EAT (Disability Discrimination: Direct Disability Discrimination) Reasonable adjustments
DISABILITY DISCRIMINATION – Burden of proof
Neither paragraph 15.5 of the Code of Practice: Employment and Occupation 2004 nor Bowers v William Hill UKEAT/0046/09/DM are authority for the proposition that knowledge of disability in one part of an organisation or on the part of one individual in an organisation means that knowledge can be imputed to the organisation generally or to any or all of its employees for all purposes and in particular in the context of deciding whether there has been discriminatory conduct. On the contrary, paragraph 36 of the Judgment of Underhill LJ in the decision of the Court of Appeal in CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439, [2015] IRLR 562 makes clear that in the case of a sole decision maker it is his or her state of mind not the state of mind of those providing information to the decision maker which is material. Consequently the Employment Tribunal had not erred either by focussing on his intention, motive and knowledge or by not imputing the knowledge of disability of the Occupational Health Department to him. In any event there was no evidence that anybody involved in the dismissal process had acted as they had done because of the Appellant’s disability.
Nor had the Employment Tribunal misdirected itself in relation to reversing the burden of proof. Whilst a false explanation of a difference of treatment in the context of a difference in status, particularly if a lie/dishonesty is, as suggested in paragraphs 26 and 27 of the Judgment in Birmingham City Council and another v Millwood UKEAT/0564/11/DM and in The Solicitors Regulation Authority v Mitchell UKEAT/0497/12/MC likely to be ‘something more’ in relation to shifting the burden of proof that need not always be so. Cases depend on their own facts and here whilst one explanation had been exposed as false, the explanation accepted did not assist in establishing a prima facie case of discrimination and the Employment Tribunal had not erred.
Although a ‘practice’ might involve recurrence as suggested by paragraph 21of the Judgment in Nottingham City Transport Ltd v Harvey [2013] EqLR 4 and paragraph 19 of the Judgment in Carphone Warehouse Ltd v Martin [2013] EqLR 481 that was not necessarily so in relation to a ‘provision’ or a ‘criterion’ but in any event the statement by the Employment Tribunal that a ‘one off failure’ could not amount to a PCP was an alternative comment and not a conclusive decision.
An Employment Tribunal only need address the case placed before it. If matters raised in pleadings are not subsequently supported by evidence, the Employment Tribunal is not under any duty to pursue the points raised in the pleadings and cannot be criticised for not having done so.

Hand QC HHJ
[2016] UKEAT 0118 – 15 – 0403
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560989

EAT (Unfair Dismissal: Automatically Unfair Reasons) The Appellant claimed that she had been dismissed for ‘whistleblowing’. She applied for interim relief under section 128 Employment Rights Act 1996. The Employment Judge rejected the application saying that although she thought the Appellant had a good arguable case she could not say that she had a pretty good chance of success.
The Appellant complained that the Employment Judge did not refer in her Reasons to one aspect of the evidence which the Appellant said made her case strong, did not resolve various issues of fact and law and did not make any determination on the merits. Given the nature of the Employment Judge’s task on an application for interim relief and the relatively limited obligation to give reasons, none of these points involved any error of law by the Employment Judge.

Shanks HHJ
[2016] UKEAT 0023 – 16 – 0403
Bailii
Employment Rights Act 1996 128
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560990

EAT PRACTICE AND PROCEDURE – Withdrawal
PRACTICE AND PROCEDURE – Review
In 2011 the Claimant withdrew his claim before the Employment Tribunal. As was required by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, within the time limit for doing so the Respondents applied for the claim to be dismissed. After a further request the Employment Tribunal dismissed the claim on 13 October 2014. 111 days after the claim was dismissed the Claimant applied for a revocation of the dismissal of his claim, without an application for an extension of time and without the Claimant (in breach of Rule 71 2013 ET Rules) or the Employment Tribunal (in breach of Rule 72(1)) notifying the Second Respondent of the application. In breach of Rule 72(2) the Respondents were not given an opportunity to make representations in response to the application. The Employment Judge erred in law in revoking the dismissal of the claim notwithstanding that the application was out of time and that the ET Rules had not been complied with. Further the Employment Judge erred in revoking the dismissal of the claim on the basis that when she dismissed the claim she had not been notified that the Claimant had objected when she had been so informed. Appeal allowed. Revocation of the dismissal of the claim set aside. Further, the Employment Judge erred in refusing to reconsider her revocation Order.

Slade DBE J
[2016] UKEAT 0212 – 15 – 2602
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560985

EAT (Practice and Procedure: Striking-Out/Dismissal) The Employment Tribunal had not erred by striking out the majority of the fourth claim on the grounds that it repeated factual narrative set out in the existing three claims, that cause of action estoppel applied and/or that it was an abuse of process to commence claims that could and should have been brought in the first three claims (‘Res judicata: general principles’ stated by Lord Sumption at paragraphs 17 to 26 of the Judgment of the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] 1 AC 160 applied).
Consequently, the appeal was dismissed but it was emphasised that did not mean some of the factual material was irrelevant or inadmissible. In particular, some of it might be relevant to issues as to whether the allegations of disability discrimination which the Employment Judge had allowed to proceed to the Full Fearing amounted to ‘conduct extending over a period’.

Hand QC HHJ
[2016] UKEAT 0304 – 15 – 0902
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560984

EAT (Unfair Dismissal: Constructive Dismissal) CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Claimant committed gross misconduct and, following a fair investigation, was dismissed, the Employment Tribunal finding that dismissal was within the range of reasonable responses.
The Claimant brought an internal appeal and the Respondent allowed the appeal on the basis that the sanction was in the view of the appeal officer too harsh, and a sanction of demotion was substituted. After consideration the Claimant decided that he would not accept demotion, and he resigned.
He claimed in the Employment Tribunal that he had been constructively dismissed and that such dismissal was wrongful and unfair. His case was that (1) the original dismissal fell away because of the successful appeal; (2) that there was no contractual right to demote; (3) the demotion amounted to a fundamental breach of contract; (4) by resigning he accepted that breach and was constructively dismissed; and (5) that the constructive dismissal was wrongful and also unfair because the terms of the demotion were so harsh. There were interesting points raised by the appeal particularly in relation to (1) and (3), but the appeal was dismissed without further consideration of those points because, in the light of the findings relating to the original (direct) dismissal, the claim that the putative constructive dismissal was unfair was hopeless, and, given that the Employment Tribunal had found that the Claimant had indeed committed an act of gross misconduct, the Respondent was entitled to dismiss him, and he could not claim wrongful dismissal.

Shanks HHJ
[2016] UKEAT 0201 – 15 – 1102
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560986

EAT (Maternity Rights and Parental Leave) Sex discrimination
A pregnant employee refused to enter a salary sacrifice scheme operated by the Respondent under which childcare vouchers were provided because its terms required her to agree that during periods of maternity leave the entitlement to vouchers for which salary would be sacrificed would be suspended. An ET held that it was discriminatory to offer such terms, on the ground of sex (s.19 Equality Act), under s.18 Equality Act (unfavourable treatment because of asserting a right to maternity leave) and under reg. 9 Maternity Regulations 1999. It was argued on appeal that the provision of childcare vouchers under a salary sacrifice scheme was within the meaning of ‘remuneration’ in the 1999 Regulations and that the conclusion in respect of s.19 was erroneous, since jurisdiction was excluded by the provisions of the Act as to the operation of equality clauses in terms and conditions. The ET had based its decision on Guidance which was erroneous; properly analysed, a salary sacrifice scheme was a diversion of salary from the pay-packet to the voucher provider, and the it had misunderstood the essential nature of the scheme. Moreover, it had not been the intention of Parliament to require employers to continue providing vouchers at a time when there was no salary which could be sacrificed in respect of them (the employees of the Respondent were entitled to statutory maternity pay only, which could not be diverted for that purpose). The appeal was allowed.

