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

VICTIMISATION DISCRIMINATION
VICTIMISATION DISCRIMINATION – Protected disclosure
SEX DISCRIMINATION – Post employment
TRANSFER OF UNDERTAKINGS
The Claimant left the service of Greater Manchester Police Authority (‘GMPA’), having agreed a settlement of claims of sex discrimination against it. Eighteen months later, in accordance with the Police Reform and Social Responsibility Act (‘PRSRA’), the GMPA ceased to function: its policing role was thereafter performed by the Office of the Police and Crime Commissioner (‘PCCO’). The Claimant wished to claim for acts of sex discrimination by the PCCO and the Commissioner, harassment, and victimisation of her for not having complained of sex discrimination against the GMPA, though she was not and never had been employed by the PCCO. An Employment Tribunal held it had no jurisdiction to consider her claim. The Claimant appealed, arguing that Schedule 15 of the PRSRA, paragraph 5, provided that the PCCO succeeded to the liabilities of the GMPA, and that the duty not to discriminate was such a liability; that in any event, section 108 Equality Act had that effect, and it was necessary to provide for post-termination claims of discrimination and victimisation under the Equality Act and the Employment Rights Act (in respect of whistleblowing) to ensure the effectiveness of the anti-discrimination provisions and of the revised Equal Treatment Directive 2006/54. It was held that ‘liability’ held its natural meaning, and the context tended (contrary to the Claimant’s submissions) to confirm this; that in order to ground liability section 108 required a relationship which had to be between employer and employee, and the Claimant had never been an employee of the PCCO; and that the Equal Treatment Directive did not require that a different interpretation be given to the Act nor was it necessary for it to be effective that there should be one.

[2015] UKEAT 0222 – 15 – 1611, [2016] IRLR 280, [2016] ICR 456
Bailii
England and Wales
Citing:
Cited – BP Plc v Elstone and Another EAT 31-Mar-2010
EAT JURISDICTIONAL POINTS
VICTIMISATION DISCRIMINATION: Protected disclosure
The central question in this appeal was whether an employee/worker who complained of suffering a detriment from his current . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 January 2022; Ref: scu.565085

EAT Equal Pay: the claimants challenged the respondent’s Job Evaluation Study. They argued it was invalid because it produced two separate scores for each job; further, it was not shown to be objective. They argued that the ET had inverted the onus of proof and erred in its treatment of expert evidence.
Held: the ET had made findings it was entitled to make. There was no error of law in the ET’s decision.
Pay Protection: the claimants argued that the respondent had shown no justification for its pay protection policy, which protected pay of those in detriment prior to implementation.
Held: the ET did not set out a legitimate aim and then consider whether the pay protection policy was a proportionate way of achieving that aim.
Appeal allowed in part.

Lady Stacey
[2015] UKEAT 0011 – 14 – 1205
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565073

EAT UNFAIR DISMISSAL – Mitigation of loss
An employer appealed against an award in respect of unfair dismissal, where the Claimant had worked as a carpenter for the employer but he had been treated for tax purposes as self-employed. The ET found that it was reasonable for him to have gone back to self-employment (which he had enjoyed for some eight years prior to entering into the service of the employer) but that there were employment opportunities ‘out there’ in which he might earn more, though he chose deliberately to remain self-employed. A ground that the Judge had not adequately reasoned his conclusion of fact that the Claimant had acted reasonably between dismissal and the date of the Employment Tribunal hearing was dismissed, with observations about the proper approach to mitigation of loss; a second ground that the Employment Tribunal was wrong to assess future loss as being restricted to three months loss was also dismissed on a proper reading of the Judgment; a third ground as to computation of the net loss was similarly dismissed since the material to support the appeal had not been advanced, nor was there material to show that the argument had been advanced below, and in its absence there was no proper basis to think the Judge had been in error of law; and a fourth ground (that an award for loss of employment rights should not have been made since the Claimant intended to remain self-employed and had in effect suffered no real loss) dismissed because it had not been argued below, but in any event there was no proper basis for thinking the assessment of loss was flawed.

Langstaff P J
[2015] UKEAT 0184 – 15 – 2210, [2016] ICR D3
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565076

Unfair dismissal – reasonableness of dismissal by reason of conduct that did not amount to gross misconduct – remitted hearing
The ET had originally found the Respondent’s dismissal of the Claimant was unfair. In so doing, it had considered it unfair that, at the appeal stage, the Respondent had purported to aggregate individual acts of misconduct to justify a finding of gross misconduct. On the Respondent’s successful appeal, the matter was remitted to the same ET for reconsideration, this time asking only the questions raised by section 98(4) Employment Rights Act 1996.
On the remitted hearing, the ET accepted that the conduct found proven at the disciplinary appeal stage was as stated by the Respondent. Asking whether, in those circumstances, the decision to dismiss fell within the band of reasonable responses, the ET concluded it did, albeit at the extreme end of the range. The dismissal was not unfair.
On the Claimant’s appeal:
Dismissing the appeal. The ET’s reasoning on the remitted hearing had to be read along with those parts of its earlier reasoning that had not been the subject of the previous appeal. Adopting that approach, it was apparent that there was an evidential basis upon which it could conclude that alternatives to dismissal (including warning the Claimant about her conduct) had been considered by the Respondent in the disciplinary process. It was also apparent that the ET itself – by considering the potential range of possible responses – had taken into account the possibility of lesser sanctions but had still concluded that dismissal fell within the range. No error of law was disclosed.

