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

EAT Practice and Procedure: Time for Appealing – Appeal from Registrar’s Order refusing extension of time for appeal.
The Appellant suffering from a disability (he is registered blind) and contending that the time for his appeal should only have run from the date he received the Braille version of the ET’s Reasons.
Allowing that reasonable adjustments should be made to ameliorate any disadvantage suffered by the Respondent as a result of his disability, his evidence was that his computer software meant he was able to ‘read’ messages and ‘Word’ attachments emailed to him and he was unable to explain why he would not have been able to read the ‘Word’ version of the ET’s Reasons apparently emailed to him on 22 July 2014. The Appellant further accepted that he was aware of the ET’s Reasons given orally at the hearing and had been able to make an application for reconsideration within time (taking time to have run from the date the Reasons were sent to the parties, 22 July 2014). Furthermore, in evidence to the ET he had conceded that his son assisted him by reading documentation to him. In those circumstances, it was not apparent that the Respondent had suffered any disadvantage upon receiving the ‘Word’ version of the ET’s Reasons on 22 July 2014 and yet he did not lodge his Notice of Appeal with the EAT until 15 January 2015.
Even if that assessment was incorrect, the Appellant received the Braille version of the ET’s Reasons on 7 November 2014 but still failed to lodge his Notice of Appeal until 15 January 2015 (outside the further 42 day period he contended he was entitled to after receiving the Braille version of the Reasons). That the Appellant then spent some time seeking advice did not provide a good explanation. He had been able to send the supporting documentation to the ET on 15 December 2014 and was unable to explain why he did not then submit his Notice of Appeal for a further month.
Applying United Arab Emirates v Abdelghafar [1995] ICR 65 EAT, the Appellant had been unable to show an explanation (let alone a good explanation) for his default and there was no basis for allowing an extension of time for the appeal in this case.

[2015] UKEAT 1178 – 14 – 0210
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554881

EAT Practice and Procedure : New Evidence On Appeal – PRACTICE AND PROCEDURE – Postponement or stay
PRACTICE AND PROCEDURE – Striking-out/dismissal
Teacher dismissed on capability grounds. Claims of unfair dismissal and disability discrimination struck out because: (1) failure to comply with case management directions; and (2) fair trial impossible.
On appeal:
(1) Fresh Evidence. Application to adduce fresh medical evidence on the appeal refused because: (a) application had been made to the Tribunal for reconsideration [to introduce it], that application had been refused and there had been no appeal; (b) the EAT Practice Direction had not been complied with; (c) the evidence could have been obtained earlier with reasonable diligence; and (d) earlier medical evidence had been impugned on the basis of its veracity and similar points might have been taken [had the opportunity been provided] on the new evidence.
(2) Postponement. The Tribunal had sufficiently dealt with an application to postpone the hearing before them. They had reviewed the long history of applications to postpone made earlier and in respect of earlier hearings. Their decision to proceed rather than postpone was not made in error of law.
(3) Striking out. The Tribunal had been entitled to find that the Claimant had failed to comply with case management orders without just cause and that her conduct of the litigation had made the fair determination of the claims impracticable.

Luba QC HHJ
[2015] UKEAT 0135 – 15 – 2508
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554874

Sharp LJ
[2015] EWCA Civ 1181
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554774

The company appealed against a decision to refuse an extension of time to bring an appeal. The letter of appeal was said to have been unstamped and not received in time. The appellant now told the court that the Royal Mail does not require postage to be affixed to a guaranteed delivery package; the relevant posting instruction was affixed to the package with its barcode, payment was received on the due date; and, accordingly, whatever thereafter happened would have been the fault of the Royal Mail, not Gala Tent Limited.
Held: the correct procedure was to apply to the judge to set aside his refusal to extend time on the basis of fresh evidence.

Ryder LJ
[2015] EWCA Civ 1063
Bailii
England and Wales

Employment

Updated: 06 January 2022; Ref: scu.554767

ECJ Judgment – Reference for a preliminary ruling – Social policy – Framework Agreement on part-time work – Organisation of working time – Directive 2003/88/EC – Right to paid annual leave – Calculation of entitlement to leave in the event of an increase in working time – Interpretation of the pro rata temporis principle

F. Biltgen (Rapporteur), P
C-219/14, [2015] EUECJ C-219/14, ECLI:EU:C:2015:745
Bailii
Directive 2003/88/EC
European

Employment

Updated: 06 January 2022; Ref: scu.554652

T-180/18, [2019] EUECJ T-180/18_CO
Bailii
European

Employment

Updated: 06 January 2022; Ref: scu.664497

Expedited trial of a claim seeking injunctive relief against the defendant relating to alleged breaches and anticipated breaches of a contract of employment and the defendant”s duties of trust and confidence in relation to confidential information and post-termination restrictions.

Hodge QC HHJ
[2015] EWHC 2631 (Ch)
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.554294

The claimants seek compensation for non-payment of substantial sums which they say were owed to them by way of annual bonuses, but which in truth would comprise a large proportion of their employment income.

Waksman QC J
[2015] EWHC 2916 (Comm)
Bailii

Employment

Updated: 05 January 2022; Ref: scu.554222

EAT Race Discrimination : Direct – RACE DISCRIMINATION – Detriment
Discrimination on grounds of race – Subjecting an employee to a detriment – Failure to investigate allegation of misconduct – Less favourable treatment on grounds of race – Allegation fabricated – Whether capable of amounting to a detriment
The Appellant company employed the First Respondent as a security guard. He was of Indian ethnic origin. An allegation was made that he smelt of alcohol at work. He was sent home and the allegation investigated. The First Respondent also made an allegation that his supervisor, who was white, had used racially abusive language towards him. That allegation was false and had been fabricated by the First Respondent. The Appellant, however, failed to investigate the complaint. The Tribunal found that there had been discrimination as the failure to investigate the First Respondent’s allegation constituted less favourable treatment on grounds of race. The Tribunal did not expressly consider the question of whether the Respondent had suffered any detriment. At a Remedies Hearing, the Tribunal found that the Respondent had not suffered any injury to feelings as a result of the failure to investigate the complaint and declined to award him any compensation. The Tribunal did, however, grant a declaration that Appellant had directly discriminated against the First Respondent by failing to investigate his allegation relating to the use of racially abusive language.
The Employment Appeal Tribunal held that a finding that there had been a breach of section 39(2)(d) of the Equality Act 2010 involved a finding that there had been both discrimination, in the sense of less favourable treatment on the grounds of a protected characteristic, and detriment to the employee concerned. On the facts as found by the Tribunal, the First Respondent could not have suffered any detriment in the present case. The complaint was entirely fabricated. He did not suffer any substantive detriment as, if the complaint had been investigated, it would have been found to be untrue. The Tribunal found that he did not have any sense of grievance or injustice arising out of the failure to investigate. In those circumstances, there was no detriment. The appeal was allowed and the declaration set aside.

