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

AGE DISCRIMINATION
The Employment Tribunal did not give sufficient reasons for its conclusions on the question of age discrimination. There was substantial material tending to indicate that the timing of its decision to dismiss the Claimant was wholly or partly because of her age and that she was treated less favourably in this respect than the Respondent would treat others. The Employment Tribunal did not mention this material or say in its reasons how it dealt with it. In a discrimination claim the Employment Tribunal’s reasons were required to address material of this kind.
The Employment Tribunal gave its conclusions on the question of justification by reference to Woodcock v Cumbria Primary Health Care Trust [2012] ICR 1126. It should have reached its own reasoned conclusions on the question of legitimate aim and proportionality. Woodcock was not intended to lay down any general principle that eliding a redundancy or redeployment process because of an employee’s age would always be a proportionate means of achieving a legitimate aim.

David Richardson HHJ
[2014] UKEAT 0114 – 14 – 2908
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551967

David Richardson HHJ
[2015] UKEAT 0350 – 14 – 0309
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551966

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant was a consultant doctor. She was found to have been guilty of two acts of gross misconduct. The first was that she had put pressure on a patient to take part in a clinical trial. The other was that she had publicly used qualifications which she did not in fact possess. The Respondent summarily dismissed her. The Employment Tribunal found that the dismissal was unfair because the Respondent had not properly taken into consideration the mitigation that was available to the Claimant and that the sanction of dismissal was outside the range of reasonable responses available to a reasonable employer.
Held, (1) The Employment Tribunal had fallen into the error of substituting its own view for that of the Respondent. The Respondent had taken mitigation into account, at least at the appeal stage of its process. (2) Further and in any event, the Employment Tribunal’s view was one to which no reasonable Tribunal could have come on the facts of this case.

Singh J
[2014] UKEAT 0198 – 14 – 1212
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551974

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke br />CONTRACT OF EMPLOYMENT – Damages for breach of contract
The Respondent counterclaimed for damages for breach of contract of employment under Article 4 Extension of Jurisdiction Order 1994. The Employment Judge found no loss. On Rule 3(10) Appellant Only Hearing, appeal permitted to proceed on a new measure of damages. The Respondent (Claimant below) objected to new point being taken. Objection upheld. Appeal dismissed.

Peter Clarke HHJ
[2014] UKEAT 0192 – 14 – 1510
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551970

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
PRACTICE AND PROCEDURE – Perversity
A decision by an Employment Tribunal that an employer had not known at the relevant time that an employer was disabled, and thus was under no duty to make adjustments at that time, was challenged on the grounds that the employer had failed to follow the approach set out in Gallop, and in any event had made insufficient enquiry for it to be able to satisfy the tribunal that it had no constructive knowledge of the Claimant’s disability.
Held: The decision of the Employment Tribunal was one of fact, and judgment. It could not be shown that it took an approach to the facts which was erroneous in law: in particular, it did not misdirect itself as the Tribunal whose decision was considered in Gallop had done. Nor was its decision perverse.

Langstaff P J
[2014] UKEAT 0297 – 14 – 1612
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551976

EAT UNFAIR DISMISSAL – Automatically unfair reasons
Protected disclosure – automatic unfair dismissal – section 103A Employment Rights Act 1996
Having found that the Claimant had been constructively dismissed and that the Respondent had not put forward any reason that was capable of being fair for the purposes of section 98 ERA; the Claimant’s dismissal was unfair. The issue was whether the reason or principal reason for that dismissal was a protected disclosure, thus rendering the dismissal automatically unfair for the purposes of section 103A ERA. The ET had found that it was.
The Respondent contended that in so doing, the ET had (1) erred in law in applying a ‘but for’ test rather than determining what was the reason or principal reason for the dismissal; alternatively (2) failed to properly identify the reason or principal reason for the dismissal and/or reached a conclusion that was perverse.
Held:
Although the Claimant had put his case on a ‘but for’ basis, the ET had not fallen into the error of applying that approach but had kept in mind the need to determine what was the reason or principal reason for the dismissal. Where an error did arise, however, was in the ET’s failure to engage with the potential explanations put forward by the Respondent and/or arguably apparent from its own findings of fact. The ET thereby failed to conduct the necessary critical analysis of the Respondent’s reason for its conduct and failed to properly explain its findings and reasoning in that regard. In the circumstances, the appeal on this ground would be allowed and this matter – the section 103A aspect of the claim – remitted to a freshly constituted ET for re-hearing.

Eady QQC HHJ
[2015] UKEAT 0061 – 15 – 1206
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551965

Appeal as to the meaning of three words, those words being ‘as an individual’ in section 146 of the 1992 Act.

Lord Woolf MR, Otton, Ward LJJ
[1999] IRLR 626, [1999] ICR 1047, [1999] EWCA Civ 1064
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 146
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551913

Disability Discrimination: Disability Related Discrimination
The Respondent was introducing a new shift pattern and seeking volunteers for redundancy. It was concerned whether by reason of the Claimant’s type 1 diabetes she was fit to work the new shift pattern and had commissioned a report on this question. The Claimant was unable to decide whether to accept the new shift pattern or to take voluntary redundancy until the report arrived. The Respondent became impatient at the Claimant’s inability to decide and dismissed her peremptorily without any process.
The Employment Tribunal erred in law in finding that the ‘unfavourable treatment’ was a mental process, whereas it should have found that the unfavourable treatment was the Claimant’s dismissal. This, however, it did not affect its fundamental reasoning, which was that the Claimant was dismissed for ‘something arising in consequence of her disability’.
The Employment Tribunal was entitled to find that the dismissal was because of ‘something arising in consequence of her disability’. Contrary to submissions on behalf of the Respondent, this phrase in section 15 of the Equality Act 2010 caused no special difficulty and did not require a restrictive interpretation. IPC Media Ltd v Millar [2013] IRLR 707 followed.