Eady QC HHJ
[2015] UKEAT 0179 – 15 – 2310
Bailii
Employment Rights Act 1996 98B
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565078

[2015] UKEAT 0156 – 14 – 2310
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565080

EAT Equality Act 2010 sections 5, 13(1) and (2), 23 and 39(2)(d)
Direct age discrimination – different treatment of those aged over 50.
Held: Allowing the appeal.
(1) The ET had erred in its approach to the question of comparison; wrongly relying on the differences attributable to the ages of the Claimant and his comparators (Lockwood v Department of Work and Pensions [2013] IRLR 941 CA).
(2) It had then erred in its alternative finding that there was no less favourable treatment. It had considered the Claimant’s case on a basis that was not before it. As the Respondent conceded, the failure to afford the Claimant the opportunity to apply for voluntary redundancy could amount to a detriment and to less favourable treatment in these circumstances.
(3) Finally, in considering (as a further alternative) the reason for the less favourable treatment, the ET had erred in failing to adopt the correct – but for – test, where the reason for the treatment (the Claimant’s ability, as an employee aged over 50, to apply for early retirement if accepted for voluntary redundancy) itself imported the relevant characteristic, age (applying James v Eastleigh Borough Council [1990] 2 AC 751 HL, R (E) v Governing Body of JFS [2010] 2 AC 728 SC and Bull v Hall [2013] UKSC 73 SC).
The conclusion that there was no direct age discrimination would be set aside and substituted by a finding that, subject to the ET’s (outstanding) finding on justification, the Claimant’s case had been made out. The matter would be remitted to the same ET for consideration of the question of justification.

Eady QC HHJ
[2015] UKEAT 0162 – 15 – 1610, [2016] IRLR 268
Bailii
Equality Act 2010 5 13(1) 13(2) 23 39(2)(d)
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565077

EAT HARASSMENT – Conduct
HARASSMENT – Purpose
Equality Act 2010 sections 13(1), 23 and 26
In circumstances in which the Claimant had been instructed not to speak Russian in the workplace, had the Employment Tribunal erred in dismissing her claims of direct race (national origins) discrimination and/or harassment related to her race (national origins)?
Held:
Dismissing the appeal. The ET had correctly proceeded on the basis that it was possible for such an instruction (where linked to an employee’s race/national origins) to amount to an act of direct race discrimination/harassment (applying Dziedziak v Future Electronics Ltd UKEAT/ 0270/11). It had, however, found that (i) the same instruction had been given to the Claimant’s named comparators (even if not actually passed on) and (ii) would have been given to ‘some other employee speaking some language other than English in circumstances that gave [the employer] cause for concern’. The ET had thus reached permissible conclusions on the case whether take to be one of actual comparison (as put by the Claimant) or on the basis of a correctly constructed hypothetical comparator.
In any event, the ‘intrinsic link’ in Dziedziak only went to shift the burden of proof; the EAT had allowed that there might be an explanation other than race. In the present case, the ET had accepted there was such an explanation. It had concluded that any difference in treatment was not because of race, a permissible conclusion given its findings of fact that (i) the employer considered it important that conversations within the workplace should be capable of being understood by English-speaking managers (paragraph 11), (ii) this was to be seen in the context of the Respondent’s involvement in animal testing which had previously made it the subject of attention from animal rights activists, including violent assaults on its employees (paragraph 3), and (iii) given the unusual behaviour displayed by the Claimant as an employee embarking upon a new career, which had led the Respondent to wonder whether her behaviour was explicable by the fact that she was an animal rights infiltrator (paragraphs 10 to 11).
Turning to the harassment case, the reason for the instruction (the conduct the Claimant contended amounted to harassment) was not because the Claimant was a Russian national but because of the suspicions the Respondent reasonably had about her behaviour and the context in which it operated (paragraph 56). In any event, the ET made the alternative, permissible finding that there was no evidence that the instruction had the relevant purpose or effect.

Eady QC HHJ
[2015] UKEAT 0186 – 15 – 2010), [2016] IRLR 338
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565079

UNFAIR DISMISSAL – Automatically unfair reasons
The Appellant contended that he had been dismissed by reason of the fact that he made a protected disclosure within the meaning of section 43B of the Employment Rights Act 1996. The Employment Tribunal held, at a Preliminary Hearing, that the disclosure made was not capable of amounting to a protected disclosure as it did not amount to information tending to show the breach of a legal obligation (here, a funding agreement between the Respondent and another public body) and the Appellant could have no reasonable belief that there had been such a breach as he had not seen the funding agreement.
The appeal was allowed as the Employment Tribunal had (1) not addressed the question of whether or not the information that the Appellant produced to the Tribunal, indicating that he had complained about not being allowed to do acts required by his job description and being required to act allegedly contrary to the Respondent’s finding bid and strategic plan, implicitly amounted to information that the Respondent was not complying with the funding agreement as the job description, bid and strategic plan were the means by which the terms of the funding agreement were to be implemented, (2) erred in ruling that the Appellant could not have a reasonable belief that there had been a breach of a legal obligation when he had not seen the funding agreement, and (3) did not address the question of whether or not the Appellant had disclosed information tending to show that the Respondent had concealed information about that alleged breach. For those reasons, the appeal was allowed and the matter remitted to a differently constituted Tribunal for consideration in accordance with the terms of the Judgment.

Lewis J
[2015] UKEAT 0409 – 14 – 0610
Bailii
Employment Rights Act 1996 43B
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565081

EAT Appeal from Registrar’s Order – whether the appeal was in time
The appeal raised two questions:
(1) Whether the Employment Tribunal’s re-issue of the Judgment under a certificate of correction meant that time began to run from the when the re-issued Judgment was sent out? If so, the appeal had been served in time.
If not;
(2) Whether the Claimant’s appeal was validly served in time by his representative having provided supporting documentation by means of an emailed link to a Dropbox zip file?
Held:
Dismissing the appeal.
The correction of a typographical error under Rule 69 ET Rules 2013 did not give rise to a new date from which the time for an appeal would start to run; it would not do so unless there was a substantive change to the Judgment (Aziz-Mir v Sainsbury’s Supermarket plc UKEATPA/ 0537/06). This point was made plain by the certificate of correction and the Claimant can have been under no misapprehension about this.
The documentation that was required to be served to validly institute an appeal to the Employment Appeal Tribunal (EAT Rules 1993, Rule 3(1)) was clearly set out. Along with the Notice of Appeal, this documentation had to be ‘served’ within the requisite time period (Kanapathiar v London Borough of Harrow [2003] IRLR 571 EAT; O’Cathail v Transport for London [2012] IRLR 1011 CA). The Practice Direction made plain that it had to be ‘attached’ (paragraph 3.1). Guidance as to how this might be done (including by email) was set out in the EAT guidance leaflet T440. ‘Service’ by email was achieved when the email and requisite documentation ‘hit’ the EAT server (Patel v South Tyneside Council and Ors UKEATPA/0917/11). As the guidance made clear, that was not achieved by Dropbox link, which did not ‘serve’ the documentation on the EAT but, rather, provided a link to another location where that documentation could be found.