Lewis J
[2015] UKEAT 0144 – 15 – 2710
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.554104

[1849] EngR 835, (1849) 4 Exch 362, (1849) 154 ER 1252
Commonlii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.299140

[1996] UKEAT 11 – 95 – 1501
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.208072

[1996] UKEAT 958 – 95 – 2501
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.208077

[1997] UKEAT 865 – 97 – 1712
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.208059

Renewed application for permission to appeal

Longmore LJ
[2015] EWCA Civ 697
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.553854

EAT Practice and Procedure: Disposal of Appeal Including Remission – The case was remitted to the same Employment Tribunal on two aspects. Both permissibly dealt with by the Employment Tribunal. No error of law shown. Appeal dismissed.

Peter Clark HHJ
[2015] UKEAT 0097 – 15 – 2310
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.553730

EAT National Security – DISABILITY DISCRIMINATION – Direct disability discrimination
DISABILITY DISCRIMINIATION – Disability related discrimination
RELIGON OR BELIEF DISCRIMINATION
The Claimant was rejected for employment as an Information Assurance and Network Defence Specialist at GCHQ, a post that required the highest level of security clearance. In a decision with Open and Closed Reasons, all claims of unlawful discrimination were rejected by the Tribunal. The Claimant appealed.
The Tribunal concluded that the Claimant was refused clearance because of security concerns that were partly related to his past disability and religious beliefs but was entitled to conclude that the disability and religious beliefs were not themselves the ground of or reason for the impugned treatment. This was a legitimate distinction in the circumstance and not in error of law or inadequately reasoned. The appeal accordingly failed.

Simler DBE J
[2015] UKEAT 0269 – 14 – 2210
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.553733

EAT Victimisation Discrimination: Protected Disclosure
One of the Claimant’s claims that he had made protected disclosures – and been subject to detriment and an automatically unfair dismissal as a result – was based on a written complaint that he and three other lorry drivers at a haulage depot had made. It was a complaint that the distribution of overtime to drivers at that depot was being dealt with unfairly and in breach of their contracts of employment (for a variety of reasons and with a range of effects).
At a Preliminary Hearing, the Regional Employment Judge struck-out that particular claim because such a complaint, concerning only a group of workers with an identical grievance about particular terms of their contracts, could not meet the ‘public interest’ test in the amended Employment Rights Act 1996 section 43B(1).
Appeal allowed. The Regional Employment Judge’s Order had been made before the judgment in Chesterton [2015] IRLR 614 EAT and was inconsistent with it. The Employment Appeal Tribunal had decided that prima facie it was at least possible for a matter to be ‘in the public interest’ even if it was concerned only with a contractual dispute between a group of employees and their employer. Although that decision was subject of an appeal to the Court of Appeal (listed for October 2016) it should meanwhile be followed and claims should meanwhile be tried to determine whether, in fact, in any particular case, the Claimant had had a reasonable belief that the matter had been raised by him ‘in the public interest’.

Rec Luba QC
[2015] UKEAT 0163 – 15 – 2708
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.553729

EAT Practice and Procedure: Postponement or Stay – The Employment Judge was required to give Reasons ‘proportionate to the significance of the issue’ which ‘for decisions other than judgments may be very short’. The Respondent applied for an adjournment making two good points: (1) the Employment Tribunal had asked for dates to avoid; they had been given; the case had been listed in accordance with them; but it had then been adjourned at the Claimant’s request to a date beyond those for which availability had been requested; (2) the key witness, the Respondent’s Chief Executive, had an important conference in Malaysia long booked for the re-listed dates. These were good points; the Employment Judge was not bound to accede to them but he was required succinctly to address them. His Reasons did not show that he had considered them at all or why he rejected them

Richardson HHJ
[2015] UKEAT 0228 – 15 – 2808
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.553727

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke
Costs
The Employment Judge did not give Meek-compliant Reasons in respect of her decision not to uplift any part of her award under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Employment Judge omitted to decide an application for costs made by the Appellant. Observations on how to address a case where there are applications for both a costs order and a preparation time order, having regard to Rule 75(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

Richardson HHJ
[2015] UKEAT 0102 – 15 – 1308
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.553728

The Honourable Mr Justice Butterfield,
,
Mr E Hammond Obe,
,
Mrs J M Matthias
[1996] UKEAT 1142 – 94 – 0205
Bailii
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.208351

EAT Practice and Procedure: Disposal of Appeal Including Remission
Disposal hearing
On the disability discrimination (reasonable adjustments) claim, although the ET had erred in the respects explained in the substantive Judgment on this appeal (handed down 22 April 2015), the findings of fact were such that only one outcome was possible; the ET’s Judgment dismissing this claim would therefore be upheld (applying Jafri v Lincoln College [2014] IRLR 544 CA).
As for the unfair dismissal claim, the parties were agreed that this matter would have to be remitted; the issue was whether it should be to the same or a different ET. Applying the guidance laid down in Sinclair Roche and Temperley v Heard and anor [2014] IRLR 763 it was clear that it was most appropriate for this matter to be remitted to the same ET to the extent that this was still practicable. Although some time would have passed before the rehearing, the ET might reasonably be expected to recall this matter and its reasoning on those aspects of its Judgment that had not been criticised on appeal. It was likely that this would mean that the remitted hearing could thus be the shorter and that would save costs. Taking into account the significance of the case – particularly for the Claimant’s side – that was a proportionate approach. There was no suggestion of bias or partiality or that the ET would not approach its task in an entirely fair-minded and professional manner. The original decision had not been wholly flawed. Justice would be best served by the remaining issue on the unfair dismissal claim being the subject of reconsideration by the same ET.

Eady QC HHJ
[2015] UKEAT 0315 – 14 – 0209
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.553151

Jurisdictional Points: Claim In Time and Effective Date of Termination

[2015] UKEAT 0311 – 14 – 3007
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552836

Practice and Procedure : Preliminary Issues – SEX DISCRIMINATION – Jurisdiction – JURISDICTIONAL POINTS – Claim in time and effective date of termination – A decision to refuse a Preliminary Hearing to determine if a Tribunal had jurisdiction over some of the matters alleged in a claim, which it was said were out of time, was attacked on the basis that the Judge had wrongly reached final and binding conclusions as to that which the pleadings alleged, and that she ought to have ordered a separate hearing in respect of various allegations. The argument was rejected, and costs awarded against the Appellant on the basis that the appeal was misconceived.