Richardson HHJ
[2015] UKEAT 0042 – 15 – 2205
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551787

EAT Practice and Procedure: Striking-Out/Dismissal – Unless Order – Application for relief from sanction – ET Rules 2013 Rule 38(1) and (2)
On the employer’s appeal against the ET’s decision to granting the Claimant relief from the sanction of the earlier dismissal of his claim for non-compliance with an unless order.
Allowing the appeal:
The ET had to determine whether it was in the ‘interests of justice’ (having in mind the overriding objective) to set aside its earlier order dismissing the claim for failure to comply with an unless order. That was a matter of judicial discretion. It would not be for an appellate court to interfere unless the ET had failed to carry out the relevant balancing exercise (see per Simler J in BBC v Roden UKEAT/0385/14/DA) or taken into account that which was irrelevant or failed to take into account that which was relevant or reached a conclusion that was perverse; TFL v O’Cathail [2013] ICR 614 CA, Governing Body of St Albans Girls School v Neary [2010] IRLR 124 CA (in particular, per Smith LJ at paragraph 49), Global Torch Ltd v Apex Global Management Ltd and Ors (No. 2) [2014] 1 WLR 4495 (see paragraph 13 of the Judgment of Lord Neuberger PSC, approving Lewison LJ in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at paragraph 51), and Harris v Academies Enterprise Trust and Ors [2015] IRLR 208 EAT (per Langstaff P at paragraph 2).
As to what was in the ‘interests of justice’, having regard to the guidance laid down in Thind v Salvesen Logistics Ltd UKEAT/0487/09, this obviously allowed of a broad discretion, the material factors varying considerably, albeit that they would generally include the reason for the default and whether it was deliberate, the prejudice to the other party and whether a fair trial remained possible. The fact that an unless order had been made was also said to be an important consideration but would only be one such consideration.
The ET’s reasoning did not disclose a full explanation of the breach by the Claimant. Although consideration was given to the question whether a fair trial remained possible, the ET considered that question as at the date of the relief from sanction application (3/12/14) rather than the date on which the sanction was applied (1/8/14). There was no indication that the ET had considered whether it was appropriate to adopt this approach, in particular given other relevant considerations such as the importance of finality in litigation.
Further, having regard to the guidance provided by the Supreme Court in Global Torch, a plainly relevant factor was the policy objective behind unless orders, which was not solely a ‘floodgates’ point (as might be suggested by the ET’s reasoning); there was no indication that this had been taken into account.
Similarly, the ET had apparently taken the view that an alternative appropriate sanction was the award of costs against the Claimant but there was no indication that account had been taken of the Respondent’s argument that such an award should be made whether or not relief from sanction was granted.
This is not a case where the ET failed to carry out any balancing exercise but there was an error in the failure to import into the balancing exercise factors that were relevant to the proper exercise of the discretion. The decision was thus rendered unsafe but it could not be said to be necessarily perverse. There being more than one possible outcome on a reconsideration of the point, the matter would be remitted to be considered afresh by a different ET.

Eady QC HHJ
[2015] UKEAT 0128 – 15 – 0206
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551788

Practice and Procedure – JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Claimant (who suffered at the time from alcohol dependency syndrome, coupled with anxiety and depression) lodged a claim for unfair dismissal within time, together with an application for remission of fees. The Central Processing Unit did not receive the remission application, so she sent another. The Central Processing Unit replied to her, rejecting her application, stating that Notice of Payment was enclosed, which it was not. Such a Notice – specifying the date for payment, and that the claim would be rejected if payment was not made by that date – was sent to the wrong address. The date for payment passed. Shortly after, the Claimant asked what was happening with her claim, and on being told it had been rejected for non-payment of fees by the set date, promptly borrowed the fee, and issued a second claim. She had believed until then that her original claim remained ongoing. An Employment Judge held that it was not reasonably practicable for her to have made that complaint within three months of her dismissal, and that she had brought it within a reasonable time thereafter. In doing so, he adopted a concept of ‘acceptance’ of a claim and of ‘valid’ presentation (for neither of which was there any warrant within the statute) in dealing with an argument (which he did not clearly resolve) that because the Claimant had actually made a claim within three months, it could not be said that it had not been reasonably practicable for her to have made her second claim within that period. Nor had he clearly considered whether her belief was reasonable (as Walls Meat v Khan required). His reasoning was thus flawed: but contrary to the Appellant’s submissions it was open to him to determine that it had not been reasonably practicable to make the complaint she did by the second claim (focusing on that) within three months of dismissal, if he had first directed himself appropriately and determined the relevant facts, as he had not. This finding was not necessarily precluded by the fact she had made a first claim within that time-frame. Remitted for redetermination by the same Judge.
It was observed that a Claimant could have applied (and this Claimant still could apply) to extend time for payment of the appropriate fee in the rare case that time for payment as decided by the Tribunal (in whose name the Central Processing Unit had acted) had elapsed, but it was just to do so.

Langstaff P J
[2015] UKEAT 0433 – 14 – 0906
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551790

EAT Practice and Procedure: Costs – The Employment Tribunal made an award against the Claimant of andpound;5,000 in respect of costs. They were entitled to do so on the findings of unreasonable behaviour made by them. Appeal dismissed.

Lady Stacey HHJ
[2015] UKEAT 0443 – 14 – 3004
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551786

EAT Transfer of Undertakings: Service Provision Change

Serota QC HHJ
[2015] UKEAT 0241 – 14 – 0209
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551791

EAT Unfair Dismissal: Reasonableness of Dismissal – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Employment Tribunal did not apply section 98(4) correctly. It stated its own views without recognising or considering that there was a range of reasonable responses in respect of the matters in issue and deciding whether the employer’s actions and opinions fell within the range. It decided the wrongful dismissal claim without any real separate reasoning as if it followed from the unfair dismissal claim. Appeal allowed. Case remitted for re-hearing afresh before a different Tribunal.

Richardson HHJ
[2015] UKEAT 0052 – 15 – 1506
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551789

Moore-Bick, McComb LJJ
[2015] EWCA Civ 857
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551276

Tomlinson LJ
[2015] EWCA Civ 904
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551279

Christopher Clarke LJ
[2015] EWCA Civ 864
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551278

EAT Part Time Workers

[2015] UKEAT 0018 – 15 – 2306
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551061

EAT Transfer of Undertakings – JURISDICTIONAL POINTS – Continuity of employment
The transferee employer appealed against a Decision of the Employment Tribunal (‘the ET’) that the employee’s continuity of employment was preserved by section 212(2) of the Employment Rights Act 1996, despite a transfer of the undertaking in which the employee was employed, between a transferor employer and the transferee. The issue was whether the ET had been entitled to hold, on the evidence, that the employee was employed by the transferor ‘at the time of the transfer’. The appeal was dismissed on the grounds that the ET had correctly directed itself in law and was entitled so to hold on the facts.