Eady QC HHJ
[2015] UKEAT 0157 – 15 – 2509, [2016] ICR D5
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565075

(Rec 2000,p FP-IA-35,II-157) Officials – Staff report – Action for annulment – Action for damages.

T-164/98, [2000] EUECJ T-164/98
Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.173578

(Freedom of Movement for Workers – Order) Interim proceedings – Request for interim measures – Ignorance of formal requirements – Manifest inadmissibility

T-658/19, [2020] EUECJ T-658/19_CO, ECLI : EU: T: 2020: 71
Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.654838

Safeguarding of Employees’ Rights – Operation of Bus Routes – Judgment – Reference for a preliminary ruling – Directive 2001/23/EC – Article 1(1) – Transfer of an undertaking – Safeguarding of employees’ rights – Operation of bus routes – Re-employment of the staff – Operating resources not taken over – Grounds

C-298/18, [2020] EUECJ C-298/18, [2019] EUECJ C-298/18_O
Bailii, Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.654781

(Judgment) Appeal – Civil service – Officials and other servants – European External Action Service (EEAS) – Remuneration – Staff Regulations – Article 110 – Staff of the European Union posted to a third country – Annex X – Article 1, third paragraph, and Article 10 – Living conditions allowance – Annual appraisal and review – Reduction for staff assigned to Ethiopia – Need to first adopt general implementing provisions – Scope

C-427/18, [2020] EUECJ C-427/18P, ECLI: EU: C: 2020: 109, [2019] EUECJ C-427/18P_O
Bailii, Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.654775

(Opinion) Reference for a preliminary ruling – Social policy – Directive 2003/88 / EC – Organization of working time – Concept of’ working time ‘- Period of break for a worker, during which he is obliged to be available to his employer to go into intervention within two minutes – Obligation to respect legal assessments of a higher court not in conformity with Union law – Primacy of Union law

C-107/19, [2020] EUECJ C-107/19_O, [2021] EUECJ C-107/19
Bailii, Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.654774

Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment – Civil service – Contract staff – Dismissal for manifest unfitness – Proportionality – Article 84 of the CEOS – Liability

T-336/19, [2020] EUECJ T-336/19
Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.654679

(Judgment) Civil service – Officials – Moral harassment – Bundle of decisions adopted by the Commission adversely affecting the applicant – Requests for assistance – Disciplinary proceedings – Dismissal – Withdrawal of the dismissal – New disciplinary procedure – New dismissal

T-786/16, [2020] EUECJ T-786/16
Bailii
European

Employment

Updated: 17 January 2022; Ref: scu.654727

By contract in the respondents’ colliery, fillers, i.e., drawers, received their wages from the colliers with whom they worked. The respondents maintained that the appellant, a filler, was employed and paid by the collier with whom he worked and that they were not responsible for the fact that one week his wage was below the minimum.
Held that the obligation imposed by the Coal Mines (Minimum Wage) Act 1912 obtained irrespective of who actually paid the wages, and that in fact the appellant was employed by the respondents and entitled to demand from them the balance between the wage paid and the minimum rate.

Lord Chancellor (Buckmaster), Lords Atkinson, Shaw, Parker, and Sumner
[1916] UKHL 815, 53 SLR 815
Bailii
Coal Mines (Minimum Wage) Act 1912
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.630666

EAT Unfair Dismissal – Reasonableness of dismissal.

The Honourable Lady Smith
UKEATS/0029/06
EATn
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.258154

EAT 1. The Employment Judge had jurisdiction to consider an extant RRO notwithstanding the fact that the claims had been withdrawn on settlement. The Employment Tribunal was not functus as the Appellants sought to argue.
2. Nor did the RRO expire automatically upon withdrawal. Rule 50(1) of the 2013 Rules permits RROs that are wider in extent and circumstances than RROs permitted under s.11 ETA 1996 and Rule 50(3)(d) of the 2013 Rules.
3. There was no error of law or principle in the balancing exercise conducted by the Employment Judge. Accordingly there was no basis on which to interfere with his conclusion that the Privacy Orders should be revoked.

Simler DBE P J
[2016] UKEAT 0075 – 16 – 1305, [2016] ICR 801, [2016] IRLR 827
Bailii
Employment Tribunals Act 1996 11, Employment Tribunals Rules of Procedure 2013 50
England and Wales

Employment

Updated: 16 January 2022; Ref: scu.564201

EAT Disability Discrimination: Reasonable Adjustments – The Employment Tribunal impermissibly recast the Claimant’s PCP in addressing her reasonable adjustment claim. This error vitiated its decision. The claim would be remitted to a fresh Tribunal.