Langstaff J
[2016] UKEAT 0249 – 15 – 0903
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560991

(Disability Discrimination: Disability) The Claimant was employed as a picker in a distribution centre. It was his job to select cases and to lift and move cases by hand for loading onto pallet trucks. Following a car accident he developed a back condition: it was common ground that the back condition was a long-term physical impairment. There was occupational health evidence that this back condition impaired his performance in that he was unable to meet the ‘pick rate’ – a target picking speed laid down by the Respondent. The Employment Judge held that his long-term physical impairment did not have a substantial effect on his carrying out normal day-to-day activities, so that he did not have a disability for the purposes of the Equality Act 2010.

Held: appeal allowed. The Employment Judge did not give adequate reasons for his conclusions; given the occupational health evidence which the Employment Judge accepted, and applying the law relating to disability laid down in Chacon Navas v Eurest Colectividades [2006] IRLR 706, Ring v Dansk Almennyttigt Boligselskab [2013] IRLR 571 and Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522, the Claimant had a disability for the purposes of the Equality Act 2010.

David Richardson HHJ
[2016] UKEAT 0132 – 15 – 0102
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560980

EAT (Practice and Procedure: Striking-Out/Dismissal) UNLAWFUL DEDUCTION FROM WAGES
AGE DISCRIMINATION
The ET struck out the Claimant’s claims of unauthorised deductions and age discrimination after receiving written submissions from the parties. Specifically, it found the Respondent’s only contractual obligation was to provide an insured long-term disability scheme, the benefits to be provided by the insurer not the Respondent. The scheme in place operated until age 60 (the retirement age when the Claimant entered into benefit in 2003; prior to any legal protection against age discrimination). The Respondent had complied with its obligation; the cessation of benefits when the Claimant turned 60 was consistent with the rules of the insured scheme. This did not amount to direct age discrimination on the part of the Respondent; any such claim would have needed to be brought against the insurer.
On the Claimant’s appeal: held, dismissing the appeal:
It was not said the ET erred in considering this on the basis of written submissions; this was a dispute turning on the interpretation of the documentation. As the Claimant had taken no point on the Respondent’s evidence, the ET was entitled to consider there was no factual dispute.
The ET correctly concluded the Respondent’s obligation was limited to providing insurance. Even on the documentation relied on by the Claimant, the ET had not erred in construing ‘retirement’ to mean age 60. In reaching that conclusion, it did not err in failing to have regard to documentation that the Claimant had not herself put into evidence. In any event, that documentation did not make good a case of contractual variation or establish an entitlement under a new insurance scheme. The ET equally reached a correct conclusion on the direct age discrimination case, predicated on the claim that the Respondent had been directly liable to make payments of long term disability benefit (which the ET rejected). There was no additional claim under section 39(2) of the Equality Act 2010 but, even if there had been, it would have failed because the obligation was not that of the Respondent but that of the insurer (see Hall v Xerox UK Ltd UKEAT/0061/14).

Eady QC HHJ
[2016] UKEAT 0279 – 15 – 0803
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560992

EAT (Victimisation Discrimination: Dismissal) The Claimant came to work three times dressed in jeans which he knew was a breach of the employer’s dress code. On the second occasion he was sent home to change and said he would dress more appropriately thereafter. When challenged about it on the second and third occasions (and in the subsequent disciplinary and appeal hearings) the Claimant challenged the dress code and its application on various grounds including that it was applied differently in relation to women and alleged that the employer was discriminating against him on grounds of sex.
He was dismissed ostensibly for breaching the dress code and disobeying management instructions but brought proceedings alleging that he had been victimised.
The Employment Tribunal’s reasons for upholding that claim were that ‘his questioning of the application of the dress code’ was a significant contributory factor in the decision to dismiss him. Strictly, the Employment Tribunal ought to have asked itself whether the allegations of sex discrimination amounted to such a factor. The Employment Tribunal’s reasons were also not adequate to explain why they had found against the employer.
In the circumstances the appeal was allowed and the finding of victimisation remitted to the Employment Tribunal.

Shanks HHJ
[2016] UKEAT 0310 – 15 – 1502
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560982

EAT Transfer of Undertakings: Transfer – TRANSFER OF UNDERTAKINGS – Service Provision Change – Transfer of Undertaking Regulations.
Whether there was a temporary cessation of work/activities at putative transfer date that prevented a transfer of an undertaking and/or a service provision change. The Employment Tribunal held not. That together with other errors of law meant the appeal was allowed and the case remitted to the same Employment Tribunal.

Simler DBE J
[2016] UKEAT 0063 – 15 – 2901
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560977

EAT Constructive Dismissal
The Employment Tribunal had erred in its construction of the Respondent’s ‘Conduct Policy and Procedure’ (‘the policy’), which was agreed to be part of the Appellant’s contractual terms and conditions. Suspension is a serious matter (see Crawford and Anr v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 at paragraph 71) and the Employment Tribunal had erred by concluding that the suspension was lawful because the manager suspending the Appellant had power to do so without considering the argument that he might have been disqualified from doing so by his previous involvement in matters of controversy as between the Appellant and the Respondent. The Employment Tribunal also erred as a matter of construction in concluding that the word ‘should’ in paragraph 17,5 of the policy was permissive and not mandatory as to the discussion of redeployment. The appeal was allowed and the matter remitted to the same Employment Tribunal.

Hand QC HHJ
[2016] UKEAT 0127 – 15 – 0501
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560974

EAT Redundancy – The Claimant claimed a redundancy payment when her secondment to the Brompton Hospital as Assistant Director of its Clinical Trials Evaluation Unit ended. She had been appointed to that post, but the needs of the College for her to work in it had ceased or were soon likely to cease or diminish. The College wished to keep her in its employment, and hoped to secure an agreement that she would perform another job which it considered would be suitable. It did not purport to exercise any contractual power under her existing contract to require her to do so. The alternative post was due to start in mid-June, after a period when the Claimant had been on leave, but the Claimant declined to accept it: it was held not to be suitable and that it had not been unreasonably refused. She was not instructed to return to work under her existing contract, nor was formal notice given under it, and indeed there was no work for her to perform as Assistant Director of the CTEU any longer. She resigned. The Employment Tribunal was in error to analyse the question whether this was a constructive dismissal by considering the implied term of trust and confidence rather than by asking whether the Respondent proposed any longer to fulfil its obligations under the contract. Had it done the latter, it would have concluded that the Respondent was proposing a breach of contract, which the Claimant was entitled to accept as terminating her own obligations under it.
A claim that a failure to pay the Claimant a redundancy payment amounted to age discrimination was rejected by the Employment Tribunal. However, in doing so it held the burden of proof to have shifted to the Respondent, yet held the burden discharged in part by rejecting an inference of discrimination to be drawn in favour of the Claimant on the basis there was no particularly compelling reason to make it. This apparently misplaced the burden of proof, and by use of the word ‘necessary’ in respect of the inference appeared in a prior paragraph to adopt too demanding a standard of proof. The appeal was allowed.
The matter was remitted to the same Tribunal.

