EAT JURISDICTIONAL POINTS
PRACTICE AND PROCEDURE – Costs
The Claimant alleged unfair and/or wrongful dismissal, arising out of a resignation which the Employment Appeal Tribunal found had been made without any notice, and where there had been no repudiatory breach by the employer. Accordingly, the Claimant was not entitled to any award of compensation for unfair dismissal, nor for wrongful dismissal, and had no legitimate claim for moneys due in the notice period (since in breach of contract she had simply left). She withdrew her claim for notice pay during the hearing. In fact, in advance of the hearing she had benevolently been paid a sum in lieu of notice, and her full holiday pay entitlement. The Judge awarded andpound;1,800 at the hearing because the employer had not provided a statement of terms and conditions of employment under section 1 of the Employment Rights Act 1996, and andpound;150 by way of fee reimbursement because the Claimant had partially won her case. He declined to reconsider his decision (on the basis that section 38 of the Employment Act 2002 required the Claimant to have succeeded in a claim, or a finding of fact to have been made in her favour, before any such award could be made) saying that the withdrawal of a justified claim by a claimant amounted to a finding of fact by a Tribunal in her favour.
Held: The Claimant had no justified claim; she had lost her case; and there was no jurisdiction to make an award in respect of the admitted failure of the employer to observe section 1 Employment Rights Act 1996. Even if the claim had not been justified (rather than hopeless) a withdrawal could not be equated to a finding in her favour, which is what the section specifically required. Insofar as the policy underpinning the statute could be ascertained, in any event it was better served by the opposite interpretation to that which the Judge thought appropriate. Appeal allowed, with reimbursement of the appeal fees.

Langstaff P J
[2015] UKEAT 0377 – 14 – 0602
Bailii
Employment Rights Act 1996 1
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544858

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Automatically unfair reasons
VICTIMISATION DISCRIMINATION – Protected disclosure
Protected disclosures – made absent reasonable belief and good faith: the Employment Tribunal had correctly understood the case before it and reached permissible findings on the evidence. The Claimant was wrong to suggest his evidence had not been contradicted.
Reason for dismissal – automatically unfair reasons – reasonable grounds: the Employment Tribunal’s findings of fact were based on evidence before it. The Claimant’s real complaint was as to the weight the Employment Tribunal had given parts of the evidence; that was not a proper basis of challenge.

Eady QC HHJ
[2015] UKEAT 0477 – 13 – 2701
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544857