Simler DBE P J
[2016] UKEAT 0226 – 15 – 1503
Bailii
England and Wales

Employment

Updated: 16 January 2022; Ref: scu.564199

[2016] UKEAT 0180 – 15 – 2203
Bailii
England and Wales

Employment

Updated: 16 January 2022; Ref: scu.564198

[1994] UKEAT 715 – 93 – 1703
Bailii
England and Wales

Employment

Updated: 16 January 2022; Ref: scu.209798

The claimant brought numerous grievances against senior managers. These were concerned with, amongst other matters, the failure of senior managers to include him in meetings which he thought he should be attending. Management considered that decisions as to who should attend were a matter for them. The grievances could not be resolved at the informal stage, in part because the claimant wished to discuss his grievances informally with his line manager who had no authority to resolve concerns about more senior managers. However, the claimant refused to progress any of the grievances to the formal stage, instead seeking to retain the ability to do so, and neither did he withdraw the grievances. A grievance hearing was fixed but the claimant refused to attend despite being informed that attendance was considered to be a reasonable instruction. The grievance hearing proceeded and the grievances were not upheld. The respondent considered the claimant’s conduct to amount to gross misconduct in that he had brought numerous vexatious and frivolous grievances and had refused to comply with a reasonable management instruction to attend the meeting. He was dismissed. The ET found that his dismissal was fair. The claimant appealed. The principal ground of appeal was that the ET had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s conclusions were perverse.
Held, dismissing the appeal, that the ET had not erred in its approach. The test under s.98(4) of the Employment Rights Act 1996 involved a consideration of all the circumstances, one of which might include, in some cases, the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. However, there was no such contractual element in this case and an analysis on that basis was not required. The ET was entitled to conclude that the employer had acted reasonably in treating the reason for dismissal, namely the claimant’s conduct as described, as being a sufficient reason to dismiss in all the circumstances.

The Honourable Mr Justice Choudhury (President)
[2021] UKEAT 2020-000187
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 16 January 2022; Ref: scu.670765

EAT Unfair Dismissal: Reasonableness of Dismissal – DISABILITY DISCRIMINATION – Whether the Employment Tribunal, in requiring direct connection to be established between disability and conduct which led to dismissal misinterpreted section 15 Equality Act 2010 and so to conclude that dismissal was not unfair. Appeal allowed – remitted to the Employment Tribunal for redetermination.

Mitting J
[2016] UKEAT 0318 – 15 – 1803
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563301

Jurisdictional Points: Working Outside The Jurisdiction – UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
The Claimant was a master mariner who worked on cruise ships predominantly outside the UK territorial waters. The Employment Appeal Tribunal held that there was no error of law in the decision of the Employment Tribunal that it had jurisdiction to decide the Claimant’s claim for unfair dismissal.

Laing DBE J
[2016] UKEAT 0001 – 16 – 1105
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563303

EAT Unfair Dismissal: Contributory Fault – Having found that the Claimant was guilty of conduct that was ‘plainly culpable’ and amounted to misconduct, which was the reason for her dismissal, the Employment Tribunal erred in holding that her actions did not to any extent cause or contribute to her dismissal. Its conclusion that what led to her dismissal were the unfair and unreasonable failings by the Respondent to consider and take account of the mitigating circumstances in her case (when it unfairly dismissed her) wrongly focussed on the Respondent’s conduct rather than hers and confused causation of the dismissal with causation of the unfairness.
That conclusion infected the Employment Tribunal’s approach to reduction of the basic award too. The Employment Appeal Tribunal did not have confidence that the Employment Tribunal applied its mind properly to the statutory question whether the Claimant’s culpable misconduct before the dismissal was such that it would be just and equitable to reduce the basic award. Although no causation test applies, this discretion is focused on the conduct of the employee before the dismissal.

Simler DBE P J
[2016] UKEAT 0326 – 15 – 2203
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563299

(Judgment) Civil service – Staff of the ECB – Assessment exercise – Assessment report 2016 – Author of the assessment report – Manifest error of assessment – Sick leave – Reassignment – Remuneration – Decision refusing the benefit of a salary increase – Jurisdiction of the author of the act adversely affecting the person – Liability

T-215/18, [2020] EUECJ T-215/18, ECLI: EU: T: 2020 : 92
Bailii
European

Employment

Updated: 14 January 2022; Ref: scu.654923

Order : Organisation of Working Time – Concept of ‘Worker’ – Parcel Delivery Undertaking – Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court – Directive 2003/88/EC – Organisation of working time – Concept of ‘worker’ – Parcel delivery undertaking – Classification of couriers engaged under a services agreement – Possibility for a courier to engage subcontractors and to perform similar services concurrently for third parties

C-692/19, [2020] EUECJ C-692/19_O
Bailii
European

Employment

Updated: 14 January 2022; Ref: scu.654965

Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment

T-605/18, [2020] EUECJ T-605/18
Bailii
European

Employment

Updated: 14 January 2022; Ref: scu.654840

EAT Jurisdictional Points: Extension of Time: Reasonably Practicable – Extension of time: just and equitable
The Employment Judge erred in treating the fact that the Appellant presented a claim in time (albeit a defective one) as meaning that a second claim raising the same complaint could reasonably practicably have been presented in time. The focus should have been on the second claim and whether there was any impediment to timely presentation of that claim. The failure to address that question was an error of law.
The Employment Judge further erred in failing to have regard to the prejudice to the Appellant in determining whether it was just and equitable to extend time in reference to the unlawful race discrimination complaints. This was a material factor not addressed by her. Moreover, the prejudice was all one way.

SIMLER dbe p j
[2016] UKEAT 0342 – 15 – 0803
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563298

Richard Seymour QC HHJ
[2014] EWHC 3431 (QB)
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563237

Application for permission to appeal.

Longmore LJ
[2016] EWCA Civ 185
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563245

From the Supreme Court of Mauritius – whether constructively dismissed

Lady Hale, Lord Kerr, Lord Hughes
[2016] UKPC 11
Bailii
Commonwealth

Employment

Updated: 14 January 2022; Ref: scu.563150

EAT Unlawful Deduction From Wages – UNFAIR DISMISSAL – Contributory fault
The appeal challenges a Judgment of the Employment Tribunal following remission as failing to address the unlawful deduction claim; and dealing with a Polkey argument in error rather than an argument based on contributory conduct.
Although the Judgment could have been clearer, all necessary findings of fact were made disposing of the wages claim.
As for the contributory conduct issue, the Judge wrongly applied the Polkey test, but this error was not material in light of the clear findings he made which lead inevitably to the same result that there should be a 100 per cent reduction in both basic and compensatory awards.