Langstaff J
[2016] UKEAT 0288 – 15 – 1401
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560975

EAT (Unfair Dismissal : Reasonableness of Dismissal) The ET having found the Respondent’s dismissal of the Claimant – a Consultant Psychiatrist in its employment – on three charges of gross misconduct was unfair, the Respondent appealed.
On the first charge, the ET had concluded that the Respondent had previously addressed the patients’ complaints in issue and there were no ‘exceptional circumstances’ making it reasonable to raise previously determined matters in this context.
The ET thereby failed to apply section 98(4) in a straightforward way; the band of reasonable responses did not require the importation of a higher test of ‘exceptional circumstances’. The question for the ET was simply whether it was fair to institute the second set of proceedings (per Elias LJ at paragraph 56 of Christou and Anor v London Borough of Haringey [2013] IRLR 379 CA). Having acknowledged that the doctrines of res judicata and estoppel were ‘not strictly applicable’, the ET had proceeded to assume those doctrines provided the answer in this case. It failed to allow that the process in question – the internal HR process – might be different in nature to the response to a patient complaint and failed to consider the evidence (accepted by the Claimant in evidence) that the internal HR process had never been closed but had expressly been left open and only delayed because of subsequent complaints.
On the second charge, the ET had been concerned with the Respondent’s conclusion that the Claimant had made contact with a vulnerable adult patient on Facebook. The difficulty was that the ET elided ‘contacted a patient via Facebook’ (the charge) with ‘initiating contact’. The former did not necessarily imply the latter. The more general framing of the charge – the inappropriate use of social media in relation to a patient – did not suggest that the Respondent was contending the Claimant had necessarily initiated the contact. That being so, the ET’s conclusion could not stand. Substantively, it could not sensibly be suggested that the Respondent did not have a reasonable belief in this regard, there were plainly reasonable grounds for that belief (not least as the contact was admitted by the Claimant), and the ET’s criticisms of the investigation were founded upon its erroneous interpretation of the charge and could not save the finding.
The third charge was really one of failing to obey a reasonable management instruction. The ET therefore needed to consider (1) what instruction had been given to the Claimant and (2) whether that was a reasonable instruction (which might give rise to the need to make a finding as to contractual rights of the parties).
The ET’s approach appeared to assume that the instruction could only have been given by a member of the Respondent’s ‘medical hierarchy’, specifically by the case manager under MHPS. The Reasons did not explain why the case manager might not give direction to the practitioner through others. The ET also characterised the Respondent’s direction as the expression of an opinion rather than an instruction, but there was no sensible basis for that construction.
As for the Respondent’s right to give the instruction this was not a matter that the Claimant had put in issue. The ET had, further, failed to consider the Respondent’s more general case that the Claimant had a general obligation of co-operation (an approach consistent with the language of MHPS) and had not demonstrated engagement with the circumstances, which included the apparent understanding of both the Respondent and the Claimant that this had been a reasonable requirement. The appeal would be allowed.

Eady QC HHJ
[2016] UKEAT 0075 – 15 – 0801
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560978

UNFAIR DISMISSAL – Reasonableness of dismissal
The summary of the approach to compensation at paragraph 54 of the Judgment of a division of this Tribunal presided over by Elias J in Software 2000 Ltd v Andrews [2007] ICR 825, whilst impeccable at the time, now needs to be treated with some caution, at least in so far as it includes in the sequential approach it summarises a stage referring to the repealed section 98A(2) of the Employment Rights Act 1996. Also, being an analysis of compensation consequent upon a finding of unfair dismissal it is certainly not any guide to the fairness or unfairness of dismissal in terms of section 98(4) of the Employment Rights Act. The Employment Tribunal, having directed itself in terms of paragraph 54 without any apparent recognition that some of it depended on a statutory concept no longer in force, thus erred in law and the matter would be remitted to the same Tribunal with appropriate directions.

Hand QC HHJ
[2016] UKEAT 0233 – 15 – 0801
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.560973

[1995] UKEAT 996 – 95 – 1210
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.209403

ECJ Officials – Statement of reasons – Action for annulment – Action for damages.

[2002] EUECJ T-164/00
Bailii
European

Employment

Updated: 12 January 2022; Ref: scu.178743

Mr Baker had worked on Mr Gill’s farm for many years, working for a small wage, some milk and a cottage. Mr Gill sold the farm, and the buyer made an oral offer to the appellant work with increased pay, but of a slightly different nature. On the sale, Mr Gill terminted the employment. Mr Baker sought a redundancy payment.
Held: The appellant challenged a finding that he had not been entitled to a redundancy payment. Lord Parker CJ said: ‘It is not a question whether the offer was made in writing before he started work for his new employer, but whether, to use the words of sub-section (2)(b), it was made before the end of his employment under the previous contract. Here his employment ended on the 26th April and this notice was not served until the 27th. Accordingly as it seems to me there has not been here a strict compliance with the provisions of sub-section (2) of section 3; accordingly it follows that the applicant [appellant] was dismissed by reason of redundancy and is entitled to a redundancy payment. I

Lord Parker CJ, Diplock LJ, Ashworth J
[1970] EWHC QB 1, (1970) 10 KIR 61, [1971] ITR 61
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.263362

Appeal by employers against a decision awarding the respondent, a redundancy payment. The question was whether, as the Tribunal found, the dismissal was by reason of redundancy. The appellants deal in chemists sundries and veterinary supplies, and the respondent had been employed by them for some 20 years, originally as a driver warehouseman, and ultimately as the manager of their warehouse.

Parker LCJ, Diplock LJ, Asworth J
[1966] ITR 391, [1967] EWHC QB 2
Bailii
Redundancy Payments Act 1965 1(2)
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.263361

The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his role to be so. He brought to the executive and managerial level the habits of the trading floor, issuing staccato instructions, raising his voice, employing strong, foul language and swear words and expressions containing expletives. The claimant had drug and alcohol dependencies. Such criticisms as the employer had in connection with the claimant’s conduct were not properly raised and handled. The frequency of use of foul and abusive language did not sanitise its effect. The claimant was wrongfully dismissed.

The Honourable Mr Justice Newman
[2003] EWHC 1918 (QB), [2004] ICR 697, [2003] IRLR 756
Bailii
England and Wales
Citing:
Cited – Cantor Fitzgerald International v Bird and others 2002
An employer may engage in conduct which is ‘out of order’ without repudiating the contract, but repeated behaviour of that kind may be a different matter. The use of abusive language by an employer can undermine the relationship of trust and . .
Cited – Palmanor Ltd v Cedron 1978
The use of foul language by an employer can undermine a contract of employment and be a foundation for a claim for constructive dismissal. . .
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Woods v W M Car Services (Peterborough) Ltd EAT 1981
An employer will be guilty of a breach which entitles an employee to resign and claim constructive dismissal if the employer behaves in such a way as to destroy the relationship of trust and confidence. An employer shall not ‘without reasonable and . .
Cited – Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd 1991
A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s . .
Cited – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .

Cited by:
Appeal from – Cantor Fitzgerald International v Horkulak CA 14-Oct-2004
The employee claimed under a bonus clause which ‘contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.’
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 January 2022; Ref: scu.185059

All grounds of appeal would be dismissed. The Tribunal had correctly analysed the contractual obligations between the parties, consistent with the principles set out in Autoclenz Ltd v Belcher and others [2011] ICR 1157, SC and in Uber B.V. and others v Aslam and others [2021] UKSC 5 (albeit that the latter had not been decided at the time of the preliminary hearing). It had made no error of law in concluding that the terms of the written franchise agreement between each Appellant and the Respondent reflected the true agreement between the parties and that, properly construed, that agreement did not require either Appellant personally to perform the services for which it provided. Its having been common ground that personal performance was required in order to establish both employee and worker status, the Tribunal had been right to conclude that (1) the First Appellant had been neither an employee nor a worker for the purposes of the Employment Rights Act 1996 (‘the ERA’) and (2) the Second Appellant had been neither an employee nor a worker for the purposes of the ERA, or the Equality Act 2010.