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Contributory fault
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Unfair Dismissal
The Employment Tribunal found that the dismissal (for a reason relating to the Claimant’s conduct) was unfair; the Respondent having failed to carry out a reasonable investigation.
The Respondent appealed against that Judgment, contending that the Employment Tribunal had erred in failing to apply correct legal test in light of the Claimant’s admissions to the Respondent during the investigation and disciplinary process, see RSPB v Croucher [1984] IRLR 425.
Held: Appeal allowed on this ground. Given that the grounds relied on by the Respondent included the admissions made by the Claimant during the internal processes, the question was whether it had carried out a reasonable investigation, tested against the range of reasonable responses of the reasonable employer. Applying Croucher, where the employer’s decision was based on admissions on the part of the employee, it was hard to see why it was not within the range of reasonable responses for it to conclude it was unnecessary to carry out further investigation. The Employment Tribunal felt further investigation would have highlighted other factors which put the Claimant’s conduct in context such that a very different view of his culpability might be taken. The difficulty was that the Employment Tribunal’s conclusions as to what that further investigation would have uncovered were derived from its own findings, on the evidence before it, not that before the Respondent. Adopting that approach, the Employment Tribunal failed to address the significance of the admissions made by the Claimant from the perspective of the Respondent at the time.
Given that failure to separate out the findings and approach relevant to the wrongful dismissal claim from the approach required for the unfair dismissal claim, the Judgment was unsafe. It could not be assumed that the Employment Tribunal would necessarily have reached same conclusion if it had applied the correct test and assessed question of fairness based on what was before the Respondent at the relevant time – including the admissions made by the Claimant – as tested against the range of reasonable responses of the reasonable employer.
As the Employment Appeal Tribunal could not simply substitute its view as to the fairness of the dismissal, the case would need to be remitted for fresh consideration.
Contributory Fault
The Employment Tribunal declined to make a reduction in the Claimant’s compensation due to contributory fault.
The Respondent appealed on the basis that the Employment Tribunal had: (i) erred in assessing the question of contributory fault by limiting consideration to whether the Claimant was blameworthy in respect of the incident when it should properly have considered questions of contribution more generally, including the Claimant’s failure to respond honestly in investigation etc; (ii) reached a perverse conclusion.
Held: It was not right to say that that the Employment Tribunal had confined its consideration only to the Claimant’s conduct in respect of the incident; paragraph 78 (particularly when read together with preceding findings) made clear it did not. The Employment Tribunal plainly had in mind the question that the Claimant’s responses in the internal investigation and disciplinary hearing might have contributed to the decision reached.
On the perversity challenge, however, allowing for the high test to be applied, the Employment Tribunal had lost sight of the significance of the Claimant’s admissions and stance in the internal process. That went to the conclusion on liability (see above) but also raised the question as to how that did not amount to contributory fault on the part of the Claimant.
As the unfair dismissal claim was to be re-heard, this point would be for the Employment Tribunal considering this case at the remitted hearing in any event.
Wrongful dismissal
The Employment Tribunal had concluded that the Claimant had been wrongfully dismissed.
The Respondent appealed on the basis that the Employment Tribunal had failed to properly direct itself as to the correct legal test and/or failed to give adequate reasons and/or reached a perverse conclusion.
Held: It was right to say there was no self-direction as to the correct legal test. It might be said that the test was obvious and did not need re-stating but the reasons were inadequate to properly explain how the Employment Tribunal had approached this task and to demonstrate that it had taken into account all relevant factors. The conclusion was not necessarily perverse. This was also a point for the Employment Tribunal on the remitted hearing of both claims.
Disposal
Appeal allowed on all grounds. Claims of unfair and wrongful dismissal remitted to a differently constituted Employment Tribunal for re-hearing.

Eady QC HHJ
[2015] UKEAT 0344 – 14 – 2301
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544853

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
PRACTICE AND PROCEDURE – Review
Dishonesty
The concept of subjective dishonesty did not mean that the Employment Judge was bound to consider the approach taken in John Lewis plc v Coyne [2001] IRLR 139, which stated that, where an issue arose as to whether conduct might be dishonest or not, that should be determined by reference to what had been said by Lord Lane LCJ in R v Ghosh [1982] QB 1053 at paragraphs 162 and 163. The issue did not arise in the instant case and did not need to be decided but it was doubtful how useful a jury direction in a criminal case was in the employment context.
Reasonableness of dismissal – Inadequacy of reasons
The Judgment overall does not say how important issues have actually been resolved. It asserts conclusions, which it adopts from the Respondent’s case and submissions, but that does not make for an adequately reasoned decision. The Written Reasons did not fulfil the criteria for a properly reasoned decision, either as set out in paragraph 62(5) of the Employment Tribunal 2013 Rules or in accordance with the familiar authorities of Meek v Birmingham City Council [1987] IRLR 250 and Greenwood v NWF Retail Ltd [2011] ICR 896. Case remitted for a complete re-hearing.
Application for review of EAT Judgment
That the appeal succeeded on the above ground did not mean it must succeed on the second ground of appeal, namely that the Employment Judge must have fallen into the error identified in Whitbread plc t/a Whitbread Medway Inns v Hall [2001] IRLR 275 and Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 of concluding that where there was an honest and genuine belief that the employee had committed an act of gross misconduct then the dismissal must be axiomatically fair. It was impossible to be confident that was the case because of the inadequacy of reasons; the factors relating to whether or not this Tribunal should review its own decisions set out at paragraph 47 of the judgment in Zinda v Governing Body of Barn Hill Community High School [2011] ICR 174 were considered.

