[1996] UKEAT 493 – 95 – 2601
Bailii
England and Wales
Citing:
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 January 2022; Ref: scu.208073

Any ambiguity as to notice of the date of termination is to be strictly construed against the employer.

[1997] UKEAT 295 – 97 – 1112, [1998] ICR 710
Bailii
England and Wales
Cited by:
Cited – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 January 2022; Ref: scu.208062

[1997] UKEAT 928 – 96 – 0512
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.208049

[1997] UKEAT 345 – 97 – 2706
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.207562

[1994] UKEAT 830 – 92 – 0410
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.210207

[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

[1995] UKEAT 14 – 95 – 0211
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.209516

EAT UNFAIR DISMISSAL: Automatically unfair reasons
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
Employment Tribunal decision that employers had, on the facts found, complied with Steps 1 and 2 of the statutory disciplinary procedures. Appeal on the basis of a misdirection as to compliance but viewed as a whole there was held to be no misdirection or other error in the decision as to compliance and rejection of the complaint of automatic unfair dismissal. Appeal dismissed after full hearing.

[2008] UKEAT 0043 – 08 – 1507
Bailii
England and Wales

Employment

Updated: 31 December 2021; Ref: scu.277872

ECJ Judgment – Public service – Staff of the EEAS – Officials – Promotion year 2013 – Decision not to promote the applicant to grade AD 13 – Objection of the applicant to the list of officials proposed for promotion – Article 45 of the Statute – Minimum two years Seniority in grade – Calculation of two years – Date of the promotion decision

F-65/14, [2015] EUECJ F-65/14, ECLI: EU: F: 2015 53
Bailii
European

Employment

Updated: 30 December 2021; Ref: scu.548009

ECJ Judgment – Appeal – Public service – Contract staff – Recruitment – Call for expressions of interest – Minimum Qualifications – Commitment refusal – Violation of Article 116, paragraph 2 of the Rules of Procedure of the Civil Service – Error law – Distortion of the facts

T-556/14, [2015] EUECJ T-556/14
Bailii
European

Employment

Updated: 30 December 2021; Ref: scu.547703

EAT Unfair Dismissal: Compensation
The Claimant was a teacher who had realistically entertained high hopes of promotion to a Headship, but who as a result of the behaviour of the Respondent Education Authority and School Governors towards her would never now work again as a teacher. She appealed that an award of compensation to her was ‘grossed up’ from an intended net figure to allow for the impact of taxation on the overall award not by asking what sum it was necessary to pay to her such that after it had been taxed the net figure would remain, but instead by asking what tax was payable on a sum equal to the net figure, and paying her that sum in addition to the net, all of which would then be subject to tax. The result of the latter approach (which the Employment Tribunal adopted) was erroneously to lower the sum payable to the Claimant to a level below that of the net the Employment Tribunal had decided she should be entitled. The appeal was allowed: the wrong approach had been adopted.
At the same time, a Preliminary Hearing was held in an appeal by the Respondents, raising a number of complaints about the assessment of the award at both an adjourned Review Hearing and a subsequent hearing held to reconsider aspects of the compensation awarded at the Review Hearing. All complaints were rejected, except for two, which were thought arguable at a Full Hearing of the Appeal Tribunal: the Respondents’ argument that to assess the chance of the Claimant becoming a Head at 100% was manifestly excessive, and clearly took no proper account of the chances, and that the multiplier used in assessing the sum by way of pension already accrued in service by the Claimant was too high, since the Employment Tribunal had wrongly assumed that it would have been payable for the first time at age 65, whereas it was payable without reduction from the age of 60.

Langstaff P J
[2015] UKEAT 0257 – 14 – 1002
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547609

EAT Practice and Procedure: Costs – Wasted costs
A Schedule of Loss was served which grossly over-inflated the losses claimed. In pre-trial negotiations, the Claimant and Respondents narrowed their differences, but although the Respondents were prepared to pay a sum which appeared to the Employment Tribunal to be overly generous, the Claimant wanted more than double that sum, and thereafter the claim proceeded to a hearing at which the Claimant lost. The Tribunal ordered that he pay a sum by way of costs (just short of andpound;5,000), and then pursued his solicitors for wasted costs for having advanced such a misleading and inflated schedule and for their client’s refusal to settle for a reasonable sum. They were constrained by legal professional privilege from revealing their instructions from and advice to the Claimant. The Judge nonetheless determined the case without any sufficient indication that she was applying the principles set out in the leading House of Lords authority of Medcalf v Weatherill, as applicable in these circumstances, and speculated impermissibly as to whether the solicitors had given misleading advice to the Claimant when this was not the only realistic possibility, thereby failing to apply the ‘benefit of doubt’ principle appropriately: a Tribunal has to be satisfied not that on balance there is doubt which favours the professional lawyer concerned, but that there is no room at all for doubt.
On the separate question of costs claimed by the successful Appellants under Rule 34A(2A) an award of andpound;400 was made, the further fee of andpound;1,200 payable on permission being granted to proceed to a Full Hearing having been unnecessary: given the position the parties were then taking as to compromise, the appeal should not have proceeded further.

Langstaff P J
[2015] UKEAT 0356 – 14 – 1504
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547612

Unfair Dismissal: Constructive Dismissal – Contributory fault
The Employment Judge found that the Claimant had been unfairly constructively dismissed by the Respondent employers but that his compensatory award should be reduced by 30% under section 123(6) of the Employment Rights Act 1996. The employers appealed against the finding of constructive dismissal and he cross-appealed against the 30% reduction. Appeal and cross-appeal allowed.
On the appeal, the Employment Judge failed properly to analyse the Claimant’s case that the employers’ course of conduct amounted to a repudiatory breach of the implied term as to trust and confidence or to remind herself of the law relating to such a case and failed to make a clear finding that a breach of that term had caused the Claimant to resign.
On the cross-appeal, it inevitably followed from the finding on the appeal that it should be allowed, but in any event the Employment Judge failed to remind herself that any conduct relied on under section 123(6) had to be blameworthy or culpable.

Shanks HHJ
[2015] UKEAT 0179 – 14 – 0902
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547611

EAT Unfair Dismissal – Compensation
Whether the Claimant was obliged to report allegations of misconduct made against him under implied term of the contract or employment; if not, whether express terms of the contract required him to do so – no. Submissions on the Claimant’s loss upheld.

Mitting J
[2015] UKEAT 0343 – 14 – 2702
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547608

EAT Transfer of Undertakings – Transfer
A council contracted with a company to manage one of its properties, including an associated car park. The company sub-contracted the operation of the car park to a sub-contractor. The Claimant claimed to have been employed by the sub-contractor.
The main contract ended. The council took the management of the site and associated car parking in-house.
The Claimant contended that TUPE operated to make him an employee of the council.
The Employment Judge struck out the claim on the basis that, on the pleaded case, the council had never been the client of the sub-contractor.
TUPE Regulation 3(1)(b) refers to the ‘client’.
The Claimant appealed. Appeal allowed and a remitted to the Employment Judge to determine, on the facts, whether the council was a client of the sub-contractor.
TUPE Regulation 2(1) and Horizon Security Services Ltd v Ndeze UKEAT/0071/14/JOJ (19 May 2014) considered.