The Honourable Mrs Justice Ellenbogen DBE
[2021] UKEAT 2019-000259
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.670767

His Honour Judge Colin Smith QC
Mr D J Hodgkinscb,
Miss a Maddocks Obe
[1997] UKEAT 1246 – 95 – 0602
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.207268

[1999] UKEAT 1346 – 98 – 2303
Bailii
England and Wales

Employment

Updated: 12 January 2022; Ref: scu.204930

Judgment – Civil service – Recruitment – Temporary staff – Dismissal at the end of the probationary period – Action for annulment directed against both the decision to dismiss and the decision confirming dismissal – Admissibility – Article 14 (3) of the Conditions of Employment – Misuse of powers and procedure – Manifest error of assessment – Rights of the defense – Consultation of the Joint Evaluation Committee – Opinion based on examination of written documents without hearing of the applicant – No infringement of the rights of the defence

ECLI:EU:F:2016:22, [2016] EUECJ F-83/15
Bailii
European

Employment

Updated: 10 January 2022; Ref: scu.560503

[1995] UKEAT 810 – 94 – 1210
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.209321

[1997] UKEAT 1267 – 97 – 0912
Bailii
England and Wales
Cited by:
See Also – Varndell v Wimbledon and District YMCA EAT 21-Apr-1999
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 January 2022; Ref: scu.208066

Lindblom LJ, Sir Timothy Lloyd, Sir Colin Rymer
[2016] EWCA Civ 87, [2016] WLR(D) 76
Bailii, WLRD
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.559985

EAT Unfair Dismissal : Reasonableness of Dismissal – REDUNDANCY – Fairness
Employment Tribunal’s approach to Respondent’s identification of the pool for selection for redundancy.
Held: (applying Taymech Ltd v Ryan EAT/0663/94 and Capita Hartshead Ltd v Byard UKEAT/0445/11): the Employment Tribunal had erred in law in substituting its view for that of the employer in this case. Notwithstanding that error, however, the Tribunal had gone on to make further findings as to the selection process, which supported its conclusions that (1) the dismissal was unfair and (2) for the purpose of the complaints of race discrimination, the burden of proof had shifted and the Respondent had not discharged that burden. Those further findings stood notwithstanding the EAT’s conclusion on the redundancy pool issue. The appeal was accordingly dismissed.

Eady QC HHJ
[2013] UKEAT 0042 – 13 – 0303
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.559949

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – Unfair dismissal. The Claimant was dismissed because he had been convicted of criminal offences which were held to be not befitting of office held by him, that of retained fireman, with rank of watch commander. The Respondent would have issued a final written warning rather than dismissing, in light of all the circumstances, had it not been for a final written warning which the Respondent had given the Claimant for other misconduct, after the criminal acts had taken place, but before the conviction and before the disciplinary procedure relating to the criminal conduct. The Claimant argued that the final written warning should be ignored as it did not exist when the criminal acts took place. The Respondent argued that it required considering all that appeared on the record.
Held: the Respondent was entitled to have regard to the final written warning. Appeal dismissed.

Lady Stacey
[2013] UKEAT 0029 – 13 – 1211
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.559950

Jurisdictional Points : Working Outside The Jurisdiction – Identity of employer: the claimant had a contract dated 1998 with a company, said no longer to exist. The respondents admitted that he was employed but there was a dispute by whom. The ET found that he was employed by the fourth respondent. It was argued by the respondent that there was an error of law in that decision. Held that the ET had erred in law in that it had applied the wrong test.
Territorial reach of Employment Rights Act 1996 (ERA) and Equality Act 2010. The ET found that the territorial reach of ERA and Equality Act 2010 did not include the claimant’s situation. It was argued by the appellant that the ET had jurisdiction and should hear his claims.
Held: not all relevant regulations had been put before the ET or the EAT.
Case continued for further submissions from parties.

Lady Stacey
[2013] UKEAT 0019 – 13 – 2111
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.559951

[1995] UKEAT 277 – 95 – 0512
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.209561

EAT UNFAIR DISMISSAL: S.98A(2) ERA
Expressing an opinion about an employer’s proposal, after consultation, to change an enhanced redundancy scheme which is discretionary does not amount, in this case, to a qualifying or protected disclosure.

Wilkie J
[2010] UKEAT 0442 – 09 – 1504
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.408520

The appellant was a political activist in the ‘Workers of England Union’ and a nurse employed by the respondent. He alleged race discrimination, and detriment for his membership of what he said was an independent trade union, saying that the employer had not protected him against allegations made by co-workers that the WEU was racist. Some complaints were found to be proved, but on appeal the EAT said they had no jurisdiction to hear an appeal under section 146.

Laws, Floyd, Bean LJJ
[2016] EWCA Civ 45, [2016] IRLR 295
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 5 146
England and Wales
Citing:
See Also – North Essex Partnership NHS Foundation Trust v Bone EAT 30-Sep-2013
EAT Does the certificate of independent of the trade union given on 27 June 2013, for which the EAT had by statute to stay the instant appeal, provide protection to the Claimant for his activities and membership . .
See Also – Bone v North Essex Partnership NHS Foundation Trust CA 15-May-2014
The claimant said that he was the representative of members of the Workers of England Trade Union at the respondent hospital. He claimed detriment, but the empoyer denied that it was an independent union allowing him protection under the Act. Since . .
Appeal from – North Essex Partnership NHS Foundation Trust v Bone EAT 10-Jul-2014
EAT Trade Union Rights : Action Short of Dismissal – PRACTICE AND PROCEDURE – Costs
The claimant, a member of WEU an independent trade union, made 21 claims of detriment for taking part in its activities, . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 January 2022; Ref: scu.559418

EAT PRACTICE AND PROCEDURE
JURISDICTIONAL POINTS
A Claimant brought proceedings against a parent company, and properly completed early conciliation procedures in respect of the matter between them. Once proceedings had been issued, the parent company argued that the proper Respondents were four subsidiaries of it. The Claimant successfully applied to amend to substitute those subsidiaries for the parent company. The subsidiaries argued that the Claimant should have first obtained an Early Conciliation Certificate in respect of each of them as a necessary pre-condition of making a claim against them.
Since a reference to ACAS in respect of possible early conciliation was required only before relevant proceedings were instituted, and in respect of a prospective Claimant and a prospective Respondent, and since on the facts relevant proceedings had been instituted and the Claimant was no longer prospective, such a reference was not required. Nor was Rule 34 of the Employment Tribunal Rules, which provided a discretion to make an amendment, ultra vires the statute. Moreover, it provided a discretion as to making an amendment, to be exercised in line with the overriding objective: whereas it might well be envisaged that an employment judge might decline permission if the proposed substituted Respondent were completely independent of the existing Respondent, and there was little if any connection on the facts between them, that did not apply in the present case. Appeal dismissed.