Elisabeth Laing DBE J
[2015] UKEAT 0024 – 15 – 1008
Bailii
Employment Rights Act 1996 212(2)
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551070

Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – UNFAIR DISMISSAL – Compensation
The Claimant succeeded on a claim that he had lost his (agency) employment for making a public interest disclosure. At a subsequent Remedy Hearing he argued that if he had not suffered the discrimination he would have become a full-time employee of the Trust and would have remained in its employment until retirement, and on that basis claimed a continuing future loss of earnings. The Employment Tribunal (‘ET’) found that he would actually have been dismissed on 14 November 2013, a date prior to the ET Remedy Hearing, and made no further award for future loss. However, it awarded him compensation for injury to feelings, in the assessment of which it observed that he had effectively been shut out of the labour market because he had to reveal that he lost his job with the Trust for making a public interest disclosure. It was argued on appeal that the ET was bound in law to have considered whether to make an award for ‘stigma’ damages/loss of employability in future, as it was recognised in Abbey National v Chagger could be claimed in appropriate circumstances. Held that this was not such an exceptional case that an argument not advanced below could be heard for the first time on appeal. The ET had not heard it: indeed, it had heard an argument as to future loss which was premised on a very different basis.
Some further facts might need to be established. Although in principle such an award could be made, and did not need first to be formally pleaded (see Chang Wai Tong v Li Ping Sum; Thorn v Powergen plc) it was not so exceptional that it should be heard: the ET had made no error of law in addressing the submissions made to it in circumstances, as distinct from those relevant to redundancy or conduct dismissals, where it could not simply be expected to deal with the argument.
A claim for stigma loss/labour market disadvantage was comparatively unusual, and in finding the facts relevant to the claim for injury to feelings the ET had not been addressing the question of future loss of earnings.

Langstaff P J
[2015] UKEAT 0300 – 14 – 1905
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551060

Frst case management conference in a case which concerns the employment rights of a senior trader who was employed in the trading of commodities. His employment entitled him to certain benefits. Among those benefits were trust arrangements in respect of which the third defendant was trustee. Those trust arrangements are not straightforward. As regards the detail and true effect of those arrangements, as with other aspects of the case, much is in dispute.

Walker J
[2014] EWHC 3990 (Comm)
Bailii

Employment

Updated: 03 January 2022; Ref: scu.551050

EAT Unfair Dismissal: Reasonableness of Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Whether the Employment Tribunal was entitled to conclude that the Respondent had carried out a reasonable investigation in this ‘career-ending’ dismissal of a carer for vulnerable patients. See A v B; Roldan; and Crawford. They were.
Whether the Employment Tribunal was wrong to limit consideration of the race discrimination claim to two agreed issues. They were not.
Appeal dismissed.

Peter Clark HHJ
[2015] UKEAT 0379 – 14 – 1208
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551078

EAT Race Discrimination : Direct – RACE DISCRIMINATION – Inferring discrimination – HARASSMENT – VICTIMISATION DISCRIMINATION – Other forms of victimisation – The Appellant appealed against (1) a Substantive Decision of the Employment Tribunal (‘ET’) dismissing his claims for discrimination and victimisation on the grounds of race, and harassment on the grounds of religion and belief, (2) a Decision refusing to reconsider the Substantive Decision, and (3) a Decision ordering him to pay costs.
The appeals against the Substantive Decision and the Reconsideration Decision were dismissed. The Employment Appeal Tribunal held that the ET had correctly directed themselves in law on the substantive claims. It also rejected an argument that the ET had failed to make reasonable adjustments during the hearing for the Appellant.
It further held that, whether or not the ET had erred in refusing to reconsider its Substantive Decision, the appeal against that decision having been dismissed, it was not in the interests of justice for the ET to reconsider that decision.
The appeal against the Costs Decision was allowed, on the grounds that the ET had given inadequate reasons for ordering the Appellant to pay costs. The costs application was remitted to the ET for reconsideration.

Laing DBE J
[2015] UKEAT 0417 – 14 – 0708
Bailii
England and Wales
Citing:
See Also – Bham v 2Gether NHS Foundation Trust Gloucestershire EAT 12-Sep-2014
EAT Practice and Procedure : Striking-Out/Dismissal – Bias, misconduct and procedural irregularity
The Employment Judge made a determination of time limit issues and struck out Further and Better . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 January 2022; Ref: scu.551062

EAT Agency Workers – The Claimant argued that the Respondent was in breach of its obligations under Regulation 13 of the Agency Workers Regulations 2010 (‘the Regulations’), and Articles 5 and 6 of the Temporary Agency Worker Directive (2008/14/EC) (‘the Directive’) by denying him the opportunity to apply for the position he had temporarily been occupying, as an agency worker, when he was told of the post but that existing permanent employees of the Ministry whose continued employment was at risk following restructuring, and who had for that reason been placed in a redeployment pool, would have preference. He claimed that important points of interpretation of the Regulations and Directive arose. It was held that they provide a right to be informed of vacant posts in the permanent workforce of an end-user undertaking, but not any further right to have preference over existing direct employees of the end-user, nor to have a guaranteed interview, and that to give preference to those in a redeployment pool which did not include the Claimant in these circumstances could not be said to be in breach of the Claimant’s rights. The EAT declined to make a reference.

Llangstaff J
[2015] UKEAT 0403 – 14 – 3107
Bailii
Agency Workers Regulations 2010 13
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551015

EAT Practice and Procedure : Amendment – Case management – Striking-out/dismissal – Preliminary issues – Disposal of appeal including remission – RACE DISCRIMINATION – Inferring discrimination – RACE DISCRIMINATION – Contract workers – RACE DISCRIMINATION – Protected by s41 – JURISDICTIONAL POINTS – Claim in time and effective date of termination – JURISDICTIONAL POINTS – Extension of time: just and equitable – HARASSMENT
The employee appealed against the striking out, on various grounds, of his entire claim for race discrimination and harassment. The appeal was allowed in part. The Employment Appeal Tribunal (‘the EAT’) upheld the decision of the Employment Tribunal (‘the ET’) to refuse permission to amend the claim, and (if an extension of time was necessary) to refuse to extend time for bringing aspects of the claim. The EAT held that the ET had erred in holding that all the pleaded allegations were out of time. The EAT also held that there was sufficient doubt over the adequacy of the ET’s reasons for striking out some claims on the grounds that they had no reasonable prospects of success, and for striking out the claims against certain respondents, to mean that those aspects of the claim should be remitted for reconsideration. The EAT held that they should be remitted to a different ET, on the grounds that the ET had dismissed an application for reconsideration of its decision without giving any reasons for it.