Luba QC Rec
[2015] UKEAT 0157 – 14 – 2302
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547610

Appeal by respondent against order allowing extension of time for lodging of aopeal when the appeal was only ten minutes out of time.
Held: The delay had been caused by an unusual combination of circumstances including an unforseen internet outage: ‘ I do not therefore think that this is one of those cases, of which there are too many, where the parties deliberately let time pass without doing anything, or wake up only at the last moment to the approach of the time limit but, rather, one where they did their best to comply and were defeated late, but not very late in the day, by circumstances beyond their control. ‘

Langstaff P J
[2015] UKEAT 0896 – 14 – 3103
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547130

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Procedural irregularity/fair hearing
Allowing the appeal on this basis. On the Second Respondent’s application for wasted costs against the Appellant, the Employment Tribunal (‘ET’) hearing had ended with a lack of certainty as to how matters were to proceed in terms of evidence as to means (which potentially went both to the question whether any award should be made and as to the amount of such an award if made). It having been accepted that the Appellant was entitled to be afforded the further opportunity to adduce such evidence, the Appellant had not unreasonably understood that the ET would give further directions for the submission of that evidence in due course, if it considered its wasted costs jurisdiction had been engaged. Subsequently, no written record as to how things had been left was sent out to the parties. The different records available to the Employment Appeal Tribunal (‘EAT’) served only to confirm the potential ambiguity as to how things had been left. Thereafter, one of the ET lay members had died and the further directions that were required seemed to have been forgotten as a result. This had meant that the Appellant had been denied the opportunity to submit further evidence on a matter that was relevant to the ET’s ultimate decision to award wasted costs against it. The award was thus rendered unsafe and the matter would be remitted for consideration afresh.
Apparent Bias
There had been a number of errors in the ET proceedings (including the irregularity described above). The Appellant argued that these had to be seen in the light of the Employment Judge’s gratuitous disclosure of irrelevant information in the appeal proceedings, apparently designed to prejudice the Appellant in the EAT’s eyes. This was a slipping of the mask and, although occurring some time after any relevant decision, this would cause the informed, fair-minded observer to conclude there was a real risk of bias undermining the ET decision in issue.
Refusing the appeal on this basis. While a number of unfortunate difficulties had arisen during the course of the ET proceedings, none gave rise to anything that would cause the informed, fair-minded observer to conclude there was a real possibility of bias. The Employment Judge’s response to the EAT did not change that position. It was plainly some time after the relevant decisions and provided in a context which allowed a different explanation. No issue of relevant bias arose relevant to the decision in issue in the appeal.
Disposal
The Employment Judge’s response in the appeal proceedings was, however, relevant to the question of remission. It meant that the Appellant had lost confidence in obtaining a fair hearing before this ET. The matter should be remitted to an entirely fresh ET for re-hearing.

Eady QC HHJ
[2015] UKEAT 0382 – 14 – 2003
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547129

EAT TRANSFER OF UNDERTAKINGS
TRANSFER OF UNDERTAKINGS – Objection to Transfer
PRACTICE AND PROCEDURE
PRACTICE AND PROCEDURE – Striking out/Dismissal
An employee whose disabilities were such that she worked 8.5 hours per week for her employer was part of a service which was to be taken over by NHS Direct NHS Trust (now known as South Central Ambulance Service NHS Foundation Trust). In advance of the transfer, NHS Direct let it be known that its employees worked a minimum of 15 hours weekly. She requested that this be adjusted for her case, to a minimum of 10. When this was rejected, she decided to object to her employment transferring, and she remained in the service of her current employers, albeit on reduced terms as to hours and pay. She claimed that NHS Direct had discriminated against her. To do so, she had to come within the class of those who could claim, as set out in s.39 Equality Act 2010 (‘EqA’). An EJ’s decision that she was an ‘applicant’ for a job within the meaning of that section, notwithstanding that she was guaranteed a continuation of her own contract under TUPE, was appealed. Following a review of the documents upon which this decision had been based, but after initial argument on the appeal had concluded, the parties were recalled for further argument, to the effect that what had occurred was that NHS Direct contemplated ceasing work at the place where the Claimant had been employed, thereby creating a potential redundancy situation, in which it was appropriate to write to her (as NHS Direct did) to offer suitable alternative employment. Leave was given to advance this argument. On this basis, the Judge was plainly right in the conclusion to which she came, and the appeal was dismissed.

Langstaff P J
[2015] UKEAT 0128 – 14 – 1405
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547132

‘This claim challenges the legality of, and seeks to set aside, certain arrangements that were made by Granada in August 2000, shortly after its merger with Compass Group Plc, to secure the payment of supplementary retirement and death benefits to Granada’s executive directors, then five in number.’

Andrews J DBE
[2015] EWHC 1499 (Ch)
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547084

Secondary judgment on challenge to pay cap placed by the defendant on the employment of the claimant.

Warren J
[2015] EWHC 1368 (Ch)
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546843

The claimant teachers had been involved in a day’s strike action They objected that the employer had deducted 1/260 and not 1/365 of their annual salary.
Held: Section 2 of the 1870 Act did apply to a teacher’s contract, and the employee’s appeal failed.

Elias, Tomlinson, Sales LJJ
[2015] EWCA Civ 455, [2015] WLR(D) 216, UKSC 2015/0142, [2015] ICR 1143, [2015] IRLR 650, [2015] ELR 513
Bailii, WLRD, SC, SC Summary, SC 20170201amVideo, SC 20170201pm Video
Apportionment Act 1870 2
England and Wales
Citing:
Applied – Amey v Peter Symonds College QBD 2013
The claimant was a full time teacher at a sixth form college who went on strike. He participated in two days of industrial action. He argued that the College acted unlawfully in deducting 1/260 of his salary rather than 1/365 for each day on strike. . .
Cited – Sim v Rotherham Metropolitan Borough Council 1981
The 1870 Act applied where an employee’s contract was terminated in the course of a period at the end of which payment would be made. Scott J said: ‘Mr Goudie submitted that the real question was whether a teacher was entitled to be paid for the . .

Cited by:
Appeal from – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 December 2021; Ref: scu.546827

EAT Victimisation Discrimination: Whistleblowing – VICTIMISATION DISCRIMINATION – Detriment – VICTIMISATION DISCRIMINATION – Dismissal – UNFAIR DISMISSAL – Constructive dismissal – Although the Employment Tribunal found that the Claimant made a protected disclosure in good faith, it found:
(i) That many of the alleged detriments were not established as a matter of fact; and/or
(ii) That the Respondent was not vicariously liable for conduct of its employees in response to the protected disclosure: Fecitt v NHS Manchester [2012] IRLR 64; and in any event
(iii) That none of the Respondent’s treatment of him thereafter was on the grounds of or by reason of the disclosure, and was for properly separable and genuinely different reasons. For example, in relation to the principal detriment relied on (the disclosure of his statement to another employee who was to be disciplined on the basis of it) the Employment Tribunal found that this was done because the Respondent’s long-standing and well established disciplinary policy and practice required the witness statement relied on to support the allegation of misconduct to be disclosed to the employee facing misconduct charges; and there was nothing to alert the Respondent to any adverse reaction or threats by the disciplined employee on such disclosure.
These were all findings and conclusions amply supported by the evidence and not arguably in error of law.

Simler J
[2015] UKEAT 0394 – 14 – 1203
Bailii
England and Wales
Citing:
Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 December 2021; Ref: scu.546506

EAT Jurisdictional Points: Extension of Time: Reasonably Practicable – PRACTICE AND PROCEDURE – Time for appealing
The Claimant submitted a claim form, fee, and application for remission to an Employment Tribunal office four days before time expired. It was returned to her as rejected, mis-addressed by omission of her house number, at a time when it could not be re-submitted without being out of time, though the Claimant submitted it at the first opportunity. The Judge inferred from her evidence and the material before him that she had not fully entered the ACAS conciliation number she had been given on her application form, and that the Employment Tribunal had been obliged by Rule 10(1)(c)(i) of the Employment Tribunal Rules to reject it. No argument was made that it had not been reasonably practicable to submit the claim on time. An appeal on grounds that the Employment Judge should not have drawn the inference he did, and that he had failed to hold it not reasonably practicable to submit the claim in time, was rejected – the former was a permissible conclusion, the second had not been argued before him but in any event he also dealt with the question and concluded that the reason for being out of time was the failure of the Claimant to record the ACAS number fully and correctly, a conclusion he was entitled to reach.