[2015] UKEAT 0181 – 15 – 3107
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552837

Transfer of Undertakings : Service Provision Change

[2015] UKEAT 0329 – 14 – 2809
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552841

EAT Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke – The Appellant complained that the Employment Tribunal had failed to identify, refer to or evaluate the evidence in relation to a particular finding of fact. It was accepted that there was evidence to support the finding and that it was not perverse. In the circumstances of the case, neither Meek nor Rule 62(4) required the evidence to be referred to and evaluated.
In any event, in fact the Employment Tribunal had explained the basis of the finding in the course of the Reasons, albeit in a somewhat obscure way.

[2015] UKEAT 0138 – 15 – 1108
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552839

EAT Practice and Procedure – Chairman alone
JURISDICTIONAL POINTS
A Judge sat alone to determine an application for costs which was related to the conduct of the losing Claimant when he brought a claim that he had been discriminated against in a number of respects by the Ministry which employed him and a number of co-employees. The claim itself had been decided by a panel of three. It was held that the Judge was not entitled to sit alone in circumstances such as those of the present case.

Langstaff P J
[2015] UKEAT 0438 – 14 – 1007
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552835

EAT Unfair Dismissal: Reasonableness of Dismissal – Contributory fault – Polkey deduction
The ET had not made an express finding as to the reason for the dismissal but the reasoning suggested that it had concluded that the Respondent had failed to satisfy it that it had a genuine belief in the conduct for which it had purported to dismiss the Claimant; the findings suggested that the ET considered that the Respondent had acted in bad faith and was determined to find that the Claimant had been guilty of gross misconduct (regardless of the evidence in his favour).
The suggestion of bad faith had not been put to the Respondent’s witnesses and that procedural error was (given the centrality of the point to the ET’s findings) rendered the decision unsafe.
Moreover, the ET’s findings – in particular, its expression of its views as to the quality and weight of the evidence – demonstrated that it had fallen into the substitution mind-set. Rather than assessing the Respondent’s conduct and decision-making against the range of reasonable responses, the ET was submitting it to the test of what it considered the reasonable employer would have done or decided; rather than a range, it was applying a single standard, as set by the ET’s own views on the evidence and the procedure to be followed.
In the circumstances, the ET’s liability Judgment could not stand.
Although unnecessary given that conclusion, the EAT would also have been minded to allow the Respondent’s appeal on the question of contributory conduct (the ET having apparently restricted its consideration of the evidence to that adduced ‘live’ before it) and on Polkey (the ET having apparently taken the view that Polkey was not engaged given its finding that the dismissal was substantively (not merely procedurally) unfair).
Appeals allowed. Matter remitted to a different ET for re-hearing.

[2015] UKEAT 0130 – 15 – 2807
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552838

EAT Harassment – VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
A complained that she had been subject to sexual harassment by B, her supervisor and of superior rank, over some 18 months. The Employment Tribunal found that was not so: the relationship had been consensual but had turned sour at the very end over two days, during which he had pestered her. On those two days, there had been harassment related to her sex. She complained about this to a senior officer on the last day (thus doing a protected act), after which B made no contact with her. The Employment Tribunal rejected her complaint of victimisation, which was that because, when the Respondent considered her complaint about B’s conduct, it did not sufficiently do so because it was a complaint of sexual harassment. An appeal against this conclusion was rejected, both on the facts and because it was difficult to contemplate how a failure to hear a complaint fully could be caused by the making of the complaint in the first place.

Langstaff P J
[2015] UKEAT 0313 – 14 – 2104
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552825

EAT Practice and Procedure: Review – Rule 40(5) of the Employment Tribunal Rules 2013 – refusal of application for re-instatement of a claim following failure to pay fee or submit fee remission application.
Held: the Employment Judge gave sufficient reasons for her decision, and her decision was not perverse or tainted by any legal error. As to quality of reasons, Neary v Governing Body of St Albans School and Thind v Salvesen Logistics considered. Applications to adduce fresh evidence and amend Notice of Appeal dismissed.

David Richardson HHJ
[2015] UKEAT 0028 – 15 – 1205
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552827

EAT Sex Discrimination: Indirect PART TIME WORKERS – PRACTICE AND PROCEDURE – Costs
Indirect Sex Discrimination – Equality Act 2010 section 19
On the indirect sex discrimination claim it was agreed that the Employment Tribunal (‘the ET’) erred in the identification of the pool for comparison. To that extent the appeal would be allowed.
Applying Home Office (UK Border Agency) v Essop [2015] EWCA Civ 609: the assessment of disadvantage required findings both as to disadvantage in the group and for the particular complainant; the ET’s findings were inadequate for that task.
Nevertheless, the ET had gone on to make a finding, in the alternative, that the PCP was justified. Following the guidance in the Supreme Court in Seldon v Clarkson Wright and Jakes [2012] IRLR 590 and Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, the balancing exercise required related to the justification of the rule, not the individual application of that rule. That being so, the ET’s conclusion stood; it had made a permissible finding on the evidence. The legitimate aim here was obvious; stating it made plain the justification: even allowing for the discriminatory impact, the ET was entitled to conclude there was nothing to be balanced against this. The obvious nature of the case meant further explanation was not required.
Part-Time Workers – Part-time Workers Regulations 2000 (‘PTWR’)
The cross-appeal related to the ET’s finding of a claim under Regulation 5 of the PTWR. Both parties agreed the ET erred in this respect: no claim under Regulation 5 was before it; it had failed to give a decision on the claim that was before it, under Regulation 7.
Rejecting the Claimant’s contention that the Regulation 5 decision could be upheld in any event; to do so would be in breach of natural justice.
As for the Regulation 7 case, one of the detriments relied on could not stand given the ET’s findings. The case would, however, need to be remitted to the same ET for consideration of the Regulation 7 claim on the second detriment.
Costs
As for the costs appeal: the ET would need to reconsider its costs decision in the light of the findings on the indirect sex discrimination case and to that extent only the costs appeal would be allowed and this matter remitted to the same ET.

Eady QC J
[2015] UKEAT 0076 – 15 – 0207
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552834

EAT Practice and Procedure: Striking-Out/Dismissal – The Employment Judge struck out what remained of the Claimant’s claim on the ground that it had no reasonable prospects of success.
Held: appeal allowed. The Employment Judge ought not to have struck out the claim when there was a crucial core of disputed fact. Anyanwu v South Bank Student Union [2001] ICR 391, Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 and Tayside Public Transport Company Limited v Reilly [2012] CSIH 46 applied.

