINATION – Reasonable adjustments
Cross-appeals by the Claimant and Respondent.
Whether the point on which the Claimant succeeded before the Employment Tribunal (single reasonable adjustment) was sufficiently raised before the Employment Tribunal. It was. No error of law in the substantive finding.
No point of law raised in the Claimant’s appeal.
Both appeals dismissed.

Peter Clark HHJ
[2016] UKEAT 0256 – 15 – 1205
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.565989

EAT JURISDICTIONAL POINTS – Extension of time: just and equitable
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal did not err in law in its application of section 123(1) of the Equality Act 2010. It did not err in law, nor was it perverse, in deciding that the Claimant was unfairly dismissed.

David Richardson HHJ
[2016] UKEAT 0016 – 16 – 2504
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.565988

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
Two friends had worked together in the same company for a number of years, when they fell out. The minority shareholder of the two was dismissed. Though both parties contended that the date of termination was 24 July 2014 (the Claimant employee contending he had been dismissed, without any proper procedure being adopted, the employer contending he had resigned) the ET found that there was a dismissal on 5 September 2014, for some other substantial reason (a breakdown in trust and confidence) which was unfair because a ‘procedure’ (unspecified) was not followed. The Judge declined to make any Polkey reduction even when invited to reconsider his decision, despite the fact that the Claimant had actively been negotiating terms on which to leave at the time of his dismissal, and it was clear that the employment relationship was either beyond the point of no return or close to it. It was held on appeal that reasoning that a potentially fair dismissal was unfair because of the absence of a procedure, without identifying what the procedure was, was inadequate to sustain the finding, and that on the findings made by the Judge that the parties were in the course of negotiating terms on which to part when the Claimant was dismissed, and to the effect that the relationship had come close to if not crossed the point at which trust and confidence could not be salvaged, it was perverse to hold there was insufficient evidence on which to assess that there was a chance that the employment would not continue. The case was remitted to a new Tribunal for re-determination.

Langstaff J
[2016] UKEAT 0263 – 15 – 0902
Bailii
England and Wales

Employment

Updated: 18 January 2022; Ref: scu.565986

EAT Practice and Procedure: Amendment – The Employment Judge allowed the Claimants’ application for permission to amend their claim forms to add a claim of unfair constructive dismissal which arose after the claims were lodged (the actual dismissal claim was unsustainable following reinstatement on appeal; see Prakash). The Respondent’s representative below did not object to amendment.
Appeal based on a time point unarguable in those circumstances. Selkent exercise did not arise given the lack of objection.

Peter Clark HHJ
[2016] UKEAT 0347 – 15 – 2104
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565389

EAT (Part Time Workers) PRACTICE AND PROCEDURE – Parties – PRACTICE AND PROCEDURE – Costs
Whether a non-lead Claimant ought not to be bound by an earlier Employment Tribunal decision; see ET Rule 36(3). True construction of Regulation 5(2)(a) of the Part-Time Workers Regulations 2000, allowed to proceed to a Full Hearing of the appeals on those points only.
Proper construction of transitional provisions of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. Reference to ‘appeal’ in the meaning of ‘claim’ is paragraph 2 means an appeal to the ET; not an appeal from the ET to the EAT. Thus, the fact that a claim form was presented before the Fees Order came into force does not exempt the Appellant from paying EAT fees on appeals to the EAT which post-date the relevant date (29 July 2013).

Peter Clark HHJ
[2016] UKEAT 0487 – 15 – 2605
Bailii
Part-Time Workers Regulations 2000
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565125

EAT Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke – UNFAIR DISMISSAL – Constructive dismissal
Reasons
The simplification of the wording of the Rule relating to the content of the Reasons (i.e. the change from Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) had not changed the requirement for Reasons to conform to the Rule. Greenwood v NWF Retail Ltd [2011] UKEAT/0409/09/JOJ, [2011] ICR 896 still applied and a failure to comply with the requirements of the Rule would amount to an error of law (see paragraphs 51 to 58 of that judgment). In order to comply with the Rule it was necessary for the requirements of the component parts of the Rule to be discoverable in the Reasons. The approach of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 should continue to be the prism through which compliance with the Rule was to be viewed (see paragraphs 59 to 63 of the judgment in Greenwood). In the instant case the Reasons took a largely narrative form and ‘bare’ conclusions had to be connected to findings elsewhere in the Reasons but when that exercise was undertaken it could be seen that the Reasons were adequate.
Constructive Dismissal
There is no difference in principle between a unitary repudiatory breach of contract and a repudiatory breach of contract comprising a series of acts, which taken together, amount to a breach of the implied term as to mutual trust and confidence and the last of which amounts to a ‘last straw’. This is made clear by paragraphs 20 and 21 of the judgment of Dyson LJ in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 and nothing said in Addenbrooke v The Princess Alexandra Hospital NHS Trust UKEAT/0265/14/DM should be understood as contradicting that. Affirmation by the employee after a repudiatory breach cannot be ‘revived’ except by a further repudiatory breach and there cannot be a series of ‘last straws’; Safehaven Investments Inc v Springbok Ltd [1996] 71 P and CR 59, White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355 (Comm), and Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm) considered and applied.
In the instant case the Employment Tribunal and made fundamental findings of fact as to causation, which could not be challenged on appeal and had implicitly directed itself correctly as to issues of affirmation. Accordingly the appeal was dismissed.