Simler DBE P J
[2016] UKEAT 0292 – 15 – 2302
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562534

EAT Unfair Dismissal : Procedural Fairness/Automatically Unfair Dismissal – UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Appeal Tribunal held that the Employment Tribunal had erred in law in deciding that the Claimant was unfairly dismissed. The Employment Tribunal did not make any finding whether the Respondent had a reasonable belief that the Claimant was guilty of the misconduct described in the letter of dismissal; and it took into account irrelevant considerations, and failed to take into account relevant considerations, in holding that the dismissal was procedurally and substantively unreasonable.

Laing DBE J
[2016] UKEAT 0319 – 15 – 1102
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562532

EAT Equal Pay Act – UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Equal Pay – Unauthorised deductions – Notice entitlement
Upon her initial appointment with the Respondent, in 2005, the Claimant’s contract had stated she was on a different level of pay to that which was in fact paid to her. As the ET found, the reference in the contract was, however, an error; the amount actually paid to the Claimant represented her true entitlement. In any event, the discrepancy ceased when the Claimant was assimilated on to Agenda for Change terms and conditions: the pay level to which she was assigned would have been the same whichever rate had previously been correct. This was, therefore, not an on-going issue. It did not impact upon the Claimant’s equal pay claim and the higher rate of pay received by her comparator was justified by material differences between his case and her case in any event. Further, there was no unauthorised deduction in pay: the Claimant had received that to which she was entitled. As for her notice pay claim, the Claimant had simply not provided any evidence to support this.
Upon the Claimant’s appeal:
Dismissing the appeal. The way in which the Claimant now sought to argue the case was not as it had been put before the ET. In any event, the ET’s unchallenged findings meant that the points taken on appeal simply could not arise. The initial error did not impact upon the equal pay claim and could not be relied on in respect of any unauthorised deductions claim or notice pay complaint.

Eady QC HHJ
[2016] UKEAT 0240 – 15 – 2502
Bailii
Equal Pay Act 1970
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562544

EAT Unfair Dismissal: Reinstatement/Re-Engagement
1. In making a re-engagement Order the Employment Tribunal erred by failing to specify the nature of the employment within section 115(2)(b) and by failing to address practicability of re-engagement, particularly having regard to the Claimant’s own evidence.
2. The question of re-engagement would be remitted to the same Tribunal accordingly.

Simler DBE P J
[2016] UKEAT 0328 – 15 – 1902
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562536

EAT Part Time Workers – The Employment Appeal Tribunal (‘the EAT’) allowed an appeal against a Decision of the Employment Tribunal (‘the ET’) refusing permission to the Respondent to raise an argument on remedy. The ET held that it had already decided the issue at a previous hearing – it having been conceded by the Respondent – and the Respondent could not re-open it. The EAT held that the ET had not decided the issue, which went to remedy, not liability.

Laing DBE J
[2016] UKEAT 0247 – 15 – 1002
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562537

EAT Statutory Discipline and Grievance Procedures: Whether Applicable – Whether infringed – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
The employee appealed against a decision that his dismissal was not unfair. The employee argued that the Employment Tribunal erred in law in substituting its view for that of the employer, and in not holding that the dismissal was unfair because the employer had refused to permit him to appeal against his dismissal. The Employment Appeal Tribunal rejected these arguments on the facts.

Laing DBE J
[2016] UKEAT 0283 – 15 – 0302
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562535

EAT Practice and Procedure: Amendment – PRACTICE AND PROCEDURE – Case management – PRACTICE AND PROCEDURE – Striking-out/dismissal – PRACTICE AND PROCEDURE – Costs – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke – The Employment Appeal Tribunal held that an Employment Tribunal had given adequate reasons for it decision not to strike out the Respondent’s Defence, not to hold that the Respondent was in Contempt of Court, and not to make any Order for costs against the Respondent.

Laing DBE J
[2016] UKEAT 0298 – 15 – 0202
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562542

EAT Transfer of Undertakings : Transfer – TRANSFER OF UNDERTAKINGS – Insolvency
The Appeal
In relation to Regulation 3(3)(a)(ii) of TUPE it is necessary to identify what the client’s intentions were ‘immediately before the transfer’ as to the activity to be carried out by the new contractor after the transfer. This involves identifying both the activity or activities and the client’s intentions and that means identifying the underlying task or function of the client, which forms the activity or activities, the subject of the transfer, and the client’s intentions in relation to the carrying out of the activity or activities by the new contractor. Finally what has to be decided is whether the client intends the new contractor to carry out that activity or activities in the context of a single specific event or of a task of short duration.
It is important for Employment Tribunals in this relatively complicated statutory framework to be left to make the simple factual decisions, which are called for by the text of the statutory instrument. That is what the Employment Tribunal had done and the appeal was dismissed.
The Cross-Appeal
The decision as to whether or not there has been a transfer of a service provision change under Regulation 3(1)(b)(ii) of TUPE, and, if so, when, involves an objective assessment of the facts, in which, although the subjective intention of the parties is a relevant consideration, it is not a determinative factor; Celtec Ltd v Astley and Ors [2005] IRLR 647 and Housing Maintenance Solutions Ltd v McAteer and Ors [2015] ICR 87 considered. The Employment Tribunal had misdirected itself as to the significance of the subjective intention of the parties and had reached a conclusion about the reliability of a piece of evidence, which no reasonable Tribunal properly directing itself could have reached on the evidence. The cross-appeal was allowed and on the basis that evidence should have been regarded as an indisputable fact and in accordance with paragraph 21 of the Judgment of Laws LJ in Jafri v Lincoln College [2014] ICR 920 a finding that the transfer had taken place on 16 November 2009 was substituted for that of the Employment Tribunal that it had taken place the following day.

Hand QC HHJ
[2016] UKEAT 0451 – 15 – 2201
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562528

EAT Disability Discrimination: Compensation – Ground 1 of the grounds of appeal argued that the Judgment of the Court of Appeal in Fox v British Airways plc [2013] EWCA Civ 972, [2013] ICR 1257 pursuant to which the estate can recover against the Respondent losses which the Claimant and her children have suffered was wrongly decided but it is, of course, binding on this Tribunal, and counsel reserved the Respondent’s position for further argument in the Court of Appeal. Therefore we dismissed that ground. Grounds 3 and 4 of the grounds of appeal raised the question as to whether the Employment Tribunal had reached a perverse conclusion as to whether there was an 80 per cent chance of the deceased still having been employed at the date of his death. We concluded that there was sufficient evidence to support that conclusion and dismissed the appeal.