David Richardson HHJ
[2015] UKEAT 0093 – 15 – 1307
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552833

EAT Contract of Employment: Wrongful Dismissal – An Employment Judge dismissed a claim for unfair dismissal, where the employer thought the Claimant had stolen money from it. He said that if he had had to determine contributory fault he would have found it to be 100%, since he thought on balance she had done what was alleged. He thereby found as a fact that she had stolen from her employer. Nonetheless, he thought the employer was not entitled to dismiss her summarily, and upheld her claim for damages in respect of the pay she would have received during the notice period. He wrongly looked for a term of the contract under which the employer was entitled to dismiss her, rather than applying well established principles of contract law. When the employer sought a reconsideration this was refused on the basis that the employer had in any event affirmed the contract by holding a disciplinary hearing (even though the disciplinary procedure was expressly non-contractual). In reaching his conclusion, the Judge also failed to record the terms of the disciplinary policy faithfully, and wrongly considered that it had not been put to him that by virtue of straightforward contractual principles the employer was entitled to dismiss the Claimant without notice. His decision was totally flawed, and the appeal against it was upheld.

Langstaff P J
[2015] UKEAT 0049 – 15 – 1607
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552830

EAT Practice and Procedure: Perversity – UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant’s tier 1 visa, permitting employment as a banking adviser, was coming to an end. The Respondent had made plans to employ her as a financial consultant under a tier 2 visa – it withdrew from doing so at short notice and dismissed her. The Employment Judge approached the question of fairness under section 98(4) of the Employment Rights Act 1996 on the basis that ‘the stringent requirements of the FCA meant that she could not be employed’ as a financial consultant without a particular qualification known as CeFAP. Appeal allowed. As the Respondent accepted at the appeal hearing, there was no requirement of the FCA that the Claimant could not be employed as a financial consultant without the CeFAP qualification. The Employment Judge approached the question of fairness under section 98(4) on a basis for which there was no legal or factual foundation.

David Richardson HHJ
[2015] UKEAT 0090 – 15 – 2407
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552831

EAT Trade Union Rights: Dismissal – Automatic Unfair Dismissal – section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) – whether the reason or principal reason for the Claimant’s dismissal was that she had taken part or proposed to take part in the activities of an independent trade union at an appropriate time.
Dismissing the appeal:
The Employment Tribunal (‘ET’) had not erred in addressing the Respondent’s motive. The Claimant’s case before the ET had been that the Respondent had an ulterior motive in dismissing her for the reason given (her disclosure of confidential information and disregard of a direct instruction from a manager that she should not disclose and distribute that information) as it really wished to get rid of her due to other (unrelated) trade union activities. The ET found that was not the case.
In any event, and notwithstanding that focus of the Claimant’s case, the ET also considered whether the activity for which she was dismissed amounted to dismissal for a prohibited reason for section 152 TULRCA purposes. It found that the Claimant had deliberately misled the trade union branch executive committee by failing to inform it of the confidential nature of the information it then agreed she should distribute to members. In the circumstances, it concluded that the activity for which she had been dismissed fell outside the pursuit of any lawful trade union activity. That was a conclusion open to the ET on the facts and disclosed no error of law in terms of its approach.

Eady QC HHJ
[2015] UKEAT 0407 – 14 – 1903
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 152(1)
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552823

EAT Contract of Employment: Implied Term/Variation/Construction of Term – 1. The Employment Judge erred in law in concluding that there was no significant difference between the Securicor contract in the year 2000 and the PCL terms and conditions in 2010. On the true construction of the Securicor contract the employer was obliged to provide full-time work, i.e. generally 56 hours per week unless otherwise agreed.
2. The Employment Judge erred in law in failing to address in her Reasons the question whether, applying Regulation 3(1)(a) of Transfer of Undertakings (Protection of Employment) Regulations 2006, there was a transfer of an undertaking or part of an undertaking from PCL to Ward Security.

David Richardson HHJ
[2015] UKEAT 0078 – 14 – 2707
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552829

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity
The Appellants were contract workers working for the First Respondent through an agency which later became the Second Respondent. It is accepted that they were employees of the Second Respondent and that they were dismissed. They brought claims against the First Respondent relating to direct discrimination, harassment and victimisation and against the Second Respondent relating to direct race discrimination and victimisation only.
An email chain was omitted from the ET bundle. An email from Mr Green, a night shift supervisor, described the events that led to the Appellants leaving site including accusations made by one of the Appellants that Mr Green did not like black men and had no respect for black men, which was repeated later when the Appellants said they were going home. The emails before the ET did not show that this email had been forwarded to Mr Coleman, formerly a manager with the First Respondent responsible for its contract with the Second Respondent. The significance of the omission of the evidence of that email having been forwarded to him is that in his evidence he denied he knew of allegations of racism at the material time.
The Appellants’ primary case was that the ET Judge refused to accede to the request by their representative to include the combined emails in the bundle prior to the ET hearing without giving a reason for his refusal contrary to ECHR Articles 6(1) and 14.
The EAT was satisfied that no proper application was made to the ET to admit the email chain. If a proper application had been made the ET would have appreciated the significance of the omission and would have been bound to admit the evidence or provide a proper explanation for not doing so. There was no procedural impropriety on the ET’s part.

Supperstone J
[2015] UKEAT 0154 – 14 – 1903
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552824

EAT Unfair Dismissal: Compensation – Mitigation of loss
The Employment Tribunal did not err in law in its assessment of the period of the Claimant’s loss or in its approach to the issue of mitigation. Appeal dismissed, except that a substantial error of calculation was corrected.

David Richardson HHJ
[2015] UKEAT 0301 – 14 – 1004
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552826