Hand QC HHJ
[2016] UKEAT 0177 – 15 – 0306
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565127

REDUNDANCY – Collective consultation and information
HUMAN RIGHTS
The Court of Appeal in Redbridge London Borough Council v Dhinsa and McKinnon [2014] ICR 834 held that the Council’s Parks Constables were in service as a ‘member of a constabulary maintained by virtue of an enactment’ within the meaning of Employment Rights Act 1996 section 200(2) and so were precluded from pursuing claims for unfair dismissal. In this appeal it was not in issue that applying McKinnon and domestic law, by parity of reasoning trade unions representing such constables are precluded by Trade Union and Labour Relations (Consolidation ) Act 1992 section 280 from pursuing claims for a declaration and a protective award. The Claimant parks constables’ assertion that the Human Rights Act 1998 and the European Convention on Human Rights require the Court to apply a different interpretation of ERA section 200(2) enabling them to claim unfair dismissal was not well founded. Their dismissals did not engage Article 8 whether on its own or taken together with Article 14. The claim by the trade union under TULR(C)A section 189 prima facie engaged Article 11. However, in the absence of consideration of Article 11.2 it could not be decided whether the union’s Article 11 rights were infringed. Further, even if they were, TULR(C)A section 280 could not be given the interpretation sought by the Claimant. A declaration of incompatibility was not sought from the EAT nor could it be at this stage as the Secretary of State had not been given notice under CPR Rule 19.4A(1).

Slade DBE J
[2015] UKEAT 0234 – 13 – 1812, [2016] ICR 427
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565096

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
DISABILITY DISCRIMINATION
The Claimant suffered from Asperger’s syndrome. A Judge decided at the second of three Preliminary Hearings that there should be a report from an expert, not a GP, as to the nature of his disability and adjustments it would be reasonable to make to enable participation in a third Preliminary Hearing. The parties could, or would, not fund it. Accordingly, the Judge thought it proportionate as a first step to obtain the medical records of the Claimant. They were provided. The parties then agreed between themselves what adjustments would be needed for the hearing. At the hearing, as an additional adjustment prompted by the Equal Treatment Bench Book, counsel for the Respondent offered a written list of the questions she intended to ask in cross-examination. Having failed to secure an amendment to the claim, the Claimant then applied to answer the questions in writing, and at home, and sought a postponement to obtain an expert report on appropriate adjustments. The application was refused.
Held: The duty to make reasonable adjustments, for the purpose of ensuring access to and participation in the proceedings, was undisputed. The question was whether there was an error of law in providing inadequate adjustments by failing to consider what an expert might say. Whatever approach was taken (whether assessing fairness, review, or a hybrid, proportional approach as considered in R (Daly) v Secretary of State for the Home Department), there was no error of law here. The Judge had considerable material on the basis of which he could conclude that the adjustments proposed would be reasonable so as to ensure that the hearing would be fair, which included the agreement of the parties: the Claimant’s agreement to the measures proposed should be respected since he had autonomy to make it. There was nothing to suggest the measures were inappropriate. Unfairness had to be judged by reference to both parties, to proportionality and with a view to expedition, and the judgment of the Judge, if not conclusive, was entitled at the very least to considerable weight. There was no failure to follow the Equal Treatment Bench Book.