Langstaff P J
[2016] ICR 445, [2016] UKEAT 0282 – 15 – 2701
Bailii
England and Wales
Citing:
Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 January 2022; Ref: scu.559362

EAT PRACTICE AND PROCEDURE – Amendment
TRANSFER OF UNDERTAKINGS – Transfer
TRANSFER OF UNDERTAKINGS – Consultation and other information
Application to amend existing ET proceedings to add a claim against a Second Respondent (the transferee in a TUPE transfer). Without determining the date of the transfer but assuming liability for the Claimant’s employment and any failure to inform and consult transferred to the Second Respondent, the ET nevertheless refused to allow the amendment and struck out the claims against the Second Respondent.
On the Claimant’s appeal and the Second Respondent’s cross-appeal:
Allowing the appeal:
The approach to be adopted by the ET was as laid down in Selkent Bus Co Ltd v Moore [1996] ICR 836; in particular, where the application was to add a claim out of time that would not be determinative, neither would any failure of explanation for the delay. The paramount consideration was the relative injustice and hardship in refusing or granting an amendment.
The ET’s focus had been on what it (permissibly) found to be an absence of explanation by the Claimant. When considering relative injustice and hardship, it permitted the prejudice to the Second Respondent (limited to the inability to take a time-limit point) to outweigh that to the Claimant (denied any right to bring a claim against the transferee in a TUPE transfer). In so doing, it made the time-limit determinative of the application; that was an error of approach and the appeal would be allowed.
Allowing the cross-appeal in part:
The Second Respondent’s procedural arguments relating to early conciliation (raised for the first time by way of cross-appeal) were rejected. To the extent that there was any error in the identification of the prospective Respondent in either early conciliation certificate and/or difference between the details in that certificate and those on the ET1: (i) the ET had been entitled (applying Rule 12(2A) ET Rules 2013) to accept the EC certificate; (ii) in any event, any decision not to reject the ET1 had been taken at an earlier stage and was not the decision under appeal and so could not be cross-appealed at this stage (applying Basildon and Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN); (iii) as for the application to join the Second Respondent, this fell to be considered as a possible amendment to an existing claim and, as such (by analogy with Science Warehouse Ltd v Mills UKEAT/0224/15/DA), did not require a further early conciliation notification (an approach that was consistent with the language of Rule 34 ET Rules 2013 and the overriding objective).
The second and third grounds of cross-appeal would, however, be allowed. The ET had wrongly assumed (without determining the point; which would have required it to first determine the date of transfer) that liability for the Claimant’s employment transferred to the Second Respondent without engaging with the question of whether she had been (relevantly) employed immediately before the transfer for the purposes of Regulation 4(3) TUPE. It had also proceeded on the basis that the entire liability for any failure to consult (under Regulations 13 and 14 TUPE) transferred to the Second Respondent, thus failing to take into account the joint and several liability of transferor and transferee for the purposes of the Regulation 15 claim. These being matters that went to the exercise of the ET’s discretion on the question of allowing the application to amend, further representations would be permitted from the parties in writing on the question of disposal.

Eady QC HHJ
[2016] UKEAT 0170 – 15 – 2201, [2016] ICR 543
Bailii
England and Wales
Citing:
Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 January 2022; Ref: scu.559167

EAT PRACTICE AND PROCEDURE – New evidence on appeal
Tribunal holds that Appellant failed to lodge written grievance with employer and that it accordingly had no jurisdiction by reason of s32 of the Employment Act 2002 – Appellant seeks to adduce evidence of colleague not called at hearing proving receipt of grievance.
Held – Appellant had not demonstrated that with reasonable diligence he could not have called the witness first time round – Ladd v Marshall applied.
Guidance offered that in almost all circumstances parties seeking to rely on fresh evidence should seek to proceed in the Employment Tribunal by way of review rather than by way of appeal; and that appeals to the EAT based on fresh evidence would normally be stayed pending a review application (even if not dismissed for lack of jurisdiction).

[2010] UKEAT 1570 – 09 – 2104
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.416800

EAT UNFAIR DISMISSAL – Constructive Dismissal
UNFAIR DISMISSAL – Polkey Deduction
STATUTORY GRIEVANCE PROCEDURE – Impact on Compensation
Claimant employed as Practice Manager of a partnership of GPs – Appellants seek to transfer his responsibilities for staff management to his deputy – He resigns – Tribunal holds that Appellants committed a repudiatory breach of contract and that Claimant was constructively dismissed and that the dismissal was unfair – Compensation, to the statutory maximum, assessed on the basis that the Claimant would have remained in employment for a further five years to age 65.
Held:
(1) Tribunal entitled to find that Appellants’ conduct constituted a repudiatory breach of contract and that the dismissal was unfair – Consideration of approach to constructive dismissal cases in the light of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121
(2) Tribunal not obliged, on the facts, to make a ‘Polkey deduction’ to reflect risk of termination of the contract (without unfair dismissal) prior to Claimant’s 65th birthday
(3) Tribunal had failed to reduce the award as required by s. 31(2)(c) of the Employment Act 2002 – 10% reduction made to total of compensatory and basic awards

Underhill J P
[2010] UKEAT 0174 – 09 – 2104
Bailii
Employment Act 2002 31(2)(c)
England and Wales
Citing:
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 January 2022; Ref: scu.410574

Application for permission to appeal against an order dismissing her appeal against a decision of Employment Judge in turn dismissing her appeal against dismissal of her claim for unfair dismissal having she said made a protected disclosure.
Held: Refused: ‘her attempts to appeal the judgment of Her Honour Judge Eady in my view are simply attempts to appeal findings made against her on the basis that they are adverse to her. They are not errors of law.’

Hallett LJ
[2015] EWCA Civ 825
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.558712

Application for leave to appeal against rejection of claim for unfair constructive dismissal.

Jackson LJ
[2015] EWCA Civ 812
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.558715

Renewed application for permission to appeal from rejection of cliams for unfair dismissal and unlawful deduction of wages.

Aikens LJ
[2015] EWCA Civ 810
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.558711

Renewed application for permission to appeal against a decision of the Employment Appeal Tribunal itself dismissing Dr Devai’s appeal from a decision of an Employment Tribunal rejecting Dr Devai’s claim for unfair dismissal.

Bean LJ
[2015] EWCA Civ 807
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.558707

[2007] UKEAT 0450 – 06 – 0901
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.247778

[2004] UKEAT 0078 – 04 – 2610
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.219239

Officials – Rejection of candidatures for promotion – Flexible working hours – Applications for annulment and compensation.

T-280/94, [1996] EUECJ T-280/94
Bailii
European

Employment

Updated: 09 January 2022; Ref: scu.172905

ET refused postponement of a large scale hearing after counsel for one of the parties was incapacitated for medical reasons.
Held, allowing the appeal, that the ET had erred in treating the position as if there was no medical evidence in circumstances where there was an unequivocal summary of the position from an officer of the court which was agreed by both sides, and an undertaking to provide the medical evidence in short order.

The Honourable Mr Justice Choudhury (President)
[2021] UKEAT 2020-000261
Bailii
England and Wales

Employment

Updated: 09 January 2022; Ref: scu.670760

[1220] EngR 625, (1220-1623) Jenk 234, (1220) 145 ER 163 (C)
Commonlii
England and Wales

Employment

Updated: 08 January 2022; Ref: scu.461537

EAT Time Limits – Just and equitable extension
Practice and Procedure
Two appeals.
In (1) Dr Mehta appealed against the Tribunal”s conclusion that it was not just and equitable to extend the time limit for his discrimination claims. Held that time ran from the date determined by the Tribunal; the Tribunal had considered his explanations for delay including his health and alleged insufficient information and had taken into account all relevant factors. The Tribunal had reached decisions which were open to them.
In (2) Dr Mehta objected to the introduction of a new lay member at a costs hearing at which the Respondents were awarded costs of that and an earlier hearing. It held that the introduction of the new member created no risk of injustice; and there was no evidence that the new member had not been correctly appointed.