Langstaff P J
[2015] UKEAT 0439 – 14 – 1802
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546502

EAT Unfair Dismissal: Polkey Deduction – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
PRACTICE AND PROCEDURE – New evidence on appeal
Having upheld the Claimant’s claims of unfair dismissal and disability discrimination, the Employment Tribunal concluded that no compensatory award for loss of earnings on a Polkey basis (the Claimant would have been fairly dismissed in any event, without suffering any loss of earnings). The issue on appeal was whether the Employment Tribunal reached that conclusion on the basis of inaccurate medical evidence and/or an erroneous assumption as to when the Claimant had made an application for ill-health retirement.
Held: dismissing the appeal, initially it had seemed that the Claimant’s case on the medical evidence was a ‘new evidence’ point. If so, having seen the material that had been before the Employment Tribunal, the point did not meet the tests laid down in Ladd v Marshall [1954] 1 WLR 1489 CA. The substance of the point was before the Employment Tribunal and the additional material could have made no difference to its conclusions. To the extent the Claimant’s argument was now that the Employment Tribunal should not have accepted the evidence of the Respondent’s medical expert, that was not how her case was put below and it could not succeed: the expertise of the Respondent’s witness could not be challenged and she had expressed a reasoned opinion which the Employment Tribunal had been entitled to accept. The Employment Tribunal’s conclusion was not perverse and there was no proper basis on which the Claimant could challenge it.
As for the date of the Claimant’s ill-health retirement application, even if the Employment Tribunal erroneously characterised an expression of interest as an application and had wrongly stated that this had been before the hearing of the appeal rather than the communication of the outcome, none of that vitiated its conclusion. This was simply one of many factors the Employment Tribunal took into account in concluding that the Claimant would not have returned to work and the chronological error did not undermine the substance: the expression of interest in ill-health early retirement before knowing the outcome of the appeal was a relevant part of the evidence to which the Employment Tribunal was entitled to make reference.

Eady QC HHJ
[2015] UKEAT 0361 – 14 – 1603
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546504

EAT Practice and Procedure – Claim of unfair dismissal (among other claims) where allegations of serious sexual assaults had been made which were not directly in issue in the proceedings but would be canvassed in evidence. The Judge made an order that the Claimant’s identity should be anonymised throughout the hearing under Rule 50. After promulgation of the substantive judgment (also anonymised) the Judge ordered permanent anonymity and the BBC appealed.
The appeal was allowed. The Judge erred in law in making the order. He failed to carry out a proper balancing exercise or to take account of relevant considerations in doing so, and relied on an invalid reason for granting the order, namely the risk of public misunderstanding that the allegations had not been investigated or proven and the devastating consequences for the Claimant that would flow from that.
Once the only factor relied on by the Judge as outweighing the principle of open justice and freedom of expression was disregarded as invalid, there was no rational basis for anonymity and no reason to remit the matter to the Judge. On the facts of this case, anonymity would constitute a disproportionate and unlawful interference with the paramount principle of open justice and the strong public interest in full publication.

Simler J
[2015] UKEAT 0385 – 14 – 1205
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546507

EAT Sex Discrimination: Injury To Feelings – The Employment Tribunal assessed the Claimant’s compensation for injury to feelings for pregnancy discrimination at andpound;12,000.
It appeared that the Employment Tribunal taken into account JSB Guidelines which they had misquoted and the award seemed excessive even by reference to the guidelines as the Employment Tribunal understood them to be.
The award was therefore set aside. The parties agreed that the Employment Appeal Tribunal should re-assess the compensation; the correct figure, in the Employment Appeal Tribunal’s view, was andpound;9,000.

Shanks HHJ
[2015] UKEAT 0360 – 14 – 1902
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546501

EAT Victimisation Discrimination: Whistleblowing – UNFAIR DISMISSAL – Automatically unfair reasons
The Claimant was an employee of the Respondent and had at one time been an elected shop steward and health and safety representative.
He received a concern from a work colleague that his line manager had emailed a large number of documents to her home (‘hundreds’) which he believed contained confidential or personal data about himself and her personal email was not part of a secure system nor encrypted. The Claimant considered that this was a significant breach of the Data Protection Act 1998.
He did not report the matter to his line managers but reported his concerns to the Information Commissioner’s Office (‘ICO’), and thereafter to his line managers. Having consulted the ICO website, he telephoned the advice line to clarify his understanding of the Data Protection Act. The information he provided was wholly inaccurate. The manager had emailed 11 documents to her home email which was password protected. None of the documents were regarded as inappropriate for her to have sent.
Having established that the Claimant had referred the matter to the ICO without first referring it to his line manager, the Claimant was informed that he should have referred the matter to his line managers before raising concerns with the ICO, and was specifically instructed not to contact the ICO or other external bodies in relation to the matter without the prior authority of his line manager. He was told that the Respondent would investigate the concerns promptly, as it did.
The Claimant took it upon himself to telephone the ICO to seek advice as to what he should do about the instruction. The Respondent regarded the Claimant’s action in contacting the ICO despite having been instructed not to do so as a serious breach of duty and he was summarily dismissed. He was at the time subject to a final written warning in relation to an unrelated matter and also found to have committed gross misconduct by writing an inappropriate letter in the course of his duties, as a tenancy relations officer, to a member of the public.
The Claimant claimed that he had been unfairly dismissed for whistleblowing and relied on the original communication with the ICO and the subsequent telephone call as protected communications.
The Employment Tribunal found that the original referral was a qualifying disclosure but not a protected disclosure because the Employment Tribunal did not consider that the Claimant held the requisite reasonable belief that the information he disclosed tended to show that the Respondent had failed, or was failing, to comply with its obligations under the Data Protection Act. The subsequent telephone call was not a qualifying disclosure because there was no disclosure of information.
The Employment Tribunal considered that the two disclosures had to be considered separately. On appeal the Respondent sought to argue that the two disclosures could be aggregated so that together they constituted a protected disclosure. On appeal the Claimant sought to argue that the instruction not to contact the ICO was unlawful, contrary to public policy and a breach of Article 10 of the European Court of Human Rights (the illegality point).
The Employment Appeal Tribunal following Bolton School v Evans [2007] ICR 641 held that the telephone call could not be treated as part of the original referral and could not on its own constitute a qualifying disclosure in the absence of disclosure of ‘information’. The illegality point had not been argued below and the Employment Appeal Tribunal, following the authority of Kumchyk v Derby City Council [1978] ICR 1116, declined to entertain the point; but had it done so, it would have rejected the illegality point on the facts as found by the Employment Tribunal and because the Employment Tribunal was satisfied that there was a reasonable basis for the belief by the dismissing officers that the instruction not to contact the ICO was legitimate and reasonable, there were reasonable grounds for the belief that the Claimant had breached a legitimate and reasonable instruction.
Appeal dismissed.