Langstaff P J
[2015] UKEAT 0110 – 15 – 1612
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565095

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – The Claimant had pursued claims of race discrimination, whistleblowing, and disability discrimination against the First and Third Respondents and of disability discrimination, victimisation and unlawful detriment against the Second Respondent (the trade union of which she was a member). At a Preliminary Hearing the Regional Employment Judge (‘REJ’) heard applications relating to the claims against the Second Respondent (largely relating to whether those claims had been brought in time or whether it would be just and equitable to extend time). Having heard from the Claimant and the Second Respondent, the REJ stated she had reached a decision on these matters but would not announce it at that stage. The REJ turned to the matters relating to the claims against the First and Third Respondents. Having not been able to complete submissions that day, the Claimant and those acting for the First and Third Respondents were permitted to make further written representations, limited to matters raised at the hearing. Upon receiving submissions from the Claimant, the REJ became aware that allegations were being made against a TU representative who was a lay member in that region. She took the view that ‘beyond doubt’ she would not have started to hear the case if she had known this before and set in motion the process of transferring the case to another region. Nonetheless, she proceeded to reach decisions on the matters relating to the claims against the First and Third Respondents, and sent out her Reserved Decisions in this respect (striking out the race discrimination, whistleblowing and unfair dismissal claims and giving directions, including for the joint instruction of a medical expert, in the disability discrimination claim), and to communicate her earlier decision in respect of the claims against the Second Respondent (finding the claims were brought out of time and it was not just and equitable to extend time).
The Claimant appealed on the grounds of apparent bias and on the basis that the ET had improperly failed to consider the Claimant’s case at its highest when deciding to strike it out and/or had applied the wrong test and had also wrongly required the Claimant to participate in the instruction of a joint expert.
Held: Allowing the Claimant’s appeal against the decisions reached in respect of the claims against the First and Third Respondents but dismissing the appeal against the decisions relating to the Second Respondent.

Eady QC HHJ
[2016] UKEAT 0182 – 15 – 1104
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565120

EAT Practice and Procedure: Review – PRACTICE AND PROCEDURE – New evidence on appeal
Following a Remedy Hearing at which the Claimant gave evidence not foreshadowed in his witness statement or any documents, that he had been offered work with three companies but the job offers had been withdrawn without reasons, leading him to suspect that the Respondent had provided unhelpful references, and the Employment Tribunal accepted this evidence, the Respondent obtained evidence from the three companies that was in conflict with the Claimant’s evidence. The Respondent sought reconsideration, but this was refused by the Employment Judge, who accepted that the evidence was apparently credible and could not realistically have been obtained before the hearing but concluded that there was no reasonable prospect that the evidence, if given, would have an important influence on the result of the case.
In reaching that conclusion the Employment Judge failed to have regard to the wider impact of the fresh evidence on the Claimant’s credibility. If true, the evidence directly contradicted evidence given by the Claimant on oath, advanced to support his case of a genuine and diligent job search and wrongly accusing the Respondent of undermining his attempts to obtain alternative employment. If as a result of the new evidence the Employment Tribunal were to conclude that the Claimant deliberately misled the Tribunal, it is difficult to see how that would not impact on the Tribunal’s assessment of the facts relevant to mitigation and future loss which underpinned the assumptions it made when making its award.
The appeal was accordingly allowed, and the matter was remitted for reconsideration to the Employment Tribunal.

Simler DBE P J
[2016] UKEAT 0329 – 15 – 1404
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565122