EAT Practice and Procedure – Case management – Amendment
Appeal by the Claimant on two bases: (1) the limitation of the issues on his unfair dismissal complaint to preclude his contention that the real reason for his dismissal was not redundancy but was a reason connected with a wish to avoid paying him a bonus; and (2) the refusal of his application to amend to rely on a complaint of making a protected disclosure relating to the failure to pay him bonus or proposed relocation and his assertion that this was the real reason for his dismissal and/or selection for redundancy.
Held:
Allowing the appeal on the first basis. Recognising that the EAT should be slow to interfere with the ET’s case management role in drawing up the list of issues, the decision to exclude the Claimant’s positive case as to the reason for his dismissal or selection for redundancy was wrong and could not stand: (1) it failed to take into account that which was relevant (the lack of concession as to a fair reason for dismissal on the face of the ET1 and the Claimant’s earlier raising of the question whether the reason given/his selection for redundancy was a sham); and (2) took into account that which was irrelevant (in terms of treating Employment Judge Deol’s record of the strike out hearing as containing a list of issues when it did not).
Further, having not conceded the reason for dismissal in his ET1, the Claimant was entitled to test the Respondent’s case on this question. The Respondent was entitled to know of any positive alternative case but that would have been apparent as and when the issues were identified. The Claimant had raised the question of the redundancy being a sham in August 2012. If the list of issues had been drawn up at that stage, there was no reason to think he would not have relied on bonus avoidance as the real reason for his dismissal and there could have been no objection to him having done so. The only real objection was of delay but that was not solely the Claimant’s responsibility. He should not have been restricted in how he put his case on the reason for dismissal.
The ET’s Decision would be replaced with a direction that the Claimant was able to contend the reason for his dismissal was a reason connected with a wish to avoid paying his bonus. The appeal on the second basis was, however, dismissed.
The matters relied on in respect of the whistle blowing allegations were raised as new claims before Employment Judge Glennie and, as the Claimant accepted, that required an amendment of the ET1. That being so, the ET was bound to consider the question of the timing of the raising of these claims and the time limit in issue ran from the date of Claimant’s dismissal. The claims were out of time. There was no reason why it had not been reasonably practicable for the Claimant to have raised those claims in time (subsequent disclosure from the Respondent did not give the Claimant any new information that changed the position for him in this regard). More generally, the ET was entitled to take into account the relevant procedural history, including the Claimant’s earlier clarification that he was not raising any further claims and his failure to mention the possibility of a whistle blowing claim at any earlier stage.
Whether or not the Claimant might be able to rely on some of the matters relevant to such a claim as part of the evidential material on the unfair dismissal case in any event (although that was more doubtful in relation to the relocation disclosure/s), the question of possible prejudice went far wider than this. Further legal and evidential issues were raised by the whistle blowing claims (not least in respect of the question of the (still unparticularised) disclosures themselves). In the circumstances, the ET reached an entirely permissible conclusion, with which it was not open to the EAT to interfere.

Eady QC HHJ
[2015] UKEAT 0089 – 15 – 2907
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552832

EAT Working Time Regulations: Holiday Pay : National Minimum Pay – An on-call night worker was not entitled to the National Minimum Wage for all hours of the night shift; only those when he was working. Nor was he entitled to accrued holiday pay for earlier years when he was not prevented from but did not ask for leave.
The Claimant’s appeal is dismissed.

Peter Clark HHJ
[2015] UKEAT 0050 – 15 – 2409
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552701

EAT Jurisdictional Points: Working Outside The Jurisdiction

Peter Clark J
[2015] UKEAT 0062 – 15 – 2309
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552702

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – DISABILITY DISCRIMINATION – Disability related discrimination – CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Employment Tribunal was entitled to find that the Claimant’s dismissal, albeit procedurally unfair, was substantively fair by reason of his misconduct, notwithstanding a separate finding that his demotion constituted discrimination arising from disability contrary to section 15 of the Equality Act 2010. Further, that his wrongful dismissal claim failed by reason of his misconduct in refusing to perform any work which he was capable of doing and which fell within his contractual job description.
Appeal dismissed.

Peter Clark HHJ
[2015] UKEAT 0336 – 14 – 2409
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552700

EAT AGE DISCRIMINATION – On a Preliminary Hearing to determine whether the Employment Tribunal has jurisdiction to hear age discrimination claims by pensioners that they were not paid lump sums in respect of a change in the basis for pension increases which were made to current employees, the Employment Judge failed to consider whether the claims fell within both limits of the Equality Act 2010 section 108(1)(a) and (b). Further the Employment Judge erred in applying section 108(1)(a).

Slade DBE J
[2015] UKEAT 0327 – 14 – 2409
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552699

EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – The Claimant’s case before the ET had been one of direct dismissal for the purpose of section 95(1)(a) Employment Rights Act 1996, specifically whether the contract under which the Claimant was employed had been terminated by the Respondent’s conduct in not rostering the Claimant for any work for the week commencing 4 November 2013. Having rejected the Respondent’s case that the Claimant had accepted a bank contract, the ET nevertheless found that the Respondent’s conduct, in not scheduling any shifts for the Claimant for the week commencing 4 November 2013, amounted to an exercise of its right to vary his working hours in accordance with local variation, as permitted under his employment contract.
It was, however, unclear whether the ET was thus finding that the Respondent was exercising an existing right to vary the Claimant’s working hours or that it was thereby varying the Claimant’s contract of employment; the ET’s reasoning allowed for both readings.
If it had found that the Respondent was exercising its right to vary the Claimant’s working hours under an existing contractual right, it was unclear – in the light of the ET’s other findings – how it found that to be the case given the wording of the clause in question.
If the ET had found the Respondent’s conduct amounted to a variation of the Claimant’s contract, the question was whether it brought that contract to an end and gave rise to a new contract (Hogg v Dover College [1990] ICR 39; Alcan Extrusions v Yates [1996] IRLR 327). Although the Claimant’s case may not have been expressly labelled as giving rise to a Hogg/Alcan dismissal, he was clearly relying on the Respondent’s conduct as having brought his existing contract to an end such as to give rise to a direct dismissal for section 95(1)(a) purposes. He was thus not raising a new argument on appeal but one that, in substance, he had sought to pursue before the ET. As the ET’s reasoning did not properly provide an answer to that case, the appeal would be allowed and this point remitted to the same ET for reconsideration.

Eady QC HHJ
[2015] UKEAT 0445 – 14 – 1307
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552422

EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – Redundancy dismissal – the fairness of the dismissal for that reason – whether the Claimant’s argument that the Respondents had acted in breach of contract was relevant to the question of fairness
Having found the Claimant had been dismissed by reason of redundancy, the ET further found that the dismissal for that reason was fair in all the circumstances of the case. In reaching that conclusion, the ET did not consider the alleged (by the Claimant) breach of contract on the part of the Respondents was relevant but even if there had been such a breach (on which the ET made no finding), the dismissal was still fair.
On appeal, the Claimant argued that the ET had erred in law by failing to make a specific finding as to whether the Respondents had acted in breach of contract. She contended that she had a contractual right to continue to be employed for the term of Lady Sainsbury’s life plus six months and, by dismissing her earlier than this, the Respondents had acted in breach of contract and that was relevant to the fairness of the dismissal.
The general principle was that the statutory right not to be unfairly dismissed was wholly separate from common law entitlement under a contract of employment (Treganowan v Robert Knee and Co Ltd [1975] ICR 405). In some cases, it had been allowed that the contractual position might be relevant to (albeit not determinative of) the question of fairness of a dismissal; see Redbridge LBC v Fishman [1978] ICR 569, Hooper v British Railways Board [1988] IRLR 517, Farrant v the Woodroffe School [1998] ICR 184 and Ford v Libra Fair Trades Ltd UKEAT/0077/08/MAA. Such cases, however, involved alleged breaches of contract which gave rise to issues that had proper coincidence with the determination of the fairness of the dismissal. That was not this case. The Claimant was not saying that the Respondent had contractually committed not to making her redundant, simply that the issue of job security was part of the relevant factual background. Her argument was really that the Respondents had acted in breach of contract in dismissing her before the period in question had expired (the lifetime of Lady Sainsbury plus six months). That was an issue that went to the timing of the dismissal, not the fairness of the dismissal for the reason in question. The ET had correctly characterised this as no different from a case involving an allegation of short notice.
In the alternative, the ET had concluded that the dismissal was fair even if it had been in breach of contract as the Claimant alleged. Having regard to what the ET found that the Respondents had taken into account (and applying a range of reasonable responses test), that was a permissible conclusion and it was not open to the EAT to interfere.
Appeal dismissed.