Serota QC HHJ
[2015] UKEAT 0041 – 14 – 0105
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546435

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason
PRACTICE AND PROCEDURE – Appellate jurisdiction / reasons / Burns-Barke
The Appellant was employed as a bus driver by the First Respondent. Her driving was considered to be below an acceptable standard and she was instructed to arrange to have a driving assessment at the First Respondent’s in-house training centre. She repeatedly refused to comply with the instruction and was dismissed for gross misconduct. She appealed against her dismissal. The appeal hearing was adjourned in order for her to attend the training centre. Ultimately she did attend and was required to attend corrective training. Following the corrective training she took an assessment, which she failed. The appeal was reconvened. The only reason that appeared to have been given for the dismissal of the appeal was that she failed to display a satisfactory driving standard and that her dismissal was in the interest of public safety.
The Employment Tribunal dismissed her claim for unfair dismissal on the ground that she repeatedly refused to attend the training school and that the penalty of dismissal lay within the band of reasonable responses a reasonable employer might have adopted.
The Employment Appeal Tribunal allowed her appeal and remitted the case to the Employment Tribunal on the ground that the Employment Tribunal erred in failing to make proper findings as to: (1) the reason(s) for the dismissal of the appeal, and (2) the reason(s) for and reasonableness of the Appellant’s dismissal by reference to that or those reasons.

Supperstone J
[2015] UKEAT 0434 – 14 – 1703
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546433

EAT Practice and Procedure: Preliminary Issues – A peripatetic employee, who was Danish and had his home in Switzerland, freely entered into a contract with the First Respondent, a company incorporated in Bermuda, by which he was to occupy an international role, based in Switzerland, as its Strategy and Business Development Director. The contract was governed by Bermudian law and provided that the courts of Bermuda should have jurisdiction. Before doing so he had first considered but rejected a contract which provided for him to work in England, in a contract governed by UK law. He ensured that he never spent so many days in the UK as to be subject to UK taxation, and though whilst working in the UK (which he did for longer than in any other single jurisdiction) he stayed in accommodation in Esher, he arranged for it to be contracted for by a family company rather than in his own name. He was dismissed (he said as the result of making a public interest disclosure) in England, and was told of his dismissal by an employee of the Second Respondent. The ET held his employment was not sufficiently closely connected with the UK and UK law for him to be able to claim; that in any event the UK courts did not have jurisdiction on the proper application of the Brussels Regulation, and that the Rome Convention did not have the effect that the applicable law was that of the UK.
On appeal, the Claimant withdrew a ground alleging that the ET erred in failing to hold him an employee of the Second Respondent. He asserted that the ET had reached a perverse decision, as to the base from which he operated, and as to the conclusion that his employment was not sufficiently closely connected with the UK and UK law. This was rejected: it was not perverse. For the same reason, the challenge to the conclusion based on the Rome Convention had to fail (though under the Rome Regulation, as the applicable instrument, rather than the Convention),. Though the judge had failed to pay regard to an amendment of the ET1 when holding that The Brussels Regulation did not confer jurisdiction, her decision was plainly and obviously right on other grounds, since she was wrong to hold that the Second Respondent was an agent of the First, within the meaning of the Regulation: from the facts she found, the only permissible conclusion was to the contrary. The appeal was dismissed.

Langstaff P J
[2015] UKEAT 0345 – 14 – 2804
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546434

EAT Practice and Procedure: Striking-Out/Dismissal – Bias, misconduct and procedural irregularity
The Claimant, who had a long history of mental illness, issued her claim for unfair constructive dismissal (some six years from the date her employment ended). The grounds of claim were poorly drafted but it was possible to spell out claims of unfair dismissal and for compensation. The ET1 did, however, contain an inadmissible claim for compensation for loss suffered by the Claimant’s mother. The Claimant was sent a letter of rejection of the claim, pursuant to the Employment Tribunal Rule 12 which requires an Employment Judge in appropriate circumstances to reject a claim form if it is one that the Employment Tribunal has no jurisdiction to consider, or is in a form that cannot sensibly be responded to, or is otherwise an abuse of the process. The Employment Judge rejected the claim on the grounds that it was an abuse of process; the reasons given were that the claim was:
(i) brought outside of time limits,
(ii) the remedies sought did not appear to be those the Tribunal can award,
(iii) the Claimant did not appear to be claiming unfair dismissal.
The Employment Appeal Tribunal considered that the Employment Judge was wrong in relation to grounds (ii) and (iii).
Insofar as ground (i) was concerned, an ET1 issued out of time is not necessarily an abuse of process, as the Employment Tribunal has jurisdiction to extend time in cases of unfair dismissal if satisfied it was not reasonably practicable to lodge the claim in time.
There was sufficient material to put the Employment Tribunal on notice that the Claimant, by reason of her mental health, may have been unable to present her claim at an earlier date. Had enquiries been made, the Employment Judge would have learned that a consultant psychiatrist considered that for the last six years the Claimant had not been well enough to pursue a legal case.
A decision under Rule 12 should be reserved for plain and obvious cases and the Employment Judge should also have had regard to the Claimant’s disability. In cases where there may be an element of doubt, the Employment Tribunal should proceed by way of Rule 27 which permits a Claimant to make representation before the claim is dismissed for lack of jurisdiction or because it has no reasonable prospect of success.

Serota QC HHJ
[2015] UKEAT 0296 – 14 – 0605
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546436

EAT Unfair Dismissal – Polkey deduction
The two Claimants were dismissed unfairly because their employer thought that whilst directors, and later (after they had resigned as directors) they had colluded with a third party to help set up a company trading in meaningful competition to the employer. 15% contribution from one employee (‘E’) was awarded, but none from the other (‘C’). On appeal, a contention that the Employment Tribunal had wrongly failed to consider evidence that when directors E and C had failed to tell their employer that a competitor was about to be established (in breach of the fiduciary duty derived from the Companies Act 2006 and from caselaw which obliged this) was rejected: on a careful reading of the Judgment as a whole, the Employment Tribunal had considered that the Claimants did not know that the rival business would in fact be in meaningful competition with the employer, and on this finding there was no breach of duty such as to affect contributory fault. In any event, the case-law was relied on for one sentence, which had to be taken both in context and with a recognition that every case turned on its own particular facts.
A second ground was that the Employment Tribunal thought it did not have enough material to decide whether there should be a deduction from damages for the chance that E would have been fairly dismissed within his period of notice (which he had already given), but went on to find as a fact that he was guilty of misconduct, and could have been summarily dismissed for that. These two findings were on the face of them inconsistent and irreconcilable. It was almost inevitable that there would be at least some risk of a fair dismissal if E’s employment had continued long enough. The case would be remitted to the Employment Tribunal to determine the question of whether a Polkey deduction was appropriate, and if so to what extent, on the footing it did have enough evidence to think that E could have been summarily dismissed and that at the date of actual (unfair) dismissal his employer probably knew enough of the relevant facts to take steps to do so.

Langstaff P J
[2015] UKEAT 0416 – 14 – 0303
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546432