Elisabeth Laing J
[2015] UKEAT 0068 – 15 – 0508
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551016

EAT UNFAIR DISMISSAL – Constructive dismissal
Constructive Dismissal – affirmation
The Employment Tribunal (‘the ET’) found changes to the Claimant’s job (made unilaterally, without consultation and affecting 30% of his work) amounted to a fundamental and repudiatory breach of contract but also found the Claimant had failed to expressly object to those changes between their introduction (17/1/2014) and his resignation (3/3/2014) but had worked to them without objection and had therefore affirmed the contract of employment.
On appeal, held:
(1) On the material before it, the ET had been entitled to conclude the Claimant had not expressed his objection to the changes before his resignation. The first ground of appeal therefore failed.
(2) In considering whether or not the Claimant was to be taken to have affirmed the contract, however, context was everything (see, in particular, W E Cox Toner (International) Ltd v Crook [1981] IRLR 443 EAT; Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121, [2010] IRLR 445 CA; and Chindove v William Morrisons Supermarket plc UKEAT/0201/13/BA). In this case, the ET’s Reasons suggested that there had been a failure to take into account that the Claimant had been away from work due to ill-health from 4/2/2014 until his resignation; his conduct during that period could properly be seen in a different light to the period before that (on the ET’s finding, 10 working days), see Chindove, and it was not apparent that the ET had proper regard to that distinction.
Moreover, it was the Claimant’s case before the ET that he was expecting to receive written confirmation of the Respondent’s conclusions, as an outcome of the meeting on 21/1/2014, and he was biding his time until receipt of this. As the Respondent had agreed to provide the Claimant with written confirmation of the meeting, and did not subsequently inform him that its HR advisors had advised that it should not do so, the Claimant’s position in this respect might be seen to provide an explanation of any failure to expressly object; it was certainly a relevant factor going to the context that the ET needed to engage with in this case. That was all the more so given that the conclusion of the meeting of 21/1/2014 cited by the ET was in fact the record of the Respondent’s own internal discussions in the absence of the Claimant and the written record of this had not been provided to him.
Finally, an employee was to be permitted some time for reflection before it was to be implied that s/he had affirmed the contract after an employer’s repudiatory breach (Buckland) and it was not apparent that the ET had taken this into account as part of the relevant factual matrix, i.e. a case involving someone who had been employed since 2006; who was still awaiting written confirmation of the meeting of 21/1/2014, and whose case was that he was biding his time until he got this; who worked his new duties for 10 days before being signed off due to stress.
The appeal on this basis would be allowed and the question of affirmation remitted to the same ET for fresh consideration.

Eady QC HHJ
[2015] UKEAT 0044 – 15 – 2805
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551013

EAT Unfair Dismissal: Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
Having referred to Taylor v OCS the Employment Judge then failed to consider whether procedural defects found at the dismissal stage were cured on appeal. Arguably they were. Therefore, appeal allowed and case remitted for rehearing before a fresh Employment Tribunal. Also wrongful dismissal claim.

Peter Clark J
[2015] UKEAT 0043 – 15 – 0206
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.551014

EAT Unfair Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Though the Claimant’s complaint was that she had been unfairly dismissed because her employer had failed to consider disclosures she had made about the behaviour of a contractor, had rejected her grievance causing her to become ill, and had then dismissed her for the resultant incapability or for making a protected disclosure (all of which the Employment Tribunal rejected) and had expressly said she took no issue with the fairness of the procedure by which dismissal was effected, the Employment Tribunal proceeded nonetheless to consider the latter. It did not alert the Respondent to the points it ultimately decided rendered the dismissal unfair. There were three, none of which bore examination. First, the Employment Tribunal considered it was unfair to dismiss summarily in breach of contract, when if the employment had continued throughout the notice period the Claimant might have had the chance of alternative employment to her contracted job (to which she could not return for health reasons). This was contrary to established authority (starting with Treganowan v Knee) which is to the effect that the method of dismissal is irrelevant to the issue of fairness; and was inconsistent with the implicit finding when deciding that there should be a 100% Polkey reduction that there was no chance of obtaining any such alternative employment. Second, the Employment Tribunal concluded that the employer had ceased looking for suitable alternative employment 12 days prior to the dismissal, when there was no proper evidential basis for this finding, and the unchallenged evidence was that on the occasion of dismissal the dismissing officer was told that there was then no suitable alternative employment available. Third, the Employment Tribunal thought it unfair of the Respondent not to have asked Occupational Health to clarify whether a double negative in its last report, which read as such said the Claimant was suitable for her original job, was intended. However, not only had the Employment Tribunal not suggested to the dismissing officer (who had not noticed the double negative, and had assumed that the document said that the Claimant was unfit for her old job) that she ought to have read the document more carefully, but that is what, on any proper view in context of the report, it said. The Employment Tribunal had adopted a wholly artificial reading of the document in context when it was clearly stating that the Claimant was not fit, and she accepted she was unfit. Indeed, it was never asserted by the Claimant at the hearing that the decision was flawed because she was fit to do her original work. In any event, an employer was not absolutely bound by the views of an Occupational Health Practitioner anyway (see Gallop v Newport).
Further, on its face the finding as to Polkey left open no chance that the Claimant could return to work within a reasonable time, thereby suggesting that the Employment Tribunal’s view of the context was that the evidence did not suggest any prospect of this.
Since the decision was based on matters which the Claimant had not put into contention before the Employment Tribunal, there was no basis on which the case could be remitted for further consideration. A decision that the dismissal was not unfair was substituted.

Langstaff P J
[2015] UKEAT 0228 – 14 – 1505
Bailii
England and Wales
Citing:
Cited – Treganowan v Robert Knee and Co Ltd QBD 1975
Phillips J considered whether the term of notice of a dismissal may make it unfair: ‘In my judgment, a tribunal has to say to itself, ‘This man was dismissed in such- and-such circumstances. The reason was so-and-so. Have the employers satisfied us . .
Cited – Mensah v East Hertfordshire NHS Trust CA 10-Jun-1998
An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
Cited – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .
Cited – Gallop v Newport City Council CA 11-Dec-2013
An employer was not absolutely bound by the views of an Occupational Health Practitioner. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 January 2022; Ref: scu.550671

EAT Practice and Procedure: Striking-Out/Dismissal – Approach to be taken to application to revoke unless order under Employment Tribunal Rules, Rule 38(2) – akin to that to be adopted to relief from sanction application in an appropriate case.