EAT Unfair Dismissal: Constructive Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant (a high performing Analyst, who had worked long hours before suffering serious injuries in a cycling accident) made complaints of disability discrimination (failure to comply with a duty to make reasonable adjustments) and constructive unfair dismissal. The parties had made written submissions, following directions for consecutive exchange. The ET’s Reasons suggested, however, that it had not had regard to the final reply from the Claimant.
In respect of the reasonable adjustments claim, the Claimant had relied on a provision, criterion or practice (‘PCP’) of having been required to work late but the Respondent contended working late had been voluntary for the Claimant after his accident: he had only been requested – not required – to do so. The ET found the Respondent’s position had progressed from making ‘open requests’, to assuming the Claimant would work late on one or two evenings each week: it became an expectation he would do so. That said, the ET did not accept the Claimant had been ‘forced’ to work late, in the sense of being coerced to do so, although it recognised he would have considered there were commercial and political reasons why he should work late. Accepting that by working late evenings the Claimant had been placed at a disadvantage due to his disability (the continuing effects of his injuries sustained in the cycling accident), the ET nevertheless dismissed his disability discrimination claim because it found that an expectation or assumption that the Claimant should work late was not the PCP he had pleaded.
Turning to the complaint of constructive unfair dismissal, the Claimant appealed against the ET’s rejection of his disability discrimination complaint and on its finding as to his reason for resigning. The Respondent cross-appealed on the basis that the ET had failed to engage with the question of possible acquiescence.
Held: allowing the appeal and dismissing the cross-appeal.
The identification of the PCP was an important aspect of the ET’s task, the starting point to determining a reasonable adjustments claim (Environment Agency v Rowan [2008] IRLR 20 EAT). In approaching the statutory definition, the protective nature of the legislation meant a liberal, rather than an overly technical approach, should be adopted (Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ at paragraph 18; EHRC Code of Practice on Employment 2011 at paragraph 6.10). Adopting a real world approach, whilst ‘requirement’ might be taken to imply some element of compulsion, an expectation or assumption placed upon an employee – in the sense found by the ET – might well suffice. As the ET recognised by its reference to the ‘commercial or political’ factors (referable to the workplace rather than more generally), employees can feel obliged to work in a particular way even if disadvantageous to their health. Characterising the Respondent’s expectation as a ‘requirement’ in that context was an entirely straightforward construction of the Claimant’s case. Given the Claimant was relying on the ‘requirement’ as a form of ‘practice’ by the Respondent, the ET’s approach was overly technical and led it to treat the Claimant’s case as having been more narrowly put than it in fact was. That was a point the ET might have understood more clearly if it had the Claimant’s final submissions in reply.
Approaching the Claimant’s case on PCP in the correct way, on the ET’s findings it was apparent his case had been made out in that respect.
That, however, was not an end of the matter. Although the ET had found the Claimant suffered a disadvantage, as compared to a non-disabled comparator, as a result of the PCP of working later hours, its findings did not go so far as to determine the nature and extent of that disadvantage, and it did not go on to assess the steps that it might have been reasonable for the Respondent to take at the relevant time (the adjustments it might have been obliged to make). Those matters needed to be remitted and it was proportionate for this to be to the same ET.
On the constructive unfair dismissal case, the ET found the Respondent’s conduct – taken cumulatively – amounted to a fundamental breach of contract. It did not, however, consider that was the reason for the Claimant’s resignation and referred to various other matters, largely occurring thereafter. The correct approach was as laid down by Keene LJ in Nottinghamshire County Council v Meikle [2004] IRLR 703, which recognised that the question was not so much whether the breach of contact constituted the reason for the resignation as whether it was a reason for that resignation (see Lochuack v London Borough of Sutton UKEAT/ 0197/14/RN). On this question, the ET had been led into error by the description of the point in the list of issues, which seemed to require the breach of contract to be the only reason for the resignation; that alone rendered the decision unsafe. More generally, however, the ET erred in its approach. It being common ground that the Claimant’s resignation on 14 February had been effective to terminate his contract of employment, the ET needed to determine what had led him to resign at that stage. Whilst what he subsequently did might not be irrelevant, the evidence made it plain that something had occurred that morning which caused the Claimant to resign that day. The only permissible conclusion was that the Claimant had resigned – at least in part – in response to the Respondent’s repudiatory breach. That being so – and the Respondent having put no alternative case as to a potentially fair reason for any constructive dismissal – the ET’s decision in this respect would be set aside and substituted by a finding that the Claimant’s complaint of constructive unfair dismissal was made out.
As for the cross-appeal, given the ET’s finding as to the last relevant act being on 14 February itself, there could be no proper finding that the Claimant had waived the breach. The cross-appeal would be dismissed.

Eady QC HHJ
[2016] UKEAT 0266 – 15 – 0704
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565118

EAT Jurisdictional Points: Extension of Time: Just and Equitable – Having found that the Claimant had suffered direct race discrimination/harassment in having been called a ‘fucking black monkey’ by another employee of the Respondent, the ET ruled that the incident in question had occurred more than three months before the Claimant had lodged his ET claim and was thus out of time. The Claimant had not adduced evidence as to why it would be just and equitable to extend time, and the ET did not consider it would give such an extension in those circumstances.
On the Claimant’s appeal and upon the Respondent not resisting the appeal.
Held: allowing the appeal.
The issue as to the applicability of any time limits and whether it would be just and equitable to grant an extension of time had been considered and determined by a different Employment Judge at an earlier Preliminary Hearing. Although the ET at the Full Merits Hearing had made reference to this in its Judgment, it had apparently lost sight of this point and had itself turned to consider the issue again. The Claimant had not been required to adduce evidence to warrant a just and equitable extension of time as this issue had previously been determined in his favour. The appeal would be allowed and (applying Sinclair Roche and Temperley v Heard [2004] IRLR 763) the matter remitted to the same ET to determine remedy.