Eady QC HHJ
[2015] UKEAT 0278 – 14 – 1707
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552424

EAT Practice and Procedure : Striking-Out/Dismissal – VICTIMISATION DISCRIMINATION
It had been determined at an earlier Preliminary Hearing – and was not in dispute either before the Employment Judge or on this appeal – that there could in principle be a claim of associative victimisation. The question for the Employment Judge was whether there was any reasonable prospect of success in such a claim.
Held: the Employment Judge erred in law in seeking a particular form or degree of association for the purpose of a claim of associative victimisation. What matters is whether the treatment of the Claimant was by reason of his association with another who made protected acts: EBR Attridge LLP v Coleman [2010] ICR 242 at paragraph 16 followed and applied.

David Richardson HHJ
[2015] UKEAT 0108 – 15 – 2007
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552425

EAT Contract of Employment : Wrongful Dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke – PRACTICE AND PROCEDURE – Disposal of appeal including remission
An Employment Tribunal dismissed an employee’s claims for unfair, and for wrongful dismissal. The issue was whether the Employment Tribunal had directed itself correctly, and/or made any, or adequately reasoned, findings of fact in support of its conclusion that an employee was not wrongfully dismissed. The appeal was allowed. The Employment Appeal Tribunal held, in the light of the Employment Tribunal’s express Reasons, and in the light of an express misdirection in those Reasons, that the Employment Tribunal had either, not in terms found that the employee had committed the gross misconduct alleged against him, or if it had done so by implication, had not explained how and why, given that it heard no evidence from anyone for the employer who had witnessed the alleged misconduct.

Elisabeth Laing DBE QC J
[2015] UKEAT 0025 – 15 – 2207
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552423

EAT Unfair Dismissal : Reasonableness of Dismissal
DISABILITY DISCRIMINATION – Direct disability discrimination
1. The Respondent is a publicly funded independent school with approximately 1,200 pupils aged eight to 18 and is successor to a school administered by the local authority. The academy is what might be regarded as an ‘urban’ school. Its catchment area includes deprived areas, and the make up of the school is reflected in the fact that over 50% of its pupils have entitlement to free school meals. Prior to achieving academy status in 2009, it had been subject to special measures on several occasions and suffered a succession of poor academic results. It was well recognised that many pupils displayed aggressive and challenging behaviours. The school has adopted an ethos of trying to work with students who had displayed aggressive behaviour rather than permanently excluding them, as had been its previous ethos.
2. The Claimant was a long serving teacher having commenced employment with the school, prior to its achieving academy status, in 2000. She was a well-regarded member of staff with a clean disciplinary record and no history of unacceptable sickness absence.
3. At the material time the Claimant was Director of Learning ICT and responsible for leadership and development in the ICT Department with a teaching role.
4. In March 2011 the Claimant was assaulted by a pupil and suffered injury and an acute stress reaction. She returned to work for a short period but suffered a relapse after seeing the pupil on the school premises. She again returned to work but in December 2011 the stress reaction again manifested itself and she ceased work and never returned. From this time she was disabled within the meaning of the Equality Act 2010.
5. While absent from work the Claimant’s teaching duties were covered by a part-time teacher being paid to work full-time. Her other duties were covered by colleagues.
6. Medical reports made available to the Respondent did not give any clear prognosis as to when she might be able to return to work. She was also uncooperative (as was her GP) in providing information, including information as to her medical condition, to the Respondent that would enable it to consider whether a return to work was likely or whether there were any adjustments which could be made to facilitate her recovery.
7. In those circumstances in January 2013 the Respondent determined to activate its sickness management policy and called a medical incapacity hearing before a panel of Governors for 28 January 2013 at which it was made clear to the Claimant that her continued employment was to be considered.
8. At the medical incapacity hearing there was no clear evidence as to when the Claimant might return to work although she was hopeful of being able to return to work by the end of April 2013. However her therapist had said she would be in a better position to advise after seven sessions to be completed in approximately three months, but was reluctant to confirm that the Claimant would be able to return after those sessions.
9. The panel determined to terminate the Claimant’s employment for three reasons:
(a) the length of the absence (12 months), which was continuing with no fixed date of her return;
(b) there was no sign of improvement in the Claimant’s condition to enable her to return to the school in April 2013;
(c) concerns of the likelihood of a similar or other incident re-occurring and this resulting in a further period of absence.
10. The Claimant exercised her right of appeal which was by way of review, not rehearing. The appeal was dismissed.
11. The Employment Tribunal was satisfied that neither at the medical incapacity hearing nor the appeal had any consideration been given to the impact of the Claimant’s absence on the ‘business’, and that there had been no weighing up of the effects of terminating the Claimant’s employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further three months.
12. The Employment Tribunal considered that the Claimant had suffered discrimination arising from her disability by reason of her dismissal contrary to section 15 of the Equality Act 2010 because the Respondent had failed to show that the dismissal was a proportionate means of achieving, what was accepted to be, the legitimate aim (efficient running of the school, reduction of cost and providing a good standard of teaching). The Respondent had failed to adduce evidence of the adverse impact on the school’s business of the long-term absence of the Claimant, before the panels at the medical incapacity hearing and appeal, or before the Employment Tribunal. Additionally there was a less discriminatory means of achieving the legitimate purpose, namely to ‘wait a little longer’ to establish whether the Claimant would be able to return to work in the near future. This decision should have been taken by the appeal panel. The decision to dismiss was also flawed because the Respondent had concluded that a further incident might lead to a relapse without any medical evidence. A less discriminatory response would have been to postpone the decision to dismiss pending up to date medical evidence on the point.
13. The Employment Tribunal also found that the Claimant had been unfairly dismissed because any reasonable employer would have conducted a balancing exercise as required under section 15 of the Equality Act 2010.
14. The Claimant’s other claims were dismissed.
15. The Employment Appeal Tribunal held that the Respondent was not obliged to call evidence in order to establish that the dismissal was a proportionate response; it could rely on any material available before the Employment Tribunal. Further the Employment Tribunal had failed to use its experience and common sense as an industrial jury by taking into account that it was obvious that long-term absence of a senior employee with teaching leadership and administrative roles from the school was bound to have had an adverse impact on its business, including the additional expense of paying for cover of her teaching duties. There was substantial material before the Employment Tribunal which went towards the question of justification to which the Employment Tribunal failed to take into account.