Burke QC HHJ
[2006] UKEAT 0118 – 06 – 2106, UKEAT/0118/06 and UKEAT/0119/06
Bailii, EAT
England and Wales

Employment

Updated: 08 January 2022; Ref: scu.244645

EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke – Following firm prompting to conciliation, consent to allow appeal and to remit 2 questions to ET, expressly in the context of a set of undertakings for the future ongoing employment and resolution of all claims.

McMullen QC J
[2005] UKEAT 0697 – 04 – 1401, UKEAT/0697/04
Bailii, EAT
England and Wales

Employment

Updated: 08 January 2022; Ref: scu.223085

‘To the question ‘was there a normal retiring age for an employee holding the position held by Mr Wall immediately before his dismissal?’ the answer, in our view, is ‘yes, the only employee holding that position was Mr Wall himself, and it was 70′.’ Of Nagesan: ‘We accept that the Court of Appeal’s decision proceeded on the basis that Mrs Nagesan was in a unique position, in respect of which no comparators were available, for the purpose of identifying a normal retiring age. But she did not have a contract which provided for a specific retiring age, and so the court did not have to decide, nor did it decide, the point arising in the present case: namely, is the ‘normal retiring age’ of an employee who has a unique position capable of being the retiring age provided for in his contract of employment.’

Rimer J
[2003] EAT 169 – 02 – 0702
Bailii
Citing:
Appealed to – Wall v The British Compressed Air Society CA 10-Dec-2003
The applicant was employed as director-general, with his contract stating that his retirement age would be 70. Nobody else had a similar occupation within the organisation, and he said this therefore constituted his ‘normal age’ for retirement, . .
Cited – Patel v Nagesan CA 1995
Mrs Nagesan’s contract specified no retirement age. She was dismissed on attaining 60. The employers disputed the tribunal’s jurisdiction, saying they had written to all employees, including Mrs Nagesan, purporting to introduce a new retiring age of . .

Cited by:
Appeal from – Wall v The British Compressed Air Society CA 10-Dec-2003
The applicant was employed as director-general, with his contract stating that his retirement age would be 70. Nobody else had a similar occupation within the organisation, and he said this therefore constituted his ‘normal age’ for retirement, . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 January 2022; Ref: scu.189276

Mr Justice Freedman
[2020] EWHC 2438 (QB)
Bailii
England and Wales

Employment

Updated: 08 January 2022; Ref: scu.653956

ECJ (Judgment) Reference for a preliminary ruling – Recognition of professional qualifications – Directive 2005/36/EC – Article 5 – Freedom to provide services – Directive 2006/123/EC – Articles 16 and 17(6) – Article 56 TFEU – Tax consultancy company established in a Member State and providing services in another Member State – Legislation of a Member State requiring the registration and recognition of tax consultancy companies

C-342/14, [2015] EUECJ C-342/14, ECLI:EU:C:2015:827
Bailii
Directive 2005/36/EC 5, Directive 2006/123/EC 16 17, TFEU 56
European

Employment

Updated: 08 January 2022; Ref: scu.557046

ECJ (Judgment) Reference for a preliminary ruling – Article 56 TFEU – Freedom to provide services – Principles of equality and of non-discrimination – Obligation of transparency – Scope of that obligation – National collective agreements – Social protection scheme supplemental to the general scheme – Appointment by the social partners of an insurer responsible for managing that scheme – Extension of that scheme by ministerial order to all employees and employers of the sector concerned – Limitation of the temporal effects of a preliminary ruling of the Court of Justice

C-25/14, [2015] EUECJ C-25/14
Bailii
TFEU 56
European

Employment

Updated: 08 January 2022; Ref: scu.557041

PART TIME WORKERS
An EJ decided that part-time judges of the Residential Property Tribunal had been treated less favourably that their full time comparators (full-time salaried judges of the First-Tier Tribunal (Tax Chamber) in respect of payment for writing-up decisions in Leasehold Valuation Tribunal cases. He thought they should be paid two-thirds of a daily fee for each day spent sitting in a substantive case. The MoJ appealed against the finding of less favourable treatment, and against the quantification of the sum needed to put right any discrimination, drawing particular attention to the paucity of the evidence. Both Grounds were dismissed, as was a third which argued that the Judge should have changed his determination on reconsideration. However, a cross-appeal by Mr Engel against the reconsideration decision was allowed as to three of the four Grounds argued – the Judge refused to reconsider or ‘clarify’ points on the basis that in each case the matter complained of had not been the subject of argument before him, when it was agreed between the parties on appeal that it had. Mr Engel complained that the Judge lacked impartiality, in particular because he had earlier expressed the view that he, Mr Engel, was ‘milking the system’, and had refused an application for recusal. Although in this latter case the Judge had rejected the application on an inadequate basis, and despite the matters raised by Mr Engel, the matters yet to be determined would nonetheless be remitted to the same Judge for determination: in the circumstances, he could be expected to deal with them fairly despite what had occurred.

Langstaff P J
[2015] UKEAT 0211 – 15 – 2711
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.556434

EAT One finding in the EAT Judgment revoked. Issue remitted to a fresh Employment Tribunal.

Peter Clark HHJ
[2015] UKEAT 0536 – 13 – 1310
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.556433

EAT JURISDICTIONAL POINTS – Extension of time: just and equitable
Proper approach to just and equitable extension of time in discrimination cases. Habinteg (UKEAT/0274/14/BA, 20 February 2015) doubted.
Failure to consider balance of prejudice and merits of claim, following a full Employment Tribunal hearing, material omission in exercising discretion.
The Claimant’s appeal allowed and the case remitted to the same Employment Tribunal for reconsideration.

Peter Clark HHJ
[2015] UKEAT 0073 – 15 – 2310
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.556432

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Whether the Employment Tribunal’s reasons for dismissing a conduct unfair dismissal claim were adequate (Meek-compliant; Employment Tribunal Rules, Rule 62(5)).
Held; they were. Appeal dismissed.

Peter Clark HHJ
[2015] UKEAT 0172 – 15 – 0610
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.556431

JURISDICTIONAL POINTS – Claim in time and effective date of termination
DISABILITY DISCRIMINATION – Direct disability discrimination
PRACTICE AND PROCEDURE – Costs
Equality Act 2010 limitation. No express finding by the Employment Tribunal on a late point raised by the Respondent below. However, it is plain that there was a ‘continuing act’ which rendered all claims in time.
Permissible finding of section 13 discrimination, the point being academic since there is no challenge to a section 15 finding.
Costs application by the successful Respondent refused. Limitation point arguable and capable of affecting level of compensation.

Peter Clark HHJ
[2015] UKEAT 0160 – 15 – 0210
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.556430

Transfer of Undertakings : Transfer – PRACTICE AND PROCEDURE – Admissibility of evidence
In the context of a putative TUPE transfer which was a ‘service provision change’ the Employment Judge had to decide on the intention of the ‘client’ in relation to the condition set out in Regulation 3(3)(a)(ii).
In doing so he expressly declined to make any findings about or take into account events subsequent to the service provision change which were potentially relevant circumstances in considering what inference to draw as to the client’s intention at the time of the change. That was an error of law which may have affected the result.
Appeal allowed and the matter remitted to the Employment Judge to make appropriate findings of primary fact on subsequent events and to reconsider his conclusion on the client’s intention in the light of further submissions.