Eady QC HHJ
[2016] UKEAT 0030 – 16 – 1804
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565119

EAT UNFAIR DISMISSAL – Polkey deduction
Unfair Dismissal – Conduct
Dismissal – Polkey
The Respondent’s reason for the dismissal was based on three separate incidents of misconduct.
On the first, the Respondent used the label of ‘physical assault’ to characterise the charge against the Claimant. The ET found this was not the accurate label for the conduct in fact relied on by the Respondent and considered that rendered the dismissal unfair.
On the Respondent’s appeal against that conclusion, although it would be wrong to place undue focus on the label used by an employer, in this case the ET had not lost sight of the questions it had to consider in terms of fairness for the purposes of section 98(4) ERA 1996. The Respondent had taken the view that there was a physical assault regardless of the circumstances (the Claimant had accepted he accidentally touched the patient’s neck for a matter of seconds, whilst trying to defend himself from an attack) and the ET considered this led it to unduly constrain its consideration of the circumstances, and thus to fail to carry out a fair investigation, and may have led the Claimant to respond differently to the charge against him. The ET did not focus solely on the label but reached permissible conclusions on the issues that went to the fairness of the Respondent’s reliance on this factor. It was not for the EAT to interfere; the appeal would not be allowed on this basis.
Similarly, on the safeguarding issue relied on by the Respondent, the ET concluded the Respondent had failed to investigate matters going to the central point of the Claimant’s response and that rendered this unfair. That was, again, a permissible view on the material before the ET, and the EAT could not interfere with its conclusion in this respect.
As the Respondent had relied on all three incidents as constituting the reason for the dismissal, given the EAT’s conclusions on these two matters, the appeal against the ET’s decision on liability – the finding of unfair dismissal – must fail.
On the third matter relied on by the Respondent, however, the EAT did consider that the ET had erred. This was the charge that the Claimant had failed to comply with a reasonable management instruction by failing to work his shift on an alternative ward immediately after the ‘assault’ incident referred to above. The ET had needed to first assess whether the Respondent had given a reasonable instruction in these circumstances. That did not (as the Respondent contended) simply depend on what the employer said; the ET had been entitled to take into account the broader context. On the other hand, it was insufficient for the ET to simply say that the reasonableness of the instruction was ‘questionable’. Furthermore, the ET had apparently applied a test of what a reasonable employer would do, which was not the correct question. The range of reasonable responses allowed that a reasonable employer might dismiss fairly even in circumstances where another employer might have decided not to do so. This rendered the ET’s conclusion on this third matter unsafe. Although this did not undermine the ET’s finding of unfair dismissal, the point was not wholly academic as it was relevant to the Polkey issue (see below). It would thus be remitted to the same ET for rehearing on this point.
On the ET’s decision to make no reduction under Polkey, the appeal would be allowed. Whilst finding that the Respondent’s reason for dismissal had encompassed all three incidents, at earlier stages in its reasoning the ET had accepted that each, taken separately, might still be relevant at the remedy stage. That seemed to imply that it had accepted this was the correct approach at the Polkey stage and its later refusal to consider such a reduction did not explain this apparent inconsistency. Moreover, the findings on the individual incidents seemed to allow that there might have been a fair finding of misconduct on the part of the Claimant and it again appeared inconsistent for no Polkey reduction even to be considered in these circumstances. The appeal would be allowed on this question and the matter remitted to the same ET for reconsideration.

Eady QC HHJ
[2015] UKEAT 0109 – 15 – 1712
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565098

EAT UNFAIR DISMISSAL – Contributory fault
CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Employment Judge assessed the Respondent’s genuine belief in the Claimant’s misconduct by reference to capability considerations that were irrelevant and impermissibly substituted his own view. Further, having concluded that the Claimant exaggerated the effects of his injury and the accident, and that this was culpable and misleading, it was perverse for the Employment Judge to hold that the dismissal was unfair and wrongful.
The conclusion that the Claimant contributed to his dismissal by reference to his culpable and misleading exaggeration of the effects of the accident and injury was open on the evidence and findings and not in error of law.
Other matters raised by appeal and cross-appeal were rendered academic by those conclusions.

Simler DBE J
[2015] UKEAT 0185 – 15 – 0312
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565097

EAT Unfair Dismissal: Contributory Fault – The Employment Tribunal found that the Claimant had been unfairly dismissed but also that he ’caused or contributed to his dismissal by 100%’ and made no basic or compensatory award. It erred in law and gave insufficient reasons in its application of section 122(2) and section 123(1) and (6) of the Employment Rights Act 1996. The parties having invited the Employment Appeal Tribunal to determine issues of Polkey and contributory fault without remitting the case, the Employment Appeal Tribunal determined that there should be a 25 per cent reduction in the compensatory award on Polkey grounds and a further one third reduction in the awards for contributory conduct.