EAT Working Time Regulations – TRADE UNION RIGHTS – Action short of dismissal
Working Time Regulations 1998 (‘WTR’) Regulation 2(1)(a) and (c) – ‘working time’
Trade Union and Labour Relations (Consolidation) Act 1992 section 146 – detriment
The Employment Tribunal having dismissed the Claimants’ claims of breach of the WTR and of detriment, the following questions arose on the appeal:
(1) When attending meetings at their workplace in their capacity as a representative of a recognised trade union or health and safety representative, were the Claimants working, at their employer’s disposal and carrying out their employer’s activities or duties? Alternatively,
(2) Did the time spent at such meetings fall to be treated as working time by virtue of the provisions of the recognition agreement between the trade union and the Respondent in this case? In any event,
(3) Were the Claimants subjected to a detriment when the Respondent refused to grant them a daily rest period of at least 11 hours between the end of those meetings and the beginning of their night shifts?
Held: WTR Regulation 2(1)(a) requires that each of the three elements it sets out must be satisfied for time to be ‘working time’ (applying South Holland District Council v Stamp [2003] UKEAT/1097/02), so: the worker must be working and at the employer’s disposal and carrying out his activities or duties. That said, it was appropriate to have regard to the aims of the Working Time Directive 2003/88/EC and the purposive approach to working time adopted by the European Court of Justice.
The Employment Tribunal had found that the Claimants had been ‘working’ when attending at the meetings in question (following Davies v Neath Port Talbot County Borough Council [1999] ICR 1132 EAT). It had, however, erred in adopting an unduly restrictive approach to the question whether the Appellants were at their ’employer’s disposal’. That did not require the Claimants to be under the employer’s specific control and direction in terms of the carrying out of their activities or duties at those meetings but allowed for a broader approach; where an employer has required an employee to be in a specific place and to hold him/herself out as ready to work for the employer’s benefit (which might include attending at trade union or health and safety meetings; allowing for a broad understanding of ‘benefit’, see Davies) that might be sufficient.
The Employment Tribunal similarly erred in adopting an overly narrow, contractual approach to the requirement that the worker is ‘carrying out his activity or duties’. There was no requirement that the activity or duties were solely those for which the Claimants were employed under their contracts of employment. If engaged in activities that were (in the broader sense, see Davies) for the benefit of the employer, arose from the employment relationship, and done with the employer’s knowledge, at and in an approved time and manner, that could be sufficient.
Given those conclusions under Regulation 2(1)(a) WTR, it was unnecessary to reach any concluded view on the other two questions arising on the appeal.
The parties being unable to agree as to the factual basis of the case before the Employment Tribunal, this matter would be remitted to the same Employment Tribunal for reconsideration in the light of the Judgment of the Employment Appeal Tribunal.

Eady QC J
[2015] UKEAT 0367 – 14 – 2302
Bailii
Working Time Regulations 1998 2(1)(a)
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546426

EAT Practice and Procedure – Striking out/dismissal
The Claimant made completely unspecific allegations of discrimination in her ET1. The Employment Tribunal ordered there be a Preliminary Hearing to discover what she was really alleging. 30 minutes before the hearing she asked for a postponement, since she had had a panic attack. It was granted, but it was ordered that she clarify her allegations by setting out, in chronological order, what acts she was actually complaining about as being discriminatory. She did not do so by the date set. A second Preliminary Hearing, shortly thereafter, was also postponed because she phoned in 2 minutes before it was due to start to say she had suffered a panic attack. The same order for particulars was repeated, but now as an ‘Unless’ order. It was not complied with, though some days later the Claimant did provide 38 pages of material. Her application under Rule 38 Employment Tribunal Rules of Procedure 2013 for relief from the automatic strike-out following non-compliance was refused, the Judge thinking that the new material did not assist – indeed, it made matters more difficult: a view that was not challenged on appeal. He thought that without particularisation a hearing could not go ahead: a further Preliminary Hearing would be needed: and the history was such that, in the absence of clear medical evidence showing that panic attacks/illness would not recur when a hearing was imminent, there was a real risk that a Preliminary Hearing would not be effective. In all the circumstances, it was not appropriate to grant relief.
Held: In so deciding, the Judge had not been shown to have erred in law.

Langstaff P J
[2015] UKEAT 0369 – 14 – 2402
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546427

EAT Jurisdictional Points: Extension of Time: Just and Equitable – Having concluded that it was not possible to determine whether the Claimant’s claims (of disability discrimination by reason of a failure to make reasonable adjustments) were brought out of time without hearing all the evidence (and, thus, would need to be considered at a Full Merits Hearing), the Employment Tribunal nonetheless went on to find that it would be just and equitable to extend time to permit the claims to be brought out of time in any event. Although it was questionable whether the ET had made clear that it was proceeding on assumed facts as to when the primary time limit expired (the first factor laid down in the guidance laid down in British Coal Corporation v Keeble [1997] IRLR 336), that might be inferred from the recitation of the Respondent’s case in this regard. The real issue was the ET’s approach to the Claimant’s explanation. The relevant questions were those proposed by Langstaff P in ABM University Local Health Board v Morgan UKEAT/ 0305/13/LA, at paragraph 52: (1) why was it that the primary time limit had been missed? (2) Why after expiry of the primary time limit was the claim not brought sooner than it was?
Having found that the Claimant had not provided an explanation, the ET’s reasoning was based upon assumptions made in the Claimant’s favour. Given that he bore the burden of proof on these questions, and the ET had expressly not made findings of fact (presumably not wishing to touch on matters that might fall to be determined at the Full Merits Hearing), this was not a permissible approach and the Judgment that it was just and equitable to extend time was thereby rendered unsafe.
Given the ET had held it was not possible to determine whether the claim had been brought out of time (and there had been no appeal against that conclusion) and the difficulty of then making findings on the questions that arose in respect of the ET’s discretion to extend time, the appropriate course was for this point to be remitted for consideration at the Full Merits Hearing.

Eady QC HHJ
[2015] UKEAT 0348 – 14 – 0203
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546429

EAT Practice and Procedure: Costs – Appeal against order for payment of andpound;99 in respect of time spent by the respondent in preparing for a hearing about a postponement, required by the claimant because his witness did not attend. Held that the EJ did not err in law in making the order. She explained in sufficient detail that the hearing was needed because the claimant had failed without excuse to arrange for the presence of the witness. Appeal dismissed.

Hon Lady Stacey
[2015] UKEAT 0023 – 14 – 2702
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546424

EAT Unlawful Deduction From Wages – NATIONAL MINIMUM WAGE
UNFAIR DISMISSAL – Compensation
Appeal against the Employment Tribunal’s refusal of reconsideration application. Two points arose: (1) whether the ET had adopted the correct approach to the claims of unlawful deductions from wages, given statutory provision permitting such a deduction for living accommodation (National Minimum Wage Regulations 1999); and (2) whether, in making no deduction for tax and National Insurance liability, the ET had erred in its approach to calculating the compensatory award in respect of Mr Singh’s unfair dismissal claim.
The ET had refused the application for reconsideration on either ground. It had reasoned: (1) the issue of a deduction pursuant to a statutory provision had not been taken at the original hearing, and (2) Mr Singh’s pay had not been subject to deductions for tax and National Insurance during his employment so his compensatory award should be gross rather than net.

Eady QC HHJ
[2015] UKEAT 0383 – 14 – 2702
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546425

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
PRACTICE AND PROCEDURE
UNFAIR DISMISSAL
Victimisation; Point not pleaded; Procedure; Unfair dismissal
On the evidence, an Employment Tribunal found that a decision by the General Secretary of a trade union to offer the Claimant the choice of reaching a compromise agreement to leave her post or face discipline was reached because a week earlier she had informally complained of his sexual harassment of her, and he was concerned she might make the complaint formal.
The Claimant claimed that offering her this disadvantageous choice was victimisation, but did so on the basis it was in response to a grievance made one month earlier. She made no claim it was in response to any complaint about his harassment of her the week before, denying that she had complained, or that his action was responsive to a fear of future complaint. Nor, in her ET1, Amended Grounds of Claim, list of issues, witness statement and opening to the Employment Tribunal did she raise any suggestion that it was. Making such a complaint was not set out as one of the protected acts on which she relied. Nor was the General Secretary cross-examined on this basis. Then, in closing submissions her counsel raised for the first time that the choice was offered, because of protected acts, they being her informal complaints. No application was made either to amend the claim to plead this or recall the General Secretary for further cross-examination.
The Employment Tribunal held that it had no jurisdiction to consider the complaint, applying Chapman v Simon. A second ground argued that the Employment Tribunal was perverse to hold the subsequent dismissal of Claimant not unfair, since the process had been put in train by the General Secretary having a concern for his own position and to cover up his harassment of the Claimant.
The appeal was dismissed; the Employment Tribunal correctly applied Chapman, and in fact took the conduct of General Secretary at the outset into account when assessing the overall fairness of the dismissal. It did not apply too narrow a focus. A claim for costs by Respondent on the basis the appeal was misconceived was rejected.