Mitting J
[2015] UKEAT 0347 – 14 – 1704
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.550669

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
An Appellant who was enjoying an extended holiday on a yacht in the Pacific filled in a Notice of Appeal which though it gave his home address, supplied only an email address in response to the pro forma request to supply a postal address for service. He did not comply with requests to provide such a postal address. An unless order was made, as a result of which his appeal was struck out, but it was subsequently reinstated by the Registrar, who then considered whether it had been properly instituted within the time limit for appealing of 42 days. She held it had not, because it did not provide a postal address for service, and rejected the appeal as being out of time. Held on appeal (determined in the Claimant’s absence since he was on a further voyage) that he had actually provided a postal address, albeit not in response to the direct invitation in the pro forma to do so; that the rule requires only that the Notice be ‘substantially’ in accordance with the form annexed to the Rules, and since the necessary information to satisfy the demands of policy had been given, and it was an address at which and through which the Claimant could be contacted, the Notice of Appeal was properly instituted, the appeal against the Registrar’s Order should be allowed, and the Claimant’s appeal against the Tribunal decision should now be considered on the sift in accordance with Rule 3.

Langstaff P J
[2015] UKEAT 0019 – 14 – 2506
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.550673

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 through to FH). But suggestion of a practice at the EAT that costs would not be awarded (absent deception) where the appeal survived the sift or a PH scotched (dicta in Cootes v John Lewis plc EAT/1414/00 disapproved).

The Honourable Mr Justice Burton (President)
UKEAT/0452/04, [2004] UKEAT 0452 – 04 – 2007C, [2004] IRLR 926
EAT, Bailii
England and Wales
Citing:
Main Judgment – Iron and Steel Trades Confederation v ASW Ltd EAT 20-Jul-2004
EAT Time Limits – Reasonable practicability. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 January 2022; Ref: scu.432801

[1996] UKEAT 1246 – 94 – 1601
Bailii
England and Wales
Citing:
Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 January 2022; Ref: scu.208070

EAT Contract of Employment – Definition of employee

The Honourable Mr Justice Mitting
UKEAT/0367/04, [2004] UKEAT 0367 – 04 – 2007
Bailii, EATn
England and Wales
Cited by:
Appeal from – Hawkins v Darken (T/A Sawbridgeworth Motorcyles) CA 13-Dec-2004
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 January 2022; Ref: scu.214689

The effective date of termination is a statutory construct which depends on what has happened between the parties over time and not on what they may agree to treat as having happened. The EAT upheld the industrial tribunal’s view that, in ascertaining the starting date of a period of continuous employment under the 1978, only the statutory provisions were admissible.

Judge Peter Clark
[1996] UKEAT 867 – 95 – 1101
Bailii
Employment Protection (Consolidation) Act 1978
England and Wales
Cited by:
Cited – Fitzgerald v University of Kent at Canterbury CA 17-Feb-2004
The parties had been in negotiations, attempting to settle a proposed action for unfair dismissal. They agreed to fix the effective date of determination at a certain date, but this was after the date fixed by the statute. The action was begun . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 January 2022; Ref: scu.194277

[1997] UKEAT 984 – 97 – 0312
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.208065

[1997] UKEAT 1219 – 97 – 0512
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.208063

[1997] UKEAT 1169 – 97 – 0812
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.208061

[2003] UKEAT 1379 – 01 – 1401
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.191316

The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the business. The union complained that inadequate information had been provided to allow consultation on a transfer. The company replied that IPCS was decided incorrectly in that the requirement to make disclosures applied only to the situation where consultation was obligatory, and not where as here, consultation was voluntary.
Held: The submission was ill founded: ‘Mr Hyams contends that the purpose behind the requirement to provide information under Regulation 13(2) is to put at rest the minds of affected employees as far as possible at a time of impending changes. We think that it goes further than that; it is designed to allow the representatives of those employees to engage in a consultation process with the employer on an informed basis. Whether the employer is obliged to engage in such a consultation exercise is dependent on Regulation 13(6).’
A responsible employer will not necessarily limit consultation to the measures being taken. The court should be slow to disturb a well settled interpretation of the law.

Peter Clark J
[2009] UKEAT 0538 – 08 – 2910, [2010] IRLR 42
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales
Citing:
Cited – Institute of Professional Civil Servants (IPCS) v Secretary of State for Defence ChD 1987
The legislative purpose of the provision of information as to a proposed transfer of an undertaking is to facilitate proper and effective consultation, though the transferor need only inform of those measures which he actually envisages will be . .
Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
Cited – Glennie v Independent Magazines (UK) Limited CA 17-Jun-1999
A party is under a duty to present his entire case at the first hearing in the Employment Tribunal. Where a claimant’s representative had decided to adopt a particular position in law when making representations to the original industrial tribunal, . .
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – Regina v Gwent County Council ex parte Bryant 1988
The court described what was meant by consultation: ‘Fair consultation means: (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious . .
Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 January 2022; Ref: scu.380266

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason – Reasonableness of dismissal – The ET’s Reasons stated it had found that the Respondent had established its reason for dismissing the Claimant, which was a reason related to her conduct. If (as the Claimant contended) it had not so found, its reasoning was inadequate.
In assessing the fairness of the dismissal for that reason, the ET had fallen into the substitution mindset; in particular, it had erred in substituting is view of the witnesses (who it had not given evidence before the ET) rather than engaging with the evidence of the Respondent’s decision takers (who had seen and heard those witnesses) on the credibility of the material before them.
Generally, the ET’s reasoning failed to demonstrate the application of the range of reasonable responses test. This was also true to the extent that the ET criticised the Respondent’s procedure. It failed to explain why proceeding with the disciplinary hearing in the Claimant’s absence fell outside the range in the particular circumstances of this case and further failed to identify why any such procedural error was not remedied at the appeal stage.
Mindful of need for caution before interfering with an ET’s judgment call on an unfair dismissal case, this decision could not stand and the appropriate course was to allow the appeal and remit this matter to be heard by a freshly constituted ET.

Eady QC J
[2015] UKEAT 0035 – 15 – 1405
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550123

EAT Practice and Procedure – The appeal considered what amounted to a cross-appeal. It was held that a cross-appeal is one brought against a finding or decision adverse to the party appealing it, which was made in the same proceedings, by the same Tribunal, on the same date and on the same occasion as the Tribunal had made a decision against another party to the proceedings which that party had already appealed. On the facts of the present proceedings, the cross-appeal here was properly described as such and brought within time.