Hand QC HJH
[2016] UKEAT 0152 – 15 – 2001
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562524

Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke – PRACTICE AND PROCEDURE – Perversity
PRACTICE AND PROCEDURE – Disposal of appeal including remission
UNFAIR DISMISSAL – Constructive dismissal
DISABILITY DISCRIMINATION – Reasonable adjustments
Bias – perversity – inadequacy of reasons
Incorrect approach to disability discrimination/reasonable adjustments claim under sections 20 and 21 Equality Act 2010 and in approach to constructive unfair dismissal for purposes of section 95 Employment Rights Act 1996
The focus of the appeal was on the Claimant’s detailed attack on the ET’s findings of fact adverse to her; she complained that these were perverse and thus evidenced bias. In the alternative, she complained that they were inadequately reasoned.
The Claimant also complained that the ET had incorrectly approached her claims under the Equality Act 2010 and under the Employment Rights Act 1996.
Held: dismissing the appeal on all grounds.
Having gone through each of the Claimant’s objections to the ET’s findings of fact/complaints of inadequate reasoning, the EAT was satisfied that the conclusions reached were not perverse: they amounted to permissible conclusions given the evidence before the ET. They were, further, adequately explained. There was no evidence of bias.
Having thus concluded that the ET’s findings of fact were not susceptible to challenge, the remaining grounds of appeal really fell away. In particular, on the disability discrimination complaint, nothing had been identified as amounting to an arguable PCP given the ET’s findings of fact. The ET had, in any event, found that the Claimant was not placed at a substantial disadvantage (against which there was no challenge). That being so, the reasonable adjustments claim necessarily fell away. As for the ET’s rejection of the Claimant’s complaint of constructive dismissal, the primary finding in this regard was that no breaches of contract had occurred. There being no challenge to that finding, there could be nothing in this ground of appeal.

Eady QC J
[2016] UKEAT 0198 – 15 – 2701
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562527

EAT Victimisation Discrimination – Protected disclosure – PRACTICE AND PROCEDURE
The Claimant claimed to have made four protected disclosures and both to have suffered detriment and dismissal as a consequence. The Employment Tribunal held that the first disclosure, made to a person other than the employer, was not protected: it had not been argued that it was, under section 43C(1), as it might have been, but under section 43C(2) and did not meet the factual requirements of that subsection, although the former subsection had been mentioned in additional information added to the ET1. This was held neither to fall foul of the principle in Segor v Goodrich Actuation Systems Ltd nor would discretion be exercised to permit the argument on appeal (Glennie v Independent Magazines (UK) Ltd applied). The detriment suffered by the second disclosure (suspension) was held out of time. It had not been argued that it was within time. It was (see Tait v Redcar and Cleveland Borough Council), but discretion would not be exercised to permit this argument either, not least because the Employment Tribunal had gone on to consider the cause of the suspension and found it had nothing whatsoever to do with making the disclosure relied on; and in any event given this latter finding the appeal could not succeed in any event. The third disclosure was rightly held not to be a disclosure of information, and although there was room to doubt whether the fourth was the same (Employment Tribunals had to take care to ensure they did not fall into the trap of thinking post-Cavendish Munro v Geduld that an alleged disclosure had to be either allegation or information, when reality and experience taught it might well be both), it had been held not to be a qualifying disclosure because it did not tend to show a breach falling within 43B(1); the statutes relied on at appeal to suggest it was provided only that public bodies were obliged to establish a framework for dealing with issues of child safeguarding, and there was nothing about the information (if it was indeed information) that showed a breach of those arrangements or asserted a specific duty resting upon the person against whom the allegation arising from the information was directed. Appeal dismissed.

Langstaff J
[2016] UKEAT 0260 – 15 – 2601
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562522

EAT Practice and Procedure : Striking-Out/Dismissal – VICTIMISATION DISCRIMINATION – Protected disclosure
1. Claims based on protected disclosures were struck out at a Preliminary Hearing without evidence being heard, on the basis that the disclosures, though highly relevant to the Claimant, could not be matters of public interest in the Claimant’s reasonable belief.
2. The Employment Judge was wrong to strike out the claims. It is reasonably arguable that the Claimant, even if she is the principal person affected, reasonably believed the complaints she made to have been in the wider interests of employees generally, or in the wider public interest she identified. Whether that is so is a question of fact.
3. Accordingly, there are disputed facts on the question of public interest in this case that should not have been determined without hearing evidence.

Simler DBE P J
[2016] UKEAT 0272 – 15 – 2201
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562525

EAT Unfair Dismissal: Reasonableness of Dismissal – How should section 98(4) Employment Rights Act 1996 be viewed when conduct gives rise to two allegations (grounds A and B), both of which the dismissing officer finds proved but only one of which (ground A) is regarded as justifying dismissal, when on appeal the manager conducting the appeal disagrees and regards both as justifying dismissal and then the Employment Tribunal concludes that dismissal on ground A was not reasonable but accepts that the appeal manager was acting reasonably to conclude that the dismissing manager was wrong to think that ground B did not justify dismissal? What constitutes the dismissal in those circumstances? Is the situation analogous to a rehearing appeal curing a defect in the dismissal process? Because the Employment Tribunal had not considered these questions the matter was remitted to the same Employment Tribunal to do so.