Langstaff P J
[2015] UKEAT 0387 – 14 – 0403
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.546430

[1997] UKEAT 186 – 97 – 0112
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.208060

[1996] UKEAT 711 – 95 – 1501
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.208119

[1997] UKEAT 1066 – 97 – 0312
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.208052

[1994] UKEAT 421 – 94A – 2211
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.210253

[1997] UKEAT 1186 – 97 – 0212
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.208067

[1996] UKEAT 1061 – 94 – 1201
Bailii
England and Wales
Cited by:
See Also – Cornelius v London Borough of Hackney EAT 3-Dec-1996
. .
See Also – Cornelius v Hackney London Borough Council CA 25-Jul-2002
The applicant sought damages from the council for misfeasance in public office. Protracted litigation had followed his dismissal after he had attempted to bring allegations of misconduct within the authority to the attention of a council committee. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 December 2021; Ref: scu.208080

[1997] UKEAT 1263 – 97 – 0212
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.208051

[1996] UKEAT 41 – 95 – 1701
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.208074

EAT Contract of Employment – Definition of employee

His Honour Judge McMullen QC
[2004] UKEAT 0150 – 04 – 2109, UKEAT/0150/04
Bailii, EAT
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.219233

[1995] UKEAT 1017 – 94 – 0211
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.209462

The employment tribunal erred in law in striking out the claims of disability discrimination and unfair dismissal.

[2021] UKEAT 2019-001204
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.669832

PRACTICE AND PROCEDURE – Bias, misconduct, procedural irregularity.
On the third day of a difficult Full Hearing and after a number of applications by the Claimant’s counsel had been refused, correctly, by the Tribunal, an adjournment was granted so that the decisions could be explained to the Claimant. Thereafter counsel made further application for an adjournment for the purpose of filing an appeal to the Employment Appeal Tribunal. The Employment Judge mis-heard counsel and thought that the Tribunal had been misled as to the reason for the earlier adjournment. However, when conveying to counsel that there was no need to mislead the Tribunal as no offence would have been taken had leave to appeal been sought, the Judge used inappropriate and intemperate language, including the word ‘lie’. The Claimant contended that this had raised a real possibility of apparent bias.
Held: In the particular circumstances, the fair minded informed observer would conclude that the Judge’s remark, while intemperate and inappropriate, did not raise any general or real possibility of the appearance of bias. The case did not involve the kind of incidental remarks and unwarranted injections of sarcasm that had been the feature of the successful apparent bias claim in El Faragy v El Faragy and Ors [2007] EWCA Civ 1149.

[2018] UKEAT 0252 – 16 – 2509
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.632225

The University needed to reduce its staff. They and the Union disputed whether research assistants on limited term contracts would simply cease to be employd as their terms concluded, or were entitled to be made redudant.
Held: The appeal was allowed. the Employment Appeal Tribunal stated the proper test: ‘A reason relates to the individual if it is something to do with him such as something he is or something he has done. It is to be distinguished from a reason relating to the employer, such as his (or in the case of insolvency, his creditors’) need to effect business change in some respect’. The error was to place the coming to an end of an LTC into the first rather than the second category.

Lady Hale, Deputy President, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes
[2015] UKSC 26, 2015 SLT 265, [2015] ICR 567, [2016] 1 All ER 524, 2015 SC (UKSC) 121, 2015 GWD 14-245, [2015] IRLR 573, [2015] ELR 381, UKSC 2014/0067
Bailii, Bailii Summary, SC, SC Summary
Trade Union and Labour Relations (Consolidation) Act 1992 188(1), Council Directive 75/129/EEC
Scotland
Citing:
Cited – Association of University Teachers v University of Newcastle-upon-Tyne EAT 1987
The Employment Appeal Tribunal held that the definition of ‘being redundant’ in the 1992 Act covered the lack of further funding for the post of a lecturer employed under an Limited Term Contract and so the consultation duty should have been . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
At EAT – University of Stirling v University and College Union EAT 8-Nov-2011
EAT REDUNDANCY
Definition
Collective consultation and information
TULRA ss.188 and 195. Collective consultations. Fixed term contracts. Dismissals for reason that employees under fixed term . .
At SCS – University College Union v The University of Stirling SCS 14-Jan-2014
(Extra Division Inner House) The University was considering making redudancies. The Union argued that when considering the level of consultation needed, the number of qualifying employees should include those on limited term contracts, and ‘This in . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 December 2021; Ref: scu.546151

Dispute as to method of implementation of collective bargaining arrangements.

Supperstone J
[2015] EWHC 1110 (QB)
Bailii

Employment

Updated: 29 December 2021; Ref: scu.545916

EAT Equal Pay Act: Material Factor Defence and Justification – SEX DISCRIMINATION – Direct – UNFAIR DISMISSAL – Constructive dismissal
The Employment Tribunal upheld the Respondent’s genuine material factor defence to the Appellant’s equal pay claim. No error of law shown. The sex discrimination claim failed on the facts and on limitation grounds. The Employment Tribunal found permissibly that the Respondent was not in repudiatory breach of contract so that the constructive unfair dismissal claim also failed. Accordingly, appeal dismissed.

Peter Clarke HHJ
[2015] UKEAT 0135 – 14 – 2204
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545912

EAT Practice and Procedure : Amendment – Case management
1. These proceedings involve approximately 1,600 individual claims for unfair dismissal arising out of mass redundancies when the Respondent, ‘Remploy’, closed some 60 plants in 2012 and 2013.
2. The Employment Tribunal had carefully and effectively managed the case on the basis of proceeding with a limited number of lead or test cases, raising generic issues that applied across the board to all Claimants, as a result of there having been national policies applied across the country to redundancies in all Remploy facilities.
3. The Claimants were members of trade unions and represented by experienced solicitors and counsel. The claims forms had been professionally drafted. The allegations of unfairness included the allegation that the Respondent had failed to consult with the Claimants in relation to possible redeployment to other factories. Prior to September 2014 the parties had been working on the basis of the case management model; the process of preparing witness statements and giving disclosure was well under way and a hearing date had been set for November 2014.
4. In September 2014 the Claimants applied to raise further issues as to unfair selection for redundancy and failure to consider various possible redeployments other than to ‘other factories’. These issues did not arise out of any national policies but arose on a plant by plant basis. The Claimants maintained that the new allegations were simply further Particulars of allegations already pleaded and that permission to amend was not required. However they sought, and were granted, permission to amend. The Respondent argued that the effect of allowing the amendments would be to fracture the existing case management model as the new issues (which had not been particularised, nor were the Claimants concerned identified) were not capable of being determined on the basis of the existing case management model and would lead to delay (the proceedings were in fact adjourned on two further occasions) and added expense of providing further witness statements and disclosure. The Respondent also claimed that it was prejudiced by the proposed amendments as its work force, including managers with the relevant knowledge had been dispersed and documents and email archives were no longer available.
5. The Employment Judge considered that he was bound by the decision in Langston v Cranfield University [1998] IRLR 172 to investigate in any case of unfair dismissal by reason of redundancy, as implicit in that claim, that the unfairness incorporated unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer, even if not specifically pleaded or raised as issues by the Claimants.
6. The Employment Appeal Tribunal held that the Employment Judge had fallen into error, firstly by allowing amendments that had not been fully formulated or particularised and by considering them together rather than examining each proposed amendment separately. Without properly formulated and particularised draft amendments it was impossible for the Employment Tribunal (or the Respondent) to consider how the amendments would affect the existing case management model and whether or not they could be accommodated by a limited number of lead or test cases, the effect on existing hearing dates, prejudice to the Respondent, for example in identifying necessary witnesses and having access to relevant documentation and information. The Employment Tribunal should also have considered the reasons for the delay by the Claimants in putting forward the suggested amendments and when they or their legal representatives were first aware of the relevant factual basis for the ‘new’ allegations. It was also necessary to consider the effect on any increase in likely costs to the parties and on expenditure of the resources of the Employment Tribunal.
7. The decision in Langston had no blanket application and no application to a case such as the instant case in which the parties were legally represented, had defined in their pleadings the issues they wanted decided by the Employment Tribunal and where there had been extensive and comprehensive case management on the basis of the pleadings.
8. The permission of the Employment Tribunal was necessary to add new Particulars in any event and it had to consider whether or not to allow amendment on conventional principles as set out for example in Selkent Bus Co Ltd v Moore [1996] IRLR 661, [1996] ICR 836.
9. Notwithstanding the reluctance of the Employment Appeal Tribunal to interfere with discretionary case management decisions of Employment Tribunals, the decision in the instant case to grant permission to amend was sufficiently flawed as to require being set aside