David Richardson HHJ
[2016] UKEAT 0265 – 15 – 1104
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565116

EAT Practice and Procedure – Procedure: the Employment Tribunal struck out a claim after the Claimant had asked it to have a hearing. It should not have done so, since Rule 37(2) requires there to be a hearing if a party in danger of being struck out asks for one.

Langstaff J
[2016] UKEAT 0323 – 15 – 1204
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565121

EAT CONTRACT OF EMPLOYMENT – Wrongful dismissal
Unfair Dismissal – Polkey Reduction – Contributory Fault – Wrongful Dismissal
The Claimant was dismissed for a reason relating to her conduct, the Respondent having reasonably concluded there was a breakdown of trust and confidence arising from her inconsistent and suspicious answers to questions in circumstances relating to what appeared to be the selling of possibly stolen goods from the Respondent’s store (where the Claimant was employed) through an eBay account registered to the Claimant’s address. The ET rejected the Claimant’s various procedural objections but went on to find the Respondent had been guilty of ‘fundamental failures’, not cured by the appeal (which the Claimant had failed to attend). On that basis, it concluded the dismissal had been unfair. It further held that, had the Claimant’s husband been contacted, there was a 75% chance he would have responded and the issues resolved; thus a Polkey reduction should be limited to 25%. As for any reduction in respect of the Claimant’s contribution, allowing that her failure to call her husband as a witness and her inconsistent, suspicious and unhelpful answers amounted to culpable behaviour contributing to her dismissal, the reduction should be 50%. On the wrongful dismissal claim, the ET found the Claimant had acted in an unhelpful, inconsistent and suspicious manner in her response to the Respondent, but that was not sufficiently grave to justify her summary dismissal.

On the Respondent’s Appeal.
Held: Allowing the appeal.
Unfair Dismissal
The ET’s conclusion was based on a finding that the Respondent had failed to seek evidence from the Claimant’s former husband (who, she contended, had established the eBay account from her address without her knowledge). That, however, was perverse given the ET’s earlier finding of fact that the Respondent had pushed for the contact details of this witness and it was the Claimant herself (who had the contact details) who declined to pass these on and who failed to adduce evidence from her former husband (with whom she was in contact) at the second investigation meeting or the disciplinary or appeal hearings. The finding that the Respondent did not take up the Claimant’s offer to pass on the investigator’s contact details to her former husband also went beyond the evidence, which showed this had been left to the Claimant. The ET’s reasoning further demonstrated it had fallen into the error of substituting its view for that of the employer: it failed to ask whether the Respondent’s response fell within the band of reasonable responses but judged the Respondent against what the ET itself considered would have been the correct course. The finding of unfair dismissal therefore could not stand.
Although strictly unnecessary to address, the ET’s conclusions in Polkey and contributory conduct were also perverse. It was perverse to find, on the question of a Polkey reduction, that there was a 75% chance the Claimant’s husband would have responded in circumstances where the Respondent had made plain its wish to speak to him, had positively sought his contact details and where there was nothing to prevent the Claimant herself calling him as a witness. It was further perverse to conclude the Respondent had not remedied any failings on appeal when it was the Claimant who failed to attend or provide any materials (and the Respondent had – as the ET found – reasonably proceeded in her absence).
As for contributory fault, the 50/50 split in terms of culpability in this regard was perverse given the ET’s conclusions in respect of the Claimant’s behaviour. Her husband was not an employee of the Respondent. On the other hand, the Claimant had the ability to make contact with him and to adduce evidence from him but chose not to do so. There was no explanation as to why the ET’s findings in this respect would justify an equal sharing of responsibility.
Wrongful Dismissal
The ET had accepted that the Claimant’s approach during the investigation was unhelpful, inconsistent and raised suspicion and that there were reasonable grounds for the Respondent to conclude this went to trust and confidence. Its finding that this was not sufficiently grave to justify summary dismissal was undermined by its erroneous approach to the Respondent’s culpability, and this rendered its conclusion on the wrongful dismissal claim unsafe.
Disposal
Allowing for the limitations on the EAT’s powers, the conclusion on the unfair dismissal claim was solely founded upon the perverse finding that the Respondent had been guilty of failing to seek evidence from the Claimant’s former husband. Once that was corrected, on the ET’s own conclusions, there could be no finding of unfairness, and a finding that the Claimant’s claim was dismissed would be substituted.
Similarly, on the wrongful dismissal claim, the findings as to the Claimant’s conduct remained. The only question was as to the gravity of that conduct. As the ET had accepted that this was sufficient to provide reasonable grounds for the Respondent to conclude that trust and confidence was undermined, and as that went to the heart of a contract of employment, it would be perverse to find other than that the Respondent was justified in terminating the contract summarily, and, again, that conclusion would be substituted for the ET’s decision in this regard.