Langstaff P J
[2015] UKEAT 0397 – 14 – 1905
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550122

EAT Practice and Procedure: Striking-Out/Dismissal – Paragraph B2 of an order required disclosure to be made, and paragraph B3 provided for subsequent inspection of that which was disclosed. It was not complied with, so the Respondent obtained an unless order, which required B2 to be complied with by a given date. It was, but inspection was not given. The Respondent applied for an order to compel this, since trial was imminent. The Employment Judge made an order recording that the unless order had not been complied with. This was in error, since B2 had been, and it was B3 that was outstanding. The Respondent’s argument that the Employment Judge’s decision was nonetheless plainly and obviously right was rejected. Though the Employment Appeal Tribunal had some sympathy with the Respondent’s position, it could not say that there was only one possible outcome. An application for costs by the Respondent was rejected, since what the Claimant had done did not come within the wording of Rule 34A(1), and if it had done the Employment Appeal Tribunal would not have exercised its discretion to award them. However, nothing in the Judgment precluded the Employment Tribunal from hearing and ruling on any application to strike-out the claim which might hereafter be made by the Respondent, relying on persistent non-compliance.

Langstaff P J
[2015] UKEAT 0414 – 14 – 0605
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550125

EAT UNFAIR DISMISSAL – Automatically unfair reasons
The Claimant claimed that she had been automatically unfairly dismissed for making protected disclosures within the meaning of Employment Rights Act 1996 section 43. Save in respect of disclosures to HMRC, the Employment Tribunal erred in failing to make findings as to whether she had made qualifying disclosures to a legal advisor in accordance with section 43D or to a prescribed person in accordance with section 43F as had been required by an Order of another Employment Judge. The Employment Tribunal struck out the allegations which formed the basis for these disclosures. The Employment Tribunal erred in holding that the disclosures to HMRC were not protected disclosures because the Claimant had not told the Respondent about them. Further, the Employment Tribunal failed to consider whether the Respondent was aware of the disclosures to HMRC by other means and therefore whether the reason for dismissal was the protected disclosures. In light of these errors together with concern about the conduct of the proceedings which included striking out allegations of protected disclosures without consideration of sections 43D and 43F, the dismissal of the claim of automatic unfair dismissal under section 103A was set aside and remitted to a differently constituted Employment Tribunal. If the claim under Employment Rights Act section 103A is dismissed, the finding of ordinary unfair dismissal and related compensation is to stand.

Slade DBE J
[2015] UKEAT 0227 – 12 – 3006
Bailii
Employment Rights Act 1996 43
England and Wales
Cited by:
See Also – Schaathun v Executive and Business Aviation Support Ltd (Practice and Procedure: Costs) EAT 13-Jul-2015
PRACTICE AND PROCEDURE – Costs
The Employment Judge came to an impermissible conclusion on the facts in finding that the Claimant had asked the Tribunal to make a Norwegian interpreter available at the Full Hearing. Her email was plainly an . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 January 2022; Ref: scu.550127

EAT Unfair Dismissal: Automatically Unfair Reasons – The Employment Tribunal, though it dealt with all the issues identified in the pre-trial list of issues, failed to consider an issue which, though not spelled out in that document, was, nonetheless, an issue in the case as argued before the Employment Tribunal. The Employment Tribunal had heard evidence on the issue, tested in cross examination and the issue was the subject of written and oral submissions by the parties in their closing addresses.
The appeal was allowed and the case remitted to the same Tribunal for it to determine that issue and its consequences upon the decision on liability.

Wilkie J
[2015] UKEAT 0380 – 14 – 0707
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550130

EAT Age Discrimination – Five Police Forces needed to make manpower savings to ensure continuing efficiency whilst suffering budget cuts. By law (A19) no officer could be retired in order to secure efficiency unless he had an entitlement to a pension worth 2/3 of average pensionable pay, which an officer was entitled to start receiving, without actuarial reduction, after 30 years service. The Forces retired those officers who had such an entitlement. The officers complained they had thereby been indirectly discriminated against on the ground of age, and an ET upheld their claims. On appeal, it was held that although (contrary to the contention of the Forces) what was in issue was the practice of the Forces in adopting A19, the ET failed to have regard to the fact that the discriminatory element was entirely Parliament’s choice, failed to consider whether the means adopted was appropriate and reasonably necessary to the scheme actually adopted by the Forces and thereby fell into the error of law exposed in the cases of Benson and Blackburn, wrongly took into account and criticised the process by which the Forces had adopted their schemes rather than asking whether to do so was justified objectively, applied too high a standard of scrutiny anyway, and suggested as alternative means of achieving the aim of the Forces matters which could not provide that certainty of saving which the evidence had established was essential. Since there was no way in which the Forces could have achieved their aims other than by use of A19 it was reasonably necessary to do so, and this was appropriate: the Tribunal decision was reversed, and the claims all dismissed.

Langstaff J P
[2015] UKEAT 0189 – 14 – 0807
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550132

EAT Unfair Dismissal: Automatically Unfair Reasons – Automatic Unfair Dismissal – Section 100(1)(e) Employment Rights Act 1996 – Applying the two-stage approach laid down by the EAT in Oudahar v Esporta Group Ltd [2011] IRLR 730 (HHJ David Richardson presiding), the Claimant’s case before the Employment Tribunal did not satisfy the criteria required for the first stage. Characterising the Claimant’s case in this way was not unfairly taking a pleading point against him. He had been given the opportunity to provide further particulars of his case and the Employment Judge had further sought to clarify the nature of his complaint at the Preliminary Hearing. It was on the basis of the Claimant’s case as thus put that the Employment Tribunal determined it had no reasonable prospects of success and should be struck out. The case as now characterised on appeal was not the way in which the claim was put below and the Employment Tribunal did not err in determining the case before it. Appeal dismissed.

Eady QC HHJ
[2015] UKEAT 0036 – 15 – 2105
Bailii
Employment Rights Act 1996 100(1)(e)
England and Wales
Citing:
Cited – Oudahar v Esporta Group Ltd (Unfair Dismissal : Automatically Unfair Reasons) EAT 22-Jun-2011
EAT UNFAIR DISMISSAL – Automatically unfair reasons
Unfair dismissal – automatically unfair reasons – health and safety cases.
Section 100(1)(e) should be applied in two stages.
Firstly, the . .
Cited – Ezsias v North Glamorgan NHS Trust CA 7-Mar-2007
The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT.
Held: A claim should not be struck out where, as here, there were facts . .
Cited – Romanowska v Aspirations Care Ltd EAT 25-Jun-2014
EAT Practice and Procedure : Striking-Out/Dismissal – VICTIMISATION DISCRIMINATION – Protected disclosure
The Claimant, a worker on the permanent staff of a care home, asserted in her ET1 that her dismissal . .
Cited – Kuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 January 2022; Ref: scu.550124

EAT UNFAIR DISMISSAL
Automatically unfair reasons
Contributory fault
Whether the Employment Tribunal was entitled to find that dismissal was for an inadmissible reason under section 152 Trade Union and Labour Relations (Consolidation) Act 1992 / section 104 Employment Rights Act 1996. They were.
Whether the Employment Tribunal finding as to the reason for dismissal precluded a finding of contributory conduct, as the Employment Tribunal appeared to conclude. It did not. The issue of contribution remitted to the same Employment Tribunal (sitting on the Liability Hearing) if practicable. Appeal by the Respondent employer allowed to that extent.