Hand QC HHJ
[2016] UKEAT 0280 – 15 – 2101
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562519

Central Arbitration Committee – A Panel of the Central Arbitration Committee held that the University had not complied with Regulation 14 of the Information and Consultation of Employees Regulations 2004. The University had recognised a need to negotiate an agreement to inform and consult its employees. To do so it was to put in place arrangements for the employees to appoint or elect representatives and for all employees to take part in the process of appointment or election. The Panel held it had done neither when it asked trade unions which it recognised, whose members were a minority of the workforce, to put up four names who would be the representatives of all employees, and then held a ‘Yes’/’No’ vote on nominees identified by the employer and trade unions jointly, arranging that all employees would ‘take part’ in the appointment and election. An appeal was dismissed: having regard to the purpose of the Regulations, which implemented a Directive seeking to ensure the effective engagement of all employees, ensuring that the rights would be effective, and endorsing the application of good industrial practice, the decision of the Panel was one which on the particular facts of the case the Panel was entitled to reach.

Langstaff J
[2016] UKEAT 0285 – 15 – 1501
Bailii
Information and Consultation of Employees Regulations 2004
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562529

The employment tribunal erred in its approach to causation in the protected disclosure detriment claim and failed to properly analyse whether the making of the protected disclosures was properly severable from ancillary matters.

His Honour Judge James Tayler
[2021] UKEAT 2020-000295
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.670764

His Honour Judge N Butter QC
[1996] UKEAT 1205 – 95 – 0103
Bailii
England and Wales

Employment

Updated: 13 January 2022; Ref: scu.208289

The claimant in the employment tribunal was a litigant in person. Upon consideration of her claim form under rule 12 Employment Tribunals Rules of Procedure 2013, a judge determined that there were two complaints, being of (a) ordinary unfair dismissal, in respect of which the claimant lacked qualifying service, and which was dismissed; and (b) breach of contract, which was permitted to proceed.
On appeal the claimant contended that her claim form indicated that she was seeking to bring a complaint that she was unfairly dismissed for making a protected disclosure, and that the judge had erred by precluding such a claim under rule 12. The claimant had subsequently written a letter, which the tribunal had treated as an application for reconsideration of the rule 12 decision under rule 13. However, it appeared that that application had not been determined.
Held: the judge had erred by precluding a possible protected disclosure complaint at the rule 12 stage. A proposed complaint should be dismissed for lack of jurisdiction under rule 12 only in the clearest of cases. The claimant had done enough in the claim form to indicate that she was seeking to pursue a protected disclosure complaint. The particulars in the claim form did not properly explain what she contended she had done that amounted to the making of a protected disclosure, nor why she considered that the relationship had been terminated because of any such disclosure by her; but she was a litigant in person and these were matters that could properly be explored at the initial consideration stage under rules 26 – 28. The tribunal had power under rule 26 to request further information from her, and to consider whether there was jurisdiction to entertain the complaint and/or whether it had no reasonable prospect of success. If the tribunal proposed to dismiss the complaint under those rules, the claimant would have the safeguards that reasons would be required, and she would have the opportunity to request a hearing before a final decision was taken.
The fact that the tribunal had also at a later hearing (when considering the breach of contract claim) determined that there was no direct contract between the claimant and the respondent, was not necessarily decisive against there being jurisdiction to consider a possible protected disclosure complaint, having regard to Employment Rights Act 1996 section 47K.

His Honour Judge Auerbach
[2021] UKEAT 2020-001107
Bailii
England and Wales

Employment

Updated: 13 January 2022; Ref: scu.670761

Moore-Bick VP CA, McCombe, Beatson LJJ
[2016] EWCA Civ 382
Bailii
England and Wales

Employment

Updated: 13 January 2022; Ref: scu.562151

EAT Procedural Issues – Employment Tribunal

Levy QC
EAT/1371/00, [2002] ICR 264, [2000] UKEAT 1371 – 00 – 0512
Bailii
England and Wales
Cited by:
See Also – Scotford v Smithkline Beecham EAT 25-Oct-2001
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 January 2022; Ref: scu.265894

EAT Race Discrimination – Victimisation.

The Honourable Mr Justice Bell
EAT/1242/98, [2000] UKEAT 1242 – 98 – 1511
EAT, Bailii
England and Wales
Citing:
See Also – Quashie v London Borough of Greenwich EAT 17-Feb-1999
. .
See Also – Quashie v London Borough of Greenwich EAT 24-Sep-1999
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 January 2022; Ref: scu.265765

[1995] UKEAT 496 – 94 – 1210
Bailii
England and Wales

Employment

Updated: 13 January 2022; Ref: scu.209334

ECJ (Judgment) Public service – Disciplinary proceedings – Disciplinary Board – Temporary staff of the Court of Auditors appointed probationary official at the Commission – Change of place of employment – No declaration of change of duty station to the administration of the Court of accounts – simultaneous applications of the resettlement allowance in the country of origin and the installation allowance in Brussels – Application for reimbursement of moving expenses from Luxembourg to the country of origin – OLAF investigation – Penalty disciplinary – Classification in a lower function group without downgrading – Article 25 of Annex IX to the Staff Regulations – manifest error of assessment – Non-compliance with the adversarial principle – new fact – Obligation to reopen the disciplinary procedure – Proportionality of the penalty – procedural Delay

F-49/15, [2016] EUECJ F-49/15, ECLI:EU:F:2016:72
Bailii
European

Employment

Updated: 13 January 2022; Ref: scu.561982

ECJ (Judgment) Civil service – CEPOL staff – Temporary staff – Contract staff – Place of employment corresponding to the seat of CEPOL – Relocation of CEPOL to Budapest (Hungary) – Corresponding change in the place of employment of members of staff – Contractual consequences – Need for consent from members of staff – Correction coefficient applicable to the new place of employment – Legitimate expectations – Principle of sound administration

F-41/15, [2016] EUECJ F-41/15
Bailii
European

Employment

Updated: 13 January 2022; Ref: scu.561980

ECJ (Judgment) Civil service – Referral to the Tribunal after setting aside – EEAS Staff – Contract staff – Auxiliary contract staff – Reclassification of an auxiliary contract agent contract in contractual agent contract of indefinite duration – Refusal

F-59/13, [2016] EUECJ F-59/13
Bailii
European

Employment

Updated: 13 January 2022; Ref: scu.561991

ECJ (Judgment) Civil service – Staff of the EEAS – Staff Committee – Election of members of the Staff Committee – Validity – Article 1, fifth paragraph of Annex II Status – Electoral Regulations of the EEAS – First ballot – Lack of quorum – extension of the voting period – further extension of the voting period – Lack of organization of a second round of voting – Illegality