16. In relation to unfair dismissal, the Employment Appeal Tribunal was concerned that the Employment Tribunal, despite its warning, had substituted its view as to what a reasonable employer would have done rather than considering whether the Respondent had acted within the reasonable range of responses. It was also considered that the Employment Tribunal had placed inappropriate emphasis on what took place at the appeal hearing rather than the medical incapacity hearing when the decision to dismiss was taken when applying the test for justification.

17. The Employment Tribunal had failed to grapple with the question of how long the Respondent should have been required to wait. The issue was not whether the Respondent could accommodate the Claimant’s prolonged absence but whether it should be required to do so.

18. There was force in the submission that the Employment Tribunal had conflated the question of proportionality under section 15 of the Equality Act 2010 with reasonableness under section 98(4) of the Employment Rights Act 1996.
19. Appeal allowed and case remitted for hearing before a fresh Employment Tribunal.

Serota QC HHJ
[2015] UKEAT 0051 – 15 – 1809
Bailii
Equality Act 2010
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552426

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – Reasonableness of dismissal
The Employment Tribunal had found that the dismissal of the Claimant had been for a reason related to his conduct. Its findings as to the facts operative on the Respondent’s mind (at each stage of the disciplinary process), however, did not include those matters which the Employment Tribunal itself considered significant and which it found would render the dismissal fair. It did not make that finding in respect of the matters it had found had been relied on by the Respondent. In those circumstances, the Employment Tribunal had substituted its view of the (fair) reason for the dismissal for that it found operative on the Respondent’s mind. That inevitably tainted its conclusion as to the question of the fairness of the dismissal more generally and rendered its Judgment unsafe.
Alternatively, the Employment Tribunal had not fully considered all matters relating to the question of fairness in the light of the matters it had found would constitute a fair reason for the dismissal.
These criticisms of the Employment Tribunal’s conclusions further undermined its alternative findings on contributory fault and Polkey.
The appeal would be allowed on all bases; the Employment Tribunal’s Judgment could not stand and the case would need to be considered afresh. In the circumstances, this should be before a different Employment Tribunal.

Eady QC HHJ
[2015] UKEAT 0080 – 15 – 0707
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552420

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Constructive dismissal
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
An employee resigned, giving a number of grounds for doing so in her letter of resignation. She claimed she had been constructively dismissed, and that the principal ground for this was that she had made a protected disclosure. The Employment Tribunal accepted she had made such a disclosure, and had suffered detriment because of it, but rejected her claim that the dismissal was principally for that reason. It nonetheless held that she had been entitled to resign, and upheld her claim of unfair dismissal. The employer appealed against this conclusion, arguing that of the seven matters which the Claimant alleged had been breaches of contract toward her, those which she regarded as most serious were found by the Tribunal to be no breaches. As to the other grounds, it was held on appeal that the Tribunal did not set out its reasoning sufficiently on most of them, but it remained unchallenged that incidents on 17 February 2014 had been in part a reason for her resignation. A submission that they might not have been repudiatory, taken on their own, was rejected: in context, any court would have held them to be so. An argument that the resignation would have happened anyway, if the breach had not occurred, and that therefore there should have been no finding of constructive dismissal, was rejected: this was in effect to reinstate a test that a repudiatory breach established by an employee as the reason for her dismissal had to be the effective or principal reason for resigning, and that was not the law (applying Wright v Ayrshire). The appeal was dismissed.

Langstaff P J
[2015] UKEAT 0106 – 15 – 2107
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.552421

[2011] EWCA Civ 187
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.430228

Pill, Hooper, Pitchford LJJ
[2010] EWCA Civ 428
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.414587

[2003] EAT 766 – 02 – 1903, [2003] UKEAT 766 – 02 – 1903
Bailii, Bailii
England and Wales
Citing:
See Also – Armstrong v Walter Scott Motors (London) Ltd EAT 16-Jul-2002
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 January 2022; Ref: scu.189281

EAT Time Limits – Reasonable practicability.

The Honourable Mr Justice Burton (President)
[2004] UKEAT 0452 – 04 – 2007, UKEAT/0452/04
Bailii, EAT
England and Wales
Cited by:
Main Judgment – Iron and Steel Trades Confederation v ASW Ltd (Costs) EAT 20-Jul-2004
EAT Although the claim had no reasonable prospect of success and was dismissed without judgment being reserved, Applicant did not act unreasonably in bringing or continuing it (particularly since it was sifted . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 January 2022; Ref: scu.216047

[1997] UKEAT 708 – 97 – 1712
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.208046

Mummery J
[1995] UKEAT 1218 – 94 – 1210
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.209357

[2004] UKEAT 0776 – 03 – 0103
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.196805

[1999] UKEAT 1150 – 98 – 1404
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.205060

[1997] UKEAT 466 – 97 – 0812
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.208042

Allegation of breach of post employment restrictions

Freedman J
[2019] EWHC 42 (QB)
Bailii
England and Wales

Employment

Updated: 04 January 2022; Ref: scu.632716

EAT Practice and Procedure : Review – The Employment Judge failed, in refusing to extend time for applying for a reconsideration, to demonstrate that he had given any consideration to the underlying merits of the party making the application.