Eady QC HHJ
[2015] UKEAT 0083 – 15 – 1812
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565094

EAT Unlawful Deduction From Wages – Unauthorised deduction of wages – section 13 Employment Rights Act 1996
The Claimant claimed he had been entitled to full pay for 12 months’ sick leave. That contention was founded upon his case that the Respondent had entered into a binding service agreement with him (as its Managing Director) in January 2007. The terms of that service agreement included a provision for full pay for sick leave for up to a year. The Respondent resisted the claim, arguing it had never agreed to be bound by the terms of the 2007 service agreement. The ET found that the 2007 service agreement had never been signed and had thus remained unexecuted. Nevertheless, it found the Respondent had agreed to be bound by the unexecuted agreement and that its then Finance Director (Mr Burrows) had authority so as to bind the company in this regard. The Respondent appealed.
Held: allowing the appeal
In this case, the Claimant – the Managing Director, 96% shareholder of the parent company, (the sole shareholder of the Respondent) – had drawn up the 2007 service agreement and had put it to the Respondent’s Finance Director, Mr Burrows (also a 2% shareholder in the parent company), for acceptance. The ET had found (consistent with Mr Burrows’ ultimate evidence on the point) that the Agreement had never been signed as accepted on behalf of the Respondent. Allowing that acceptance could be by conduct, it still needed to amount to a final and unqualified expression of assent to the terms of an offer (tested objectively). That said, absent fraud or misrepresentation, the law would not save a party from a bad bargain or from its own incompetence in failing to fully engage with the terms of the offer put to it. Terms and conditions which are immediately visible to the other contracting party will form part of the relevant contract even if that other party has not actually read the document (L’Estrange v F Graucob Ltd [1934] 2 KB 394), and where an individual has actual authority to bind a company, it will be bound by any agreement thus reached even if it contained provisions harmful to the company’s interests (Criterion Properties plc v Stratford UK Properties LLC and Ors [2004] 1 WLR 1846 HL).
On the question of intention, Mr Burrows’ evidence before the ET had been equivocal and this crucial issue remained unresolved (even on the more limited question as to whether the Respondent was to be taken to have agreed the sick pay provision) by reference to the matters cited in the ET’s reasoning; the various factors relied on by the ET were equally consistent with Mr Burrows having agreed to increase the Claimant’s entitlements as derived from the parent company, with no final agreement having been reached as to the proposed service agreement with the Respondent (Mr Burrows accepting in evidence that he would have been concerned about certain of the remuneration (particularly salary review and bonus) provisions). The ET had needed to engage with questions as to Mr Burrows’ authority (whether this was derived from the board of the parent company rather than that of the Respondent) as well as whether the performance it had relied on had in fact been that of the parent company. It had also needed to make a clear determination as to intention in the light of Mr Burrows’ evidence before it. The failure to make clear findings on these points rendered the decision unsafe and the case would be remitted to a different ET to consider afresh.

Eady QC HHJ
[2016] UKEAT 0019 – 16 – 1404
Bailii
Employment Rights Act 1996 13
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565117

Two applications by Mr Stewart for permission to appeal.

Kitchin LJ
[2015] EWCA Civ 1527
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565665

UNFAIR DISMISSAL – Contributory fault
CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Employment Judge assessed the Respondent’s genuine belief in the Claimant’s misconduct by reference to capability considerations that were irrelevant and impermissibly substituted his own view. Further, having concluded that the Claimant exaggerated the effects of his injury and the accident, and that this was culpable and misleading, it was perverse for the Employment Judge to hold that the dismissal was unfair and wrongful.
The conclusion that the Claimant contributed to his dismissal by reference to his culpable and misleading exaggeration of the effects of the accident and injury was open on the evidence and findings and not in error of law.
Other matters raised by appeal and cross-appeal were rendered academic by those conclusions.