Hand QC HHJ
[2015] UKEAT 0320 – 14 – 2001
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544854

EAT PRACTICE AND PROCEDURE – Application/Claim
Three claimants completed forms of application for fee remission some days after submitting their claims on line. The Respondent argued that the ET should have rejected the claims, as it was obliged to do by rule 11 of its Rules of Procedure since the applications for remission could not be said to ‘accompany’ the claim as the rule required, and that any repeat application would then have been hopelessly out of time. The ET thus had no jurisdiction. The ET considered, and rejected this, since it thought that to send in an application within 7 days of having presented the claim was to accompany the claim with the application. If that was not so, then rule 6 allowed the ET to waive irregularity, and it was just to do so. These conclusions were not accepted on appeal: but a submission made by the Secretary of State, intervening, that to tick, online, a question asking if the claimant intended to apply for remission amounted in the context of the legislation to an unequivocal choice as between paying a fee or applying for remission, and thus was sufficient, was. Accordingly, the appeal was dismissed.
Observations made that it must follow from the Secretary of State’s submissions that it is sufficient to amount to accompanying a claim with an application for remission for a claim made by post or to an office to be accompanied with a statement that that is what the claimant is choosing to do.

Langstaff P J
[2015] UKEAT 0389 – 14 – 2603
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544866

EAT PRACTICE AND PROCEDURE
Restricted order reporting
Disposal of appeal including remission
The Employment Tribunal erred in refusing to extend Restricted Reporting Orders in respect of a Respondent to Employment Tribunal proceedings and a non-party. They failed to carry out the assessment of comparative importance of the Article 8 and Article 10 rights engaged in respect of each of the Appellants. Further, the matters the Employment Tribunal took into account in negating continuing the Restricted Reporting Order were not properly categorised as matters of public interest. In re S(A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 and F v G Publication [2012] ICR 246 applied. A Restricted Reporting Order made under Section 35(1)(a) Employment Tribunals Act 1996. Jafri v Lincoln College [2014] ICR 920 and Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 considered.

Slade J
[2015] UKEAT 0525 – 13 – 2503
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544860

EAT Unfair Dismissal : Reasonableness of Dismissal – DISABILITY DISCRIMINATION: Reasonable Adjustments; Exclusions /Jurisdictions
The Claimant suffered from a long standing chronic degenerative condition of his spine, particularly affecting his neck. After being absent from work for some ten months in 2011, he sought ill health retirement, which was recommended by doctors on the basis of his description to them of the symptoms from which he suffered. Within two weeks of their report, holding that the Claimant was permanently unfit for any work, he was observed displaying a range of movements without any apparent difficulty or discomfort, which appeared inconsistent to those he had been describing to those doctors, who now revised their opinion such that they held him fit for some work, albeit restricted by his underlying condition. The employer disciplined him for exaggerating his condition to the doctors, and absenting himself from work when he was fit to do some. A Tribunal held that the employer genuinely believed that he was culpable, after a reasonable investigation, and that if it had reasonable grounds for its belief dismissal would fall within the range of reasonable responses. It held however that the grounds were not reasonable. An appeal against that conclusion was allowed, on the basis that the Tribunal had taken the wrong approach – it had not asked what the grounds were upon which the employer acted, but rather determined for itself what it made of the medical evidence, and substituted its own view as to whether the Claimant had exaggerated; it made two factual errors which separately fed into its analysis; and took account of two matters which on analysis were of no logical relevance. It thought perversely that the change of view by the Doctors was ‘not an entirely different prognosis’.
Separately, the Tribunal decided that the employer had been under a duty to make reasonable adjustments in the light of the Claimant’s neck trouble, but had chosen not to do so because it thought the Claimant might be absent from work again. Accordingly, there was no proper basis for thinking that its omission to act at any stage thereafter was part of a continuing act, such that time had not expired. By deciding not to implement the adjustment when it might have done the employer was refusing to comply with its duty, such that time started running at that point. Accordingly, the claim was brought out of time unless extended. The Tribunal had not as it should have done determined if it was just and equitable to extend that time. The appeal was allowed, and the questions whether there were reasonable grounds for what had been found to be the employer’s genuine belief, whether the dismissal was wrongful, and whether time should be extended for bringing a claim in respect of the employer’s breach of its duty to make a reasonable adjustment were remitted to a fresh Tribunal.