Wilkie J
[2015] UKEAT 0053 – 15 – 0207
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.552077

EAT Unfair Dismissal : Procedural Fairness/Automatically Unfair Dismissal
The Claimant was employed by the Respondent as an Aviation Security Compliance Inspector.
The Respondent launched an investigation into possible misconduct by the Claimant in relation to his expenses and use of hire cars.
Mr Goodchild, a manager was appointed to conduct the investigation and act as dismissing officer if necessary. Mr Goodchild was inexperienced in disciplinary proceedings and during the course of preparing his report and decision received advice from the Respondent’s Human Resources Department. The advice he was given was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency. The advice extended to issues of the Claimant’s credibility and level of culpability. Mr Goodchild’s first draft report contained a number of favourable findings so far as concerned the Claimant. For example, he found that the Claimant’s misuse was not deliberate; there was no compelling evidence that the Claimant’s actions were deliberate; he found that explanations given by the Claimant for expenditure on petrol were ‘plausible’ and that he had made a persuasive argument in relation to his fuel expenditure and offered a compelling and plausible justification for fuel use being significantly in excess of that expected by the line manager. He concluded: he was minded to find the Claimant: ‘guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct . . ‘
After communications between Mr Goodchild and Human Resources, Mr Goodchild’s position as evidenced by further drafts became more critical of the Claimant. Favourable and exculpatory findings were removed and in the eventual final report Mr Goodchild wrote that:
‘Having given careful consideration to all the facts of the case, I am minded to conclude that, on the balance of probability, the claimant is guilty of gross misconduct in respect of both the misuse of the Corporate card and the misuse of hire cars funded by the Respondent. My recommendation is that he should be dismissed from his post.’
The recommendation was subsequently changed to one of summary dismissal which was effected. No new evidence came to light after the initial report and the Employment Judge failed to explain what it was that persuaded Mr Goodchild to change his views so radically. Human Resources appear to have sought to persuade Mr Goodchild to take a more critical view of the Claimant’s conduct and to reject his explanations for certain expenditure that the Claimant had maintained was the result of mistakes by him as Mr Goodchild originally appears to have accepted. There was an inference that Mr Goodchild had been inappropriately lobbied by Human Resources and the Employment Judge had not given sufficient consideration as to what had led to Mr Goodchild’s change of heart.
Although a dismissing or investigating officer is entitled to seek guidance from Human Resources or others, such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity. Chhabra v West London Mental Health NHS Trust [2014] ICR 194 applied.
A Claimant facing disciplinary charges and a dismissal procedure is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them.

Serota QC HHJ
[2015] UKEAT 0352 – 14 – 0409
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.552080

EAT Disability Discrimination : Compensation
Assessment of pension loss
1. The Employment Tribunal did not err in law in declining to discount the award of pension loss to take into account the chance that the Claimant would obtain work as a teacher and thereby gain access to a final salary pension scheme again. It was entitled to find that there was no realistic chance that the Claimant would obtain such work. Abbey National plc v Chagger [2010] ICR 397, Thornett v Scope [2007] ICR 236 and Eversheds Legal Services v De Belin [2011] ICR 1137 considered.
2. The Employment Tribunal erred in law in the way in which it calculated the Claimant’s pension loss from the age of 52 to 60. Chief Constable of the Metropolitan Police v Gardner UKEAT/0174/11 and Griffin v Plymouth Hospital NHS Trust [2014] EWCA Civ 1240 considered.
3. The Employment Tribunal erred in law by discounting the Claimant’s pension loss from the age of 60 onwards for accelerated payment: it had already adopted tables for the multiplier which took accelerated payment into account.
4. The Employment Tribunal erred in law in ‘grossing up’ the award of compensation for loss of pension when it had used gross figures for assessing that loss. However, it was correct to proceed on the basis that the award of compensation for loss of pension would be taxed under Part 6, Chapter 3 of the Income Tax (Earnings and Pensions) Act 2003: Yorkshire Housing Limited v Cuerden [2010] UKEAT/0397/09 followed.
5. The Respondent sought to ‘renew’ at the Full Hearing a ground of appeal which had been rejected under Rule 3(7). It had made no application under Rule 3(10) and was long out of time for doing so. It was not entitled to renew a ground of appeal in this way.

David Richardson HHJ
[2015] UKEAT 0027 – 15 – 0909
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.552079

Unfair Dismissal : Contributory Fault – Whether the Employment Tribunal sufficiently explained their reasoning in finding 50 per cent contributory conduct; see Steen. They did.

Peter Clark HHJ
[2015] UKEAT 0074 – 15 – 0807
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.552076

EAT UNFAIR DISMISSAL – Retirement
The Tribunal addressed the fairness of a ‘retirement’ dismissal under ordinary unfair dismissal principles pursuant to section 98 Employment Rights Act 1996 (ERA) and failed to consider whether or not there was compliance with the continuing notification duty in paragraph 4 of Schedule 6 of the Employment Equality (Age) Regulations 2006 (now repealed), and if so, whether the dismissal was automatically unfair under section 98ZG(2)(a) ERA 1996. This was a material error of law. The Employment Appeal Tribunal held that the notification duty under paragraph 4 carried with it the same strict duty to refer expressly to paragraph 5 of Schedule 6, as the Court of Appeal has held is imposed by paragraph 2: see R and R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410 (CA). Accordingly, there was a failure to notify under paragraph 4 Schedule 6 and the dismissal was automatically unfair. The parties agreed that the Employment Appeal Tribunal should substitute this finding with a basic award only in light of the Tribunal’s remaining findings.

Simler J
[2014] UKEAT 0167 – 14 – 2810, [2015] ICR 483
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551968

EAT CONTRACT OF EMPLOYMENT
Whether established
Written particulars
Joint and several liability. The respondents had each employed the claimant. The Employment Tribunal found that it was difficult to distinguish between the claimants who were associated employers. It therefore made liability to pay compensation joint and several, that is the whole amount could be enforced against either party. The second respondent accepted liability for the whole sum. The first respondent denied liability for the sum due in respect of employment by the second respondent. The claimant argued that there were sufficient findings to enable the Employment Tribunal to make the award on the basis of joint and several liability. Concern was expressed that the second respondent, a limited company, should not have sole responsibility for payment as it may have no assets.
Held: there was no finding that the first and second respondent traded under each other’s names. There was no basis for joint and several liability. Each was liable for the period in which the claimant was employed by that entity. Observed that the second respondent was at liberty to make payment and it was noted that there was no explanation for its failure to do so thus far.

Hon Lady Stacey
[2014] UKEAT 0302 – 13 – 0310
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551969

UNFAIR DISMISSAL
Constructive dismissal
Compensation
Constructive Unfair Dismissal – Compensatory Award – Limitation on Period of Future Loss
The Employment Tribunal had been entitled to reach the conclusion that the Respondent would fairly have dismissed the Claimant for some other substantial reason after a further 12 weeks. That finding comprehended the background findings in the Claimant’s favour and did not amount to an impermissible short-cut.
Constructive Unfair Dismissal – Compensatory Award – Contributory Conduct
The Employment Tribunal reached conclusions that were entirely open to it both as to the culpable nature of the Claimant’s conduct (that he had made clear he intended to pursue an external campaign to embarrass the Respondent) and as to the relevant chronology, the Claimant having made clear his intention prior to the Respondent’s instruction to him to move to a different department (the repudiatory breach in issue in this case).

Eady QC HHJ
[2014] UKEAT 0144 – 13 – 2711
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551972