Simler DBE J
[2015] UKEAT 0295 – 15 – 0312
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565089

EAT The Claimants brought claims for pre-termination detriments that were alleged to have been imposed as a result of their making protected disclosures. After they had lodged their claims they resigned and wished to claim for constructive dismissal as well. The Employment Tribunal permitted them to amend their Particulars of Claim to permit that claim and directed that there should also be a Scott Schedule giving Further Particulars of matters that were set out in very general terms in the original pleading. Later the Employment Tribunal conducted a Preliminary Hearing, at which the Employment Judge decided (1) that it was not necessary to give permission for a further amendment to be made in relation to the constructive dismissal claim; (2) that permission was required to amend the pre-termination detriments part of the claim but that, since those matters would very largely be before the Employment Tribunal in any event because of the constructive dismissal claim, there would be no prejudice to the Respondent and permission should be granted.
Held, allowing the appeal, the Employment Tribunal had erred in law as to the approach to be taken to the exercise of its broad case management discretion in the circumstances of this case. The Particulars of Claim, even after amendment, did require further amendment if reliance was to be placed on a great many allegations of fact which had not been pleaded to date. Further, that error of law then tainted the Employment Tribunal’s exercise of discretion in relation to the pre-termination detriments part of the case. Accordingly, the matter would be remitted to a different Employment Judge to decide in accordance with the Judgment of the Employment Appeal Tribunal.

Singh J
[2015] UKEAT 0251 – 15 – 1112
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565091

EAT RACE DISCRIMINATION – Comparison
An Employment Tribunal considered 28 matters said to amount to acts of race discrimination, arising in relation to the employment of the Claimant as a solicitor for the Defendant council. In respect of each it asked if it had caused a detriment, but did not enquire if it was an act of less favourable treatment than that given to those of a race different from that of the Claimant. It did not consider any of the comparators where they were named in respect of the allegations, nor explore the characteristics of an hypothetical comparator to assess if such a person would have been less favourably treated. There was one exception to this – central to the Claimant’s case was that she should have been appointed to a post as head of employment, rather than the woman who was. This was a comparison. However, there was no consideration whether the two were in materially the same circumstances: the successful candidate had applied for the post (the Claimant had not), and was an employment specialist, as she was not, and the Employment Tribunal did not consider whether these features vitiated the comparison. It thus wrongly concluded the burden of proof had shifted, in circumstances where it had merely asked whether the acts of the Respondent had caused detriment.
Secondly, the Employment Tribunal took a blanket, across-the-board approach when deciding that the burden of proof shifted in respect of all the allegations: this was in error, since it should have asked in respect of each whether the burden shifted, but did not.
Thirdly, the Employment Tribunal made material errors of fact.
Fourthly, it found that there had been victimisation by the acts of a Mr Thomson in causing the dismissal of the Claimant because she had done two protected acts. Since the only detriment alleged was dismissal, and the second act was the issuing of a claim form complaining of the dismissal, the finding could not be sustained on that ground: and in respect of the earlier protected act, there was no evidence (as there needed to be) that Mr Thompson knew of the act, as he would have to do if his actions were because the Claimant had done the protected act.
Finally, the parties agreed that the Employment Tribunal was in error in finding that the same act was both harassment and discrimination, since to do so was contrary to the provisions of section 212 of the Equality Act 2010.
Appeal allowed: case remitted to a fresh Tribunal for determination.

Langstaff P J
[2015] UKEAT 0045 – 15 – 0411
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565088

EAT Constructive Dismissal. The claimant was employed as an engineer by the respondent. Following disciplinary proceedings in respect of failure to follow engineering procedures he was dismissed. He appealed. The appeal was successful to the extent that he was demoted instead of dismissed. He appealed unsuccessfully to the next level of appeal. He resigned in response to the demotion. At the ET it was agreed by counsel for each party that if there was a dismissal, it was unfair. The ET found that there had been a constructive dismissal, which was unfair. It found that the claimant had contributed to the extent of 50% by his behaviour. The respondent sought to argue that the ET erred by finding that the term of trust and confidence in the contract of employment had been breached by demotion, when the claimant had at first been dismissed. It argued that the finding of breach in respect of the demotion was perverse. The respondent argued that the ET had erred in failing to ask itself if the demotion was within the range of reasonable responses that an employer might make, and that it should have distinguished the case of Bournemouth University v Buckland [2010] EWCA Civ121. It argued that the case of Hogg v Dover College [1990] ICR 39 was authority for the proposition that the respondent could rely on the dismissal of the claimant, and that dismissal should be tested by the range of reasonable responses test.
Held: the ET did not make any error of law. The respondent sought to raise points not raised before the ET, giving no good reason why that should be allowed. In any event, the respondent’s grounds of appeal did not disclose any errors of law

Lady Stacey
[2015] UKEAT 0016 – 15 – 1112
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565090