Langstaff P J
[2015] UKEAT 0393 – 14 – 2503
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.544862

EAT PRACTICE AND PROCEDURE – Chairman alone
A pay claim was properly decided by a Judge alone correctly applying the law. But he had no jurisdiction to hear an unfair dismissal claim: ETA s4 requires a three person tribunal. This point remitted to a full hearing, unless the Respondent consents.

[2010] UKEAT 0365 – 10 – 0112
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.428722

Whether PGMOL should deduct income tax and employer’s National Insurance Contributions from the payments it makes to referees whom it supplies to officiate at football matches.
Held: The revenue’s appeal succeeded

Lady Justice Elisabeth Laing DBE
[2021] EWCA Civ 1370
Bailii, Judiciary
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.668132

The claimant’s appeals against two decisions of the Employment Tribunal, made in different proceedings brought against the respondent, were heard together.
In the first appeal, the claimant challenged the Employment Tribunal’s refusal to reconsider its earlier judgment dismissing the respondent’s application to strike out three claims brought by the claimant. The Employment Appeal Tribunal held that there had been a procedural irregularity in the way in which the Employment Tribunal had dealt with the reconsideration application, but that it was not material to the outcome because the claimant (who had successfully resisted the application to strike out her claims) was seeking changes to the Employment Tribunal’s reasons for refusing the respondent’s application, rather than a change in the result. Applying AB v The Home Office UKEAT/0363/13/JOJ, the Employment Appeal Tribunal held that the application for reconsideration was not one permitted by the relevant provisions of the Employment Tribunal Rules of Procedure 2013. The appeal against the Employment Tribunal’s refusal to reconsider was dismissed.
In the second appeal, the claimant challenged the Employment Tribunal’s decision to dismiss a fourth claim brought against the respondent after a full merits hearing.
The claimant contended that the tribunal which heard the fourth claim had erred in law in refusing an application to adjourn the hearing on medical grounds because there were not ‘exceptional circumstances’ as required under rule 30A of the Employment Tribunal Rules of Procedure 2013. The Employment Appeal Tribunal held that the tribunal had not erred in law in concluding that there were not ‘exceptional circumstances’ and so refusing the application to adjourn, Morton v Eastleigh Citizens’ Advice Bureau [2020] EWCA Civ 638 considered and applied.
The claimant challenged various elements of the tribunal’s decision to dismiss her fourth claim on the merits as being perverse or otherwise failing to take into account relevant matters. The Employment Appeal Tribunal rejected the claimant’s arguments, holding that the tribunal’s decision was open to it and none of the alleged errors of law had been established.
The claimant also appealed the Employment Tribunal’s decision to refuse her application for an order under rule 50 of the Employment Tribunal Rules of Procedure 2013. The Employment Appeal Tribunal held that there was no error of law in the decision to refuse the rule 50 application and that the Employment Tribunal had correctly held that the claimant’s Article 8 rights were not engaged where the matter in issue was her conduct at a preliminary hearing in the Employment Tribunal which had been held ‘in private’.

[2021] UKEAT 2019-000480
Bailii
England and Wales

Employment

Updated: 29 December 2021; Ref: scu.669831

EAT Unlawful Deduction From Wages – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The employer imposed a 5% pay cut on the workforce without their express consent. The Employment Judge was entitled to conclude implied variation by consent in the absence of objection by the union or employees until 23 October 2012, the first reduced pay packet being issued on 10 May.
Whether certain remarks made by the Employment Judge at the beginning and end of the Employment Tribunal Hearing gave the appearance of bias in favour of the employer. Objectively, they did not.
The Claimant’s appeal is dismissed.

Peter Clarke HHJ