F-94/15, [2016] EUECJ F-94/15
Bailii
European

Employment

Updated: 13 January 2022; Ref: scu.561992

ECJ (Judgment) Public service – Officials – Expatriation allowance – Administrative error that led to the non-payment of the expatriation allowance for several years – Act adversely affecting – pay slips does not reflect a decision – Article 82 of the Rules of Procedure – End not to proceeding – Irregularity of the pre – Request pursuant to Article 90, paragraph 1, of the Statute – reasonable time

F-77/15, [2016] EUECJ F-77/15
Bailii
European

Employment

Updated: 13 January 2022; Ref: scu.561993

ECJ (Judgment) Public service – Officials – Obligations – Acts contrary to the dignity of the public service – Mailing insults about another official – Article 12 of the Statute – Disciplinary proceedings – Investigation as a review of the facts – Reprimand – Article 9 paragraph 1 b) of Annex IX to the Staff Regulations – General implementing provisions – procedural irregularity – Consequences of the irregularity

F-23/15, [2016] EUECJ F-23/15
Bailii
European

Employment

Updated: 13 January 2022; Ref: scu.561954

[1999] UKEAT 125 – 98 – 2303
Bailii
England and Wales

Employment

Updated: 13 January 2022; Ref: scu.205031

Jackson, Floyd LJJ, Sir Stanley Burnton
[2016] EWCA Civ 191
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.561218

EAT PART TIME WORKERS
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Appellants’ appeals against decisions of the Employment Tribunal not to extend the time for making claims, on the grounds that it was not just and equitable to do so, were dismissed.

Elisabeth Laing DBE J
[2016] UKEAT 0003 – 15 – 1503
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.561008

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
On three occasions over three days, the Claimant was thought to be having inappropriate and excessive physical contact with the young children (aged 7-8) at an after school hours club which he was employed to run. The employer genuinely thought that he had broken a policy that provided for limited physical contact only and dismissed summarily. The Claimant accepted that the children had sat on his lap (in two cases) and he had held the child in the third but said that his actions were within the policy. The Employment Judge was dismissive of this point in a way that showed he did not properly consider it. Nor did he consider the policy sufficiently – had he done so, he would have seen it allowed for some flexibility as to the occasions on which contact would be acceptable, and that the Claimant was contending that on at least two of the occasions that what he did was within it and the third contact was so fleetingly brief as to be of no significance. He argued that the employer had not taken into account the circumstances and the fact (as he alleged) that other staff at the club also permitted children to sit on their laps. There was some support for this in investigations which the employer undertook after a disciplinary hearing that resulted in dismissal so that the Employment Tribunal wrongly considered that there had been no investigation, but (a) given the consequences of the decision for the future career of the Claimant the investigation should have been thorough and was not, (b) the employer erroneously appeared to declare that if there was a breach there was no room for mitigation yet the Employment Tribunal did not examine this, and (c) if it was not uncommon for such to happen there would be good grounds for thinking a sanction short of dismissal might have been the most that a reasonable employer could have imposed, the appeal was allowed and the matter remitted to a fresh Tribunal for determination of the claim.

Langstaff P J
[2016] UKEAT 0101 – 15 – 2001
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.561006

EAT PART TIME WORKERS
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Appellants’ appeals against decisions of the Employment Tribunal not to extend the time for making claims, on the grounds that it was not just and equitable to do so, were dismissed.

Elisabeth Laing DBE J
[2016] UKEAT 0004 – 15 – 1503
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.561009

EAT UNFAIR DISMISSAL – Polkey deduction
The Claimant was dismissed by the Respondent and brought a claim for unfair dismissal. The Respondent accepted that the dismissal had been unfair because it had not followed its capability procedure. On the issue of compensation, it contended that – even if it had applied its capability procedure – the Claimant would have, in any event, been fairly dismissed for ‘capability’ of some other ‘substantial reason’.
After a contested hearing, the Employment Tribunal found that there was an 85% prospect that the Claimant would have been fairly dismissed no later than three months after the actual date of dismissal. Compensation was correspondingly reduced.
Additionally, an invitation to include – as an aspect of compensation – a sum that might have been paid by way of bonus, if the Claimant had remained in employment, was refused. That was on the basis that the Claimant would have had his employment fairly terminated before the bonus date and/or that it would not have been paid to him if he had been employed simply in the sense of working-out notice of termination of the employment given by his employer
The Claimant brought appeals against both the original decision of the Employment Tribunal and against its refusal of a reconsideration application relating to the above points.
APPEALS DISMISSED
The Tribunal had not erred in law in respect of either point. It had been entitled to entertain, and determine, the invitation to make a Polkey deduction and had made no error in its reasoning. The decision on the bonus issue was unimpeachable.

Luba QC J
[2016] UKEAT 0011 – 15 – 1403
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.561007

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant brought proceedings in the Employment Tribunal raising various complaints, including detriments imposed on the ground of his trade union activities.
During the course of the hearing before the Employment Tribunal and before the conclusion of the Respondent’s evidence there was an application that the Employment Judge (who was sitting with lay members) should recuse herself on the ground of apparent bias. The Employment Tribunal gave a Reserved Judgment refusing that application. The appeal was on the basis that the decision was wrong and the Employment Judge should have recused herself on the ground of apparent bias.
Held the appeal would be allowed. There was no suggestion of actual bias but the Employment Judge had in the particular circumstances behaved in a way that gave rise to apparent bias. A fair minded observer who was informed of all the relevant facts would conclude that there was a real possibility of bias. This was in particular because the Employment Judge had intervened during the evidence of the Claimant and other witnesses which went beyond permissible clarification of the evidence to what was in substance cross-examination and the putting of points that were in the Respondent’s favour.

Singh J
[2015] UKEAT 0104 – 15 – 1812
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.561005