Serota QC HHJ
[2015] UKEAT 0405 – 14 – 2404
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545913

EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – AGENCY WORKERS
PRACTICE AND PROCEDURE – Time for appealing
The Claimant was an agency worker, found to be employed by the agency. After an assignment to the Second Respondent (‘R2’) which had lasted several years came to an end, and a van and fuel card handed back by the Claimant to the First Respondent (‘R1’), she did no further work for R1 or R2, though R2 (the agency) told her it would try to arrange some if she wanted it. She indicated that she was not interested, and R2 lost contact with her until a month later she complained she had been unfairly dismissed by R1 and by R2. R1 told her that it was not her employer but that R2 was. After a further month, R2 wrote to the Claimant, enclosing her P45 and saying that if she wished it would try to arrange further work for her, but if she did not or did not respond within two weeks, she would be treated as wishing to terminate her employment. The Judge held this letter amounted to a dismissal, but did not apply the objective reading of the letter, nor explain why in context this amounted to a dismissal.
In a further hearing, the Employment Tribunal held that it was just and equitable to extend time for a claim under the Agency Workers Regulations, but in exercising its discretion said it was relevant to consider when the Claimant first knew of the acts which she complained of as breaches of those Regulations. However, it did not answer that question at all, but in purported discussion of it addressed the wholly different question of why the Claimant had been late in submitting her claim. The approach to exercises of the discretion was thus flawed, and the decision needed to be taken afresh.
The questions whether the Claimant resigned or was dismissed and if so when, and whether her claim was within the normal time limit, as well as the question whether in all the circumstances it would be just and equitable to extend time for her claim in respect of the Agency Workers Regulations were remitted to a fresh Tribunal. It would be open to that Employment Tribunal to consider whether the Claimant (if she wished to do so) could advance a claim of constructive dismissal.

Langstaff P J
[2015] UKEAT 0024 – 14 – 1903
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545908

EAT Jurisdictional Points – PRACTICE AND PROCEDURE – Chairman alone
An Employment Judge sitting alone heard a claim of unfair dismissal (which he should hear alone unless he exercised discretion not to do so) together with one in respect of detriment for trade union activity (which he could only hear with lay members, unless the parties agreed otherwise). He did not consider whether to exercise his discretion to sit with members in respect of the dismissal claim. Held that he should have done so; and that it was so unlikely that the discretion could have been exercised in this case other than by having a combined hearing of the claims, sitting with lay members, that the matter would be remitted to a fresh Tribunal for hearing on that basis, unless an Employment Judge with responsibility for the case later determined for good reason that the two claims (which were linked, though not entirely overlapping) should be heard separately. The fees paid for appealing were to be paid in full by the Respondent to the Claimant.

Langstaff P J
[2015] UKEAT 0388 – 14 – 2503
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545909

EAT Practice and Procedure: Preliminary Issues – Jurisdiction – Dispute resolution procedures
The six Claimants worked in a unionised office. In 2008, several of their colleagues raised a grievance which included complaints about not having being paid night-shift premium, a failure which had been ongoing since the office opened in 2005. A claim was not made until 2011, after continuation of the same series of deductions. If one had been made before 5 April 2009, the dispute resolution procedures under the Employment Act 2002 would have been mandatory. As it was, the transitional provisions applied. At a first hearing it was accordingly held that because none of the six were named in their colleagues’ collective grievance, the Employment Tribunal had no jurisdiction to hear any part of the claim. After appeal to the Employment Appeal Tribunal, the matter was remitted to the Employment Tribunal to decide if the Claimants had been party to the grievance within the meaning of the transitional provisions and dispute procedure regulations. At that, the Employment Tribunal decided that the grievance had been one presented by a trade union representative on behalf of those making it, and that the Claimants were party to it. He held that the collective grievance fell within the regulations, and that to suggest that the Claimants were not party to it was to take an unduly technical approach. Since it was common ground that no Claimant had been named or identified in the grievance, nor had any signed it, there was no adequate basis to hold that any was a party to it. Since the dispute resolution procedures had been abolished, and the transactional provisions did not apply to render them applicable to the Claimants’ cases (since the Claimants had not been a party to any grievance which fell within the regulations prior to 5 April 2009), the post April 2009 law applied, and there was no jurisdictional bar to the claims proceeding. The appeals were allowed, though it was accepted that it remained open to the Respondent to argue that insofar as the claims related to underpayments prior to 5 April 2009, they might be barred for failure then to comply with the dispute resolution procedures.

Langstaff P J
[2015] UKEAT 0039 – 13 – 1803
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545910

EAT Practice and Procedure: Costs – 1. Although reference was made to the possibility of a payment on divorce being available to discharge a costs award, it was not a material consideration in the decision to award costs which was principally based on the Claimant’s age and the likelihood that she would earn sufficient in the rest of her working life to pay such an award.
2. Further, there was no error in the failure to reduce the costs award in light of the Claimant’s more serious debt position, since no precise estimate of what was affordable had been made, and the award amounted to less than a third of the costs incurred by the Respondent in defending the unreasonably pursued, false claim of race discrimination.
3. Accordingly the appeal failed.

Simpler J
[2015] UKEAT 0259 – 14 – 1902
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545903

EAT Practice and Procedure – An Employment Tribunal found in favour of the Claimant on one of the claims she made. It thought it just and equitable to extend time. On appeal the employer argued, successfully, that since there had been no evidence given by the Claimant to explain why she had been late in making a claim, and the reason was not obviously to be inferred, there was no proper basis for making the claim.

Langstaff P J
[2015] UKEAT 0274 – 14 – 2002
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545906

EAT Jurisdictional Points: Extension of Time: Just and Equitable
Although there were aspects of the procedure adopted by the Employment Tribunal which were not ideal, the appeal was dismissed as there was no error of law disclosed:
(i) In their decision that the Claimant had not put forward a case that her dismissal (which took place less than three months before the ET1) was part of a continuous course of conduct involving sex discrimination which otherwise ended more than three months before the ET1;
(ii) In their decision that it would not be just and equitable to allow her claims based on that course of conduct to proceed.

Shanks HHJ
[2015] UKEAT 0331 – 14 – 0302
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545907

EAT Working Time Regulations: Holiday Pay – The Appellants worked a complicated shift system. They were paid the same amount each week whether or not they were rostered to work, however many hours they worked and whether or not they were on holiday. The suggestion that they were not being paid in respect of holiday was unsupportable.