Shanks HHJ
[2015] UKEAT 0133 – 15 – 2611
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.556004

Girvan LJ
[2010] NICA 39
Bailii
Northern Ireland

Employment

Updated: 07 January 2022; Ref: scu.440587

[1995] UKEAT 775 – 94 – 1210
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.209344

[1997] UKEAT 1136 – 97 – 0312
Bailii
England and Wales

Employment

Updated: 07 January 2022; Ref: scu.208044

[1996] UKEAT 1048 – 95 – 3001
Bailii
England and Wales
Cited by:
See Also – Camden and Community Services NHS Trust v Kennedy EAT 12-Sep-1996
A solicitor’s lack of an office system for checking acknowledgements debarred him from obtaining an extension of time. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 January 2022; Ref: scu.208076

EAT Unfair Dismissal: Reasonableness of Dismissal – The Employment Judge’s reasons for finding the Claimant’s dismissal on grounds of conduct to be unfair evinced a substitutionary mindset: rather than review the Respondent’s findings and reasons, applying the test of the hypothetical reasonable employer, he started from his own strong and repeatedly expressed view on a key issue of fact. This incorrect approach affected his conclusions both as to the Respondent’s findings of fact and investigation. Appeal allowed; case remitted for re-hearing.

David Richardson HHJ
[2015] UKEAT 0124 – 14 – 1009
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554878

EAT Unfair Dismissal : Reasonableness of Dismissal – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
An employee was dismissed following a disciplinary hearing at which the dismissing officer formed a view of her misconduct which was not based on reasonable grounds after a reasonable investigation. She appealed. The officer who heard the appeal asked critical questions which the earlier officer had not, and had an assurance from technicians that he did not have, but which she permissibly regarded as conclusive. The email containing the advice was not before the Employment Tribunal.
There were a number of procedural shortcomings in the procedure adopted by the employer. Nonetheless, the Employment Tribunal found the dismissal not unfair.
On appeal, a ground that the Employment Tribunal had asked not whether the dismissal was fair but whether it would have happened anyway if the unfairness had not existed was rejected, as was an argument that the appeal procedure was necessarily unfair because of earlier failings, a ground that submitted it was perverse to accept the appeal officer’s evidence of the contents of the critical email without producing it, and grounds arguing it was wrong of the Employment Tribunal to find dismissal fair given that there had been relevant breaches of the ACAS Code and of the employer’s disciplinary policy.
Appeal dismissed.

Langstaff P J
[2015] UKEAT 0005 – 15 – 0408
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554875

EAT Jurisdictional Points: Continuity of Employment
Continuity of employment – Sections 210(5) and 218(6) Employment Rights Act 1996 (‘ERA’)
In circumstances involving a change of employer, the Employment Tribunal (‘the ET’) had been wrong to consider that the presumption of continuity of employment provided by section 210(5) ERA applied (section 218(1) ERA). That did not, however, render the decision unsafe. The ET’s conclusions were ultimately founded not upon a presumption of continuity but upon permissible findings of fact.
Furthermore, in deciding that the Respondents and the Claimant’s previous employer were ‘associated’ for the purposes of section 218(6) ERA, the ET applied the correct test, that is one of legal control.
In this case, the Respondents had chosen not to attend the ET and had given only limited disclosure as to the ultimate ownership of the previous employer. The ET had been entitled to conclude that the Respondents were better placed that the Claimant to discover the true position (not least as this was consistent with the Respondents’ own position in disclosure). There was no clearly transparent evidence as to where ultimate legal control vested. In these circumstances, the ET was entitled (following the approach allowed in Secretary of State for Employment v Chapman and Payne [1989] ICR 771 CA) to have regard to the surrounding facts and to draw an inference as to the position in terms of legal control.
Appeal dismissed

Eady QC HHJ
[2015] UKEAT 0100 – 15 – 0409
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554879

EAT Practice and Procedure : Amendment
1 The Employment Tribunal (ET) struck out a claim under the Equality Act 2010 section 15 as having no reasonable prospects of success. It found that there were no pleadings from which it could be found that the unfavourable act complained of, namely dismissal, amounted to the respondent treating the claimant unfavourably because of something arising in consequence of the claimant’s disability. The claimant argued that the ET erred in law in doing so.
Held: the ET was entitled to reach the view that there were no relevant pleadings to instruct a case under section 15 Equality Act 2010. Appeal dismissed so far as relating to that decision. 2 The ET made an order for payment by claimant to respondent of expenses in the sum of andpound;1247 on the grounds that the claimant or her representative had acted unreasonably in the conduct of the proceedings. The claimant argued that there had been no unreasonable conduct. Counsel had been ready to argue in response to the motion for strike out, but the ET had decided to adjourn. Even if the arguments which counsel wished to advance were eventually not upheld by the ET, it was not unreasonable to make the arguments.
Held: there was no sufficient finding of unreasonable conduct. Appeal allowed in so far as it related to expenses.

Stacey Lady
[2015] UKEAT 0009 – 15 – 2910
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554880

EAT Practice and Procedure : Perversity – RACE DISCRIMINATION
RACE DISCRIMINATION – Detriment
Although the Tribunal’s findings of fact were supported by reasoning that was brief, the Appellant was unable to surmount the high hurdle of establishing that one of its key findings was perverse, i.e. such that no reasonable Tribunal could make that finding on the evidence; nor was the Appellant able to show that the Tribunal had erred in law by making a finding that contradicted all the evidence relevant to that issue.
While the explanation for the Tribunal’s key finding (that the Respondent’s employee had not spread rumours among the workforce that the Appellant would use his race to secure the departure of another employee) could have been fuller, the reasoning was adequate to support the finding, which had been open to the Tribunal on the evidence.
The appeal therefore failed.

Kerr J
[2015] UKEAT 0425 – 14 – 1111
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554887

EAT Practice and Procedure – Bias, Misconduct and Procedural Irregularity
A Cambodian whose first language was Khmer, who claimed that his dismissal from employment in Birmingham was unfair and racially discriminatory, asked in advance of a preliminary hearing due to consider whether his claims should be struck out to be given the services of an interpreter. No interpreter could be found. At the start of the hearing the Judge repeated this, and asked if the Claimant was happy to proceed. He indicated that he was. The ET heard the Claimant give evidence about the nature of his claim, on which he was cross-examined by counsel, before concluding in the light of that and the documents available to it that the claims had no reasonable prospect of success and should be struck out for that reason. On appeal it was argued that fairness (underscored by the overriding objective, Article 6 of the ECHR, natural justice and developed common law principles of fairness) required there to be a reasonable opportunity for the Claimant to advance his case and engage with the case against him, and that without having a Khmer interpreter this was denied him. It was held that in circumstances where he had a demonstrated facility with written language, had contact with no Khmer speaker since 2004, had worked with co-employees with whom he conversed in English, and had had to satisfy his employer when first engaged to work with children in a residential home that he had sufficient command of English to do so, it was not unfair of the Judge at the start of the hearing to refer to the absence of an interpreter and ask whether he was happy to proceed, as it was found he did. The Claimant said he was. In the particular circumstances of this case there had been no material unfairness nor procedural irregularity. The nature of the case was such that the judge was entitled to see it as one of those exceptional cases in which it was appropriate to strike out the claims before all the available evidence (such as it was) had fully been heard. Appeal dismissed.