Peter Clark HHJ
[2015] UKEAT 0067 – 15 – 0307
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550129

EAT Working Time Regulations: Worker – Holiday pay – Working Time Regulations – Annual Leave – Sick Leave – Whether Worker Entitled To Carry Over Periods of Annual Leave to Later Years If Absent On Sick Leave – Whether There Is Any Limit on the Period During Which Annual Leave May Be Carried Over

Lewis J
[2015] UKEAT 0071 – 15 – 0807
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.550131

EAT CONTRACT OF EMPLOYMENT
Implied term/variation/construction of term
Construction of bonus payment term of contract of employment, made in writing.
Applying the reasonable observer test explained by Lord Hoffmann in ICS Ltd v West Bromwich Building Society this EAT rejected the construction placed on the term by the Employment Tribunal and reversed their decision.

Cox J
[2009] UKEAT 0438 – 09 – 2910
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.392528

EAT Claimant was a Lithuanian, employed in a fish processing business and dismissed because his hands were heavily contaminated with e-coli bacteria causing his employers to infer that despite factory rules and a prior warning, he had not washed his hands properly after having been to the toilet. Dismissal automatically unfair due to failure to follow the statutory dismissal procedure but no monetary award made because of the extent to which the claimant had contributed to his own dismissal. Appeal on grounds of inadequate interpretation at hearing and contradiction in the tribunal’s judgment dismissed.

[2009] UKEAT 0033 – 09 – 2910
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.381631

His Honour Judge Halliwell,
(Sitting as a Judge of the High Court)
[2021] EWHC 2227 (Comm)
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.667378

(Mauritius)

Lord Hope,
Lord Clarke,
Lord Dyson,
Sir John Laws,
Sir Patrick Elias
[2011] UKPC 47
Bailii
England and Wales

Employment

Updated: 02 January 2022; Ref: scu.457619

‘This appeal raises once again the familiar questions of when an employment tribunal (ET) is justified in finding that an employer’s decision to dismiss on the grounds of conduct was unfair; and, if the ET does so find, in what circumstances that finding can be successfully challenged on appeal.’

Sir Terence Etherton Ch, Bean, King LJJ
[2015] EWCA Civ 677
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549773

Costs

Shanks HHJ
[2015] UKEAT 0178 – 14 – 1901, [2015] IRLR 381
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549569

EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: reasonably practicable
ET claims of unfair dismissal and for unlawful deductions presented one day out of time; whether the ET had erred in holding it had been reasonably practicable for the claims to have been presented in time and thus that it had no jurisdiction to determine them.
Held:
Dismissing the appeal. The ET had concluded that the Claimant had lodged her claims one day out of time because of her mistaken belief as to when the time limit expired. It did not find that belief had been reasonably held. That was a permissible view on the evidence before the ET.
As for whether the ET ought properly to have taken account of the conclusion of a different ET on a different claim by the Claimant against the Respondent, that argument was not tenable: (1) at the time the ET made its ruling in the present claims, the other ET’s decision had not been made, still less sent it to the parties; and, in any event, (2) the two ETs were answering different questions.
Moreover, the fact that the Respondent had not raised the time limit point earlier did not mean that the ET was not bound to consider it. This was a jurisdictional point and could be taken at any time.
Generally, the ET adopted the correct approach and reached a conclusion entirely open to it on the evidence and findings of fact.

Eady QC HHJ
[2015] UKEAT 0132 – 14 – 2906
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549572

EAT Unfair Dismissal – Whether the Employment Tribunal were entitled to find that the allegation of misconduct had been properly investigated – it was.

Mitting J
[2015] UKEAT 0406 – 14 – 2602
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549570

EAT DISABILITY DISCRIMINATION – Compensation
At a remedy hearing the Employment Tribunal awarded compensation to the Claimant for injury to feelings and personal injuries in a claim for discrimination on the grounds of disability. The Employment Tribunal determined that the Claimant should receive an award of andpound;9,000 in respect of injury to feelings and andpound;3,000 in respect of the personal injury, which was to be subject to the 10% increase directed by the Court of Appeal Simmons v Castle [2012] EWCA Civ 1039, [2013] 1 All ER 334. The Employment Tribunal did not consider it appropriate to make such an increase in respect of the injury to feelings the Claimant appealed on the basis that the 10% uplift should have applied tot the compensation for injury to feelings. The Respondent cross-appealed on the basis that the uplift had no application at all to awards for compensation in the Employment Appeal Tribunal.
The Employment Tribunal held that the decision in Simmons v Castle to apply a 10% uplift for compensation was confined to civil proceedings and did not apply to claims in the Employment Tribunal. The uplift was designed to compensate litigants in actions who would lose the right to recover as part of their costs, if successful, any success fee payable to their legal representatives and the cost of After the Event Insurance Premiums which rights were abrogated by Legal Aid, Sentencing and Punishment of Offenders Act 2012; Sash Windows Workshop v King (UKEAT/0057 and 0058/14) and Cadogan Hotels v Ozog UKEAT/0001/14 not followed.
Appeal dismissed; cross appeal allowed.

Serota QC HHJ
[2015] UKEAT 0328 – 14 – 2003, [2015] IRLR 536
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549571

EAT Practice and Procedure: Striking-Out/Dismissal – The claim was struck out under Rule 37(1)(d) as not being actively pursued, when the Claimant had not produced witness statements nor co-operated in preparing bundles, and had failed to reply to correspondence. On being warned that his claim might be struck out, the Claimant had given reasons for his failure to respond to correspondence, being illness. He supplied a witness statement and disclosed documents. The Employment Judge gave no reasons for his being satisfied that the claim should be struck out. The reasons given were so short as to fail to show the Claimant why he had been unsuccessful. The Employment Appeal Tribunal could not tell from the Reasons why the Employment Judge found it proportionate to strike out the claim. Appeal allowed and case remitted to a fresh Employment Tribunal to hold a Preliminary Hearing, to fix a date for a Full Hearing and make such orders as it finds necessary for case management. The Claimant’s application for payment of the fee for appealing to be paid by the Respondent refused; the Respondent had acted responsibly and there was no reason why the fee should be paid by it.