Shanks HHJ
[2015] UKEAT 0376 – 14 – 2002
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545904

EAT Unfair Dismissal: Constructive Dismissal – The Employment Tribunal dismissed the Claimant’s claim that she had been constructively dismissed on the basis that her employer had breached the implied term of trust and confidence.
She appealed on the grounds that the Employment Tribunal had failed to make an objective assessment of the employer’s conduct but had considered their subjective intentions and beliefs. On analysis that submission was not well founded and the appeal was simply an attack on a factual finding of the Employment Tribunal that there had been no repudiatory breach by the employer.

Shanls HHJ
[2015] UKEAT 0386 – 14 – 2602
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545905

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – Contributory fault
Polkey deduction
The Claimant is a politician in Local Government and is currently the elected Mayor of Liverpool. This is an executive post and regarded as full-time. The position carries with it an annual allowance of almost andpound;80,000. The Claimant had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately andpound;50,000. Prior to his election as Mayor, the Claimant was employed by a neighbouring Local Authority, Sefton Metropolitan Borough Council (‘Sefton’) at Chesterfield High School and once elected Leader of Liverpool City Council had ceased to work at the school. The Claimant and Sefton agreed that he should continue as an employee but on the basis that he would be paid the maximum allowed as paid leave to enable employees to hold public office by section 10 Local Government and Housing Act 1989 (208 hours per annum). His post was held open and Sefton also continued to pay pension contributions.
This arrangement continued until the school became an Academy when the Claimant’s employment transferred by a TUPE transfer to the Respondent, now independent of Sefton.
The Respondent was concerned that the arrangement was ‘inequitable’ principally because the Respondent was paying some andpound;4,500 per annum to the Claimant but the pupils at the school received no benefit. The Respondent accordingly terminated the agreement. The Claimant claimed, inter alia that he had been dismissed unfairly.
The Employment Tribunal found that he had remained an employee and had been dismissed for ‘some other substantial reason’, a potentially fair reason. However, the dismissal procedure was unfair, and his claim for unfair dismissal was upheld. He was entitled only to a basic award but subject to a 100% Polkey deduction and 25% deduction for contribution under section 122(2) Employment Rights Act 1996 but no compensatory award.
The Claimant appealed. The Employment Appeal Tribunal upheld the decision of the Employment Tribunal on the basis that the deductions were justified on the facts found by the Employment Tribunal and that the Respondent had acted reasonably in taking the view that a continuation of an arrangement whereby the Claimant was paid (albeit a modest amount) by a publicly funded school without having to provide any services, for an indefinite period was of no value to the Respondent and might lead to significant criticism. It was entitled reasonably to regard the arrangement as inequitable and unsustainable and to terminate the Claimant’s employment.

Serota QC HHJ
[2015] UKEAT 0206 – 14 – 1404
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545354

EAT Unfair Dismissal: Constructive Dismissal – Whether, at the time of the Claimants’ resignations, it was a term of their contracts of employment that they were entitled to share gratuities left by customers on whom they waited. On the facts it was found that the Employment Judge was entitled to conclude that the arrangement was no longer contractual after 2009. Thus the Claimants were not constructively dismissed in July 2013.

Peter Clark HHJ
[2014] UKEAT 0267 – 14 – 1202
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545169

EAT Practice and Procedure: Costs – The Tribunal erred in law in assuming that once it had been established that there was unreasonable conduct in persisting with proceedings following a deposit order, a costs order should follow subject only to considering means. Even where unreasonable conduct has been found, a Tribunal has discretion as to whether costs should be awarded, and if so, in what amount, and must consider all relevant circumstances in exercising that discretion.
The question whether costs should be awarded and if so in what amount involved the exercise of discretion and, inherently therefore, a range of possible outcomes. There was not ‘only one outcome’ and accordingly the Employment Appeal Tribunal had no jurisdiction to determine this issue absent agreement from both parties.
Although unusual, given a number of matters referred to in the Tribunal’s Reasons that led to the conclusion that there was insufficient confidence that the Tribunal was not so committed to its decision that a rethink was likely, the matter would be remitted to a differently constituted Tribunal.

Simler J
[2015] UKEAT 0371 – 14 – 1702
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545170

EAT Contract of Employment : Notice and Pay In Lieu
The Claimant was dismissed. He claimed in respect of unfair dismissal and lack of notice pay. The Employment Tribunal found his dismissal was fair. The Employment Tribunal recognised that the test for notice pay differed from unfair dismissal. It was required to decide if the Claimant had breached his contract. The Employment Tribunal decided that the Claimant had not, stating that the Claimant gave direct oral evidence to that effect, whereas the Respondent did not lead direct oral evidence but relied on hearsay evidence. The Respondent argued that the Employment Tribunal had not applied the correct test or if it had it had not explained its reasoning.
Held: the Employment Tribunal gave insufficient reasoning to show why it had placed no weight on indirect evidence and had accepted the Claimant’s oral evidence. Case remitted to the same Employment Tribunal to receive written submissions on the question of notice pay only and to give a fresh decision.

Lady Stacey
[2015] UKEAT 0401 – 14 – 1202
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545171

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – There appears to have been a substantial irregularity in that the Employment Judge refused to allow a witness called by the Respondent to give evidence, although he could have given highly material evidence.
It is also fairly arguable that the Employment Judge made findings which were not supported by any evidence.

Serota QC HHJ
[2015] UKEAT 0230 – 14 – 0902
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545172

Working Time Regulations – VICTIMISATION DISCRIMINATION – Detriment
Employment Rights Act 1996 section 45A(1)(a), (b) and (c): right not to be subjected to detriment on the grounds that a worker has (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998, (b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations, (c) failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations.
The Claimant fire fighters contended that they had been subjected to detriment (by reason of their transfers to other stations) on grounds that they had proposed to refuse to comply with a requirement that the Respondent proposed to impose in contravention of the Working Time Regulations (section 45A(1)(a)), and/or proposed to refuse to forgo a right under those Regulations (section 45A(1)(b)), and/or had failed to sign a workforce agreement or otherwise enter into an agreement to opt-out of the Regulations (section 45A(1)(c)).
The Employment Tribunal had clearly found that there had been no requirement that the Claimants sign a workforce agreement/other opt-out and could be no challenge to the dismissal of the claims under section 45A(1)(c).
To determine the claims under sections 45A(1)(a) and (b) the Employment Tribunal first needed to make a finding whether there had in fact been (or would be) a contravention of the Working Time Regulations or that the Claimants were refusing to forgo a right under those Regulations. The Employment Tribunal’s reasoning was less than clear in terms of the distinctions between the different statutory provisions. That was, however, in part because the Claimants’ cases were unclear in this respect. Ultimately the Employment Tribunal had found that what the Respondent proposed did not give rise to a contravention of the Working Time Regulations and that conclusion was not susceptible to challenge on appeal. Moreover, the Employment Tribunal had found that the Claimants had not proposed to forgo a right (to rest breaks) under the Regulations before the Respondent had decided to impose the detriments complained of. That being so, it was not a matter that could have materially influenced the decision.
Appeals dismissed.

Eady QC HHJ
[2015] UKEAT 0365 – 14 – 1004
Bailii
Employment Rights Act 1996 45A(1)(a)
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545175

Unfair Dismissal: Contributory Fault – Polkey deduction
Employment Rights Act 1996 sections 122(2) (basic award) and 123(1) and (6) (compensatory award)
Unfair Dismissal – Compensatory Award – Polkey reduction

Eady QC HHJ
[2015] UKEAT 0287 – 14 – 1602
Bailii
Employment Rights Act 1996 122(2) 123(1) 123(6)
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.545174