Langstaff P J
[2015] UKEAT 0446 – 14 – 1611
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554885

EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, the Claimant applied to amend to add a new claim (victimisation), which post-dated the ET1. The Respondent objected solely on the basis that the Claimant had not undergone the ACAS early conciliation (‘EC’) process in respect of this new cause of action. The ET did not consider that determinative and allowed the amendment. The Respondent appealed.
Held:
Dismissing the appeal. Section 18A Employment Tribunals Act 1996 did not require that the EC process was undertaken in respect of each claim but used the broader terminology of ‘matter’. It also envisaged that the requirement to notify ACAS was one that fell on a ‘prospective’ – rather than an existing – Claimant. Where, as here, the Claimant had previously lodged a valid ET claim (including her EC reference) and was applying to amend to add a new, but related, claim, this was a matter for the ET’s general case management powers under Rule 29 of the ET Rules 2013. The fact that the new claim could not have been the subject of the earlier EC process was not determinative of the application. Here the ET had properly had regard to the factors relevant to the exercise of its discretion and no error of law was disclosed.
The claimant had lodged a claim at the tribunal, but later sought to amend it to add a new claim. The employer resisted saying that the claimant had not taken the subject matter of the new claim to early reconciliation. The Tribunal permitted the amendment relevantly holding: ‘ . . whilst it is usually necessary for an early conciliation certificate and number to be obtained prior to commencing proceedings in the Employment Tribunal, it is not a prerequisite of an amendment application.’
Held: Section 18A: ‘ . . uses the broad terminology of ‘matter’ rather than ’cause of action’ or ‘claim’. It envisages a prospective Claimant and imposes certain obligations in terms of the early conciliation process upon that person, in respect of which there are only limited exceptions (see Cullen) [Cranwell v Cullen UKEATPAS/006/14] (20th March 2015)’
The early conciliation rules did not require the formal setting out of each cause of action, for each claim separately: its adoption of the expression ‘any matter’ and ‘that matter’ was of concepts which were broad, and: ‘Furthermore, Section 18A does not purport to address the case of an existing Claimant, merely that of the prospective Claimant. For those who are existing Claimants who seek to add additional claims to existing proceedings, this will be a matter for the ET, exercising its case management powers . . and applying the well known guidance laid down in cases such as Selkent v Moore [1996] ICR 836.
Does this approach undermine the objective of the EC procedure, as the advocate [for the Appellant] suggests? Would it permit (using his example) an accrual of new claims simply by way of amendment of existing proceedings and thus avoiding early conciliation? [His] fears in this regard fail to take account of the fact that such amendments would only be permissible if allowed by the ET properly exercising its judicial discretion. An ET is not bound to permit such an application. The fact that it concerns a matter that is entirely new, having arisen only after the ET1 was lodged, may well be a relevant factor weighing against allowing an amendment. If such an application to amend were not permitted, it may be that the Claimant becomes a prospective Claimant in respect of that matter, and there may then be an obligation to invoke the EC procedure unless one of the Section 18A(7) exceptions apply. If the amendment is permitted, however, I cannot see that the EC process arises. It is simply a matter of case management.
It seems to me that the most the Respondent can really say is that an ET considering whether or not to allow an amendment might consider the potential avoidance of EC to be a relevant factor. I do not see, however, that it can be determinative. The rationale of the EC scheme is to encourage the settlement of employment disputes before litigation has commenced and positions become entrenched. Apart from the initial obligation to contact ACAS, however, the process is entirely voluntary. If the Claimant has no interest in participating in a conciliation process, she is not obliged to do so; the same is true of the Respondent. EC builds into the ET process a structured opportunity for parties to take advantage of ACAS conciliation; albeit an opportunity that has to be formally acknowledged by the initial contact to be made with ACAS and the issuing of an EC certificate’.

Eady QC HHJ
[2015] UKEAT 0224 – 15 – 0910, [2016] IRLR 96, [2016] ICR 252
Bailii
Employment Tribunals Act 1996 18A
England and Wales
Citing:
Cited – Selkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .
Cited – British Newspaper Printing Corporation v Kelly CA 1989
A group of employees had brought proceedings which appeared (though there was some ambiguity) to be intended as claims for redundancy payments. More than three months after the effective date of termination they sought to amend to plead alternative . .
Cited – York City and District Travel Ltd v Smith EAT 1990
In March 1988 the employers, the bus company, York City and District Travel Limited negotiated an agreement with the trade union varying their employees contracts of employment so as to provide that the employers were entitled to deduct any cash . .
Cited – Hyde v Lehman Brothers Ltd EAT 4-Aug-2004
. .
Cited – Okugade v Shaw Trust EAT 11-Aug-2005
Practice and Procedure: Amendment
In determining the Applicant’s application to amend his originating application so as to include allegations of post employment victimisation. Is it fatal in such an application that the instances of . .

Cited by:
Cited – Mist v Derby Community Health Services NHS Trust (Practice and Procedure: Amendment) EAT 22-Jan-2016
EAT PRACTICE AND PROCEDURE – Amendment
TRANSFER OF UNDERTAKINGS – Transfer
TRANSFER OF UNDERTAKINGS – Consultation and other information
Application to amend existing ET proceedings to add a . .
Cited – Drake International Systems Ltd and Others v Blue Arrow Ltd (Practice and Procedure) EAT 27-Jan-2016
EAT PRACTICE AND PROCEDURE
JURISDICTIONAL POINTS
A Claimant brought proceedings against a parent company, and properly completed early conciliation procedures in respect of the matter between them. . .
Cited – Compass Group UK and Ireland Ltd v Morgan EAT 26-Jul-2016
Satisfaction of Early Conciliation requirements
EAT Practice and Procedure: Preliminary Issues – This appeal raises a question of procedure in relation to the early conciliation provisions introduced by the Enterprise and Regulatory Reform Act 2013, namely . .
Cited – HM Revenue and Customs v Garau EAT 24-Mar-2017
EAT Practice and Procedure : Application/Claim – Preliminary issues
The early conciliation certificate provisions introduced from 6 April 2014 do not allow for more than one certificate of early . .
Cited – Chard v Trowbridge Office Cleaning Services Ltd EAT 4-Jul-2017
PRACTICE AND PROCEDURE – Application/claim
PRACTICE AND PROCEDURE – Preliminary issues
PRACTICE AND PROCEDURE – Time for appealing
The Employment Judge had erred in law when considering whether an error as to the correct name of . .
Cited – De Mota v ADR Network and Another EAT 13-Sep-2017
Jurisdictional Points – Early conciliation provisions
The Employment Judge erred in law in:
(1) Examining the process prior to the grant of an early conciliation certificate in order to assess whether the Claimant was barred from . .
Cited – Ministry of Defence v Dixon EAT 4-Oct-2017
EAT Unfair Dismissal : Dismissal : Ambiguous Resignation –
PRACTICE AND PROCEDURE
– Application/claim – Amendment – Appellate jurisdiction/reasons/Burns-Barke –
Unfair dismissal – dismissal – . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 January 2022; Ref: scu.554883

EAT Age Discrimination – The Respondent refused to allow the Claimant to take stock options on leaving employment because he was under 55 years of age. Age discrimination was admitted, but said to be justified.
Held: the Employment Tribunal did not carry out the necessary examination of the asserted aim, nor did it explain its finding that it was a legitimate aim. Remitted to a new Tribunal to decide.

Stacey L
[2015] UKEAT 0122 – 15 – 2411
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554884