Lady Stacey H
[2015] UKEAT 0349 – 14 – 1002
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549356

EAT Redundancy: Collective Consultation and Information – UNFAIR DISMISSAL – Duty to Consult When Proposing to Dismiss Employees as Redundant – Time At Which Obligation Arose – Special Circumstances – Protective Awards – Unfair Dismissal – Procedural Fairness
The Appellant operated a girl’s school. Due to declining pupil numbers, the Appellant decided at a meeting on 27 February 2013 to close the School unless numbers increased. The final decision to close was taken on 25 April 2013 when pupil numbers for the 2013 to 2014 academic year were known. In the particular circumstances of this case, the Tribunal was entitled to conclude that the obligation in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the 1992 Act’) to consult prior to dismissing staff as redundant arose on 27 February 2013. The decision on that date to close the School, unless numbers increased, which was considered to be unlikely, was either a fixed, clear albeit provisional intention to close the School or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date. The Tribunal was entitled to conclude that there were no special circumstances which made it impracticable to consult and that a protective award of 90 days was appropriate given that there had been no consultation and the failure to consult resulted from the reckless failure to consult legal experts on the employment implications of the closure. The fact that the employee had not suffered actual loss was not capable of amounting to a mitigating factor justifying a reduction in the period of a protective award that would otherwise be just and equitable having regard to the seriousness of the employer’s default. The appeal against the protective award would be dismissed.
In relation to the unfair dismissal claim, the Tribunal acted unfairly in dealing with the question of the likelihood of three Claimants being been able to secure a post at another school operated by the Appellant. The three Claimants were permitted at the hearing to adduce evidence on this issue at a time when it was known that the Appellant’s witness was unavailable. The Tribunal, in permitting the evidence to be adduced, expressly recognised the need to ensure that the Appellant would not be prejudiced. In those circumstances, it was unfair for the Tribunal to deal with the question of the likelihood of the three Claimants being able to secure the job without first giving the Appellant the opportunity to adduce evidence. The appeal in relation to the unfair dismissal claim would be allowed to that extent and the question of the likelihood of the three Claimants being able to secure the post remitted to a differently constituted Tribunal.

Lewis J
[2015] UKEAT 0023 – 15 – 1906
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 188
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549359

EAT Practice and Procedure – Disclosure – The exercise by an Employment Judge of her discretion to make a case management order requiring the Claimant to disclose information about her pension entitlements was flawed. The information was clearly relevant to an assessment of the chance that the Claimant would have remained in employment until age 70 as she claimed she would have done had she not been discriminated against, and was not disproportionate to the claim which was put by the Claimant at over andpound;900,000. It had to be remembered that where future loss is concerned the assessment is one of chance, not whether on balance a particular event is more likely to happen than not.

Langstaff P J
[2015] UKEAT 0087 – 15 – 0105
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549358

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal. The claimant was employed as office manager by the respondent. Suspicions arose in the mind of one of the directors of the respondent that the claimant was working elsewhere while claiming to be off sick. An investigation of that and of insubordination by the claimant was carried out and he was dismissed. He appealed and the dismissal was upheld. They ET found the dismissal unfair as the disciplinary process was chaired by the director who had lost faith in the claimant. The appeal did not cure that as it was superficial. The respondent argued that the ET had substituted its own view for that of the respondent.
Held: appeal refused. The ET found that the process was unfair as it was entitled to do.

Stacey HL
[2015] UKEAT 0022 – 14 – 2402
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549116

EAT Jurisdictional Points: Claim In Time and Effective Date of Termination – For a continuing act, the incidents complained of must (following a full merits hearing) be unlawful. The Employment Tribunal fell into error in finding a series of continuing acts which included incidents permissibly found not to be unlawful.
Accordingly the employer’s appeal was allowed and the claims dismissed as time-barred. The Claimant’s perversity cross-appeal was dismissed.

Peter Clark HHJ
[2015] UKEAT 0410 – 14 – 1806
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549119

EAT Unfair Dismissal: Polkey Deduction
An Employment Tribunal held that the question to be decided was whether an employer could have dismissed fairly in the factual circumstances it found established. It repeated this expression three times, without any indication that it understood its role was to decide what the chances of a (fair) dismissal were; and, by the use of other expressions in the text, indicated that there may have been doubt about whether there would have been a fair dismissal. In broad context, there was much to be said on either side (some of which the Employment Tribunal clearly recognised) as to whether there would or would not have been a dismissal of the Claimant. The Employment Tribunal had either fallen into the error of assessing what it thought would happen (or that it was sufficient to establish a 100% deduction that there was a possibility of a fair dismissal) or failed to articulate its reasoning sufficiently clearly.
Other grounds of appeal were dismissed.

Langstaff P J
[2015] UKEAT 0427 – 14 – 2904
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549117

EAT Unfair Dismissal: Reasonableness of Dismissal – Polkey deduction
The Decision of the majority of the Tribunal, that a dismissal by reason of redundancy was unfair because the selection procedure and its application fell within the range of reasonable procedures, is upheld, even though a finding by the majority, that one element of the procedure was devised in bad faith, was perverse and insufficiently reasoned in the Judgment.

Wilkie J
[2015] UKEAT 0447 – 14 – 2804
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549013

EAT Transfer of Undertakings: Service Provision Change – The First Respondent had an organised grouping of employees which worked on a contract for the London Borough of Enfield. The Claimant was one of those employees. On 19 June 2013, the London Borough of Enfield issued an instruction to the First Respondent that the Claimant and others should no longer work on the contract. The First Respondent did not accept that instruction: it wrote to the London Borough of Enfield challenging the instruction. The organised grouping transferred to the Second Respondent on 1 July 2013. The question arose whether the Claimant was assigned to that organised grouping immediately before the transfer. The Employment Judge held that by virtue of the instruction of the London Borough of Enfield, the Claimant was no longer assigned to the organised grouping.
Held: Appeal allowed. It was for the employer, not the London Borough of Enfield, to assign its employees. The Employment Judge had erred in law by failing to consider whether the First Respondent had acted on the instruction. On the facts it was plain that the First Respondent continued to assign the Claimant to the organised grouping of workers immediately before the transfer. Fairhurst Ward Abbotts Ltd v Botes Building [2003] UKEAT/1007/00/DA, [2004] IRLR 304 and Robert Sage Limited T/A Prestige Nursing Care Limited v O’Connell [2014] IRLR 428 considered.

Richardson HHJ
[2015] UKEAT 0432 – 14 – 2204
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549014

[1997] UKEAT 52 – 96 – 1302
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.207256

[1998] UKEAT 780 – 98 – 0112
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.207053

[1999] UKEAT 1235 – 98 – 2701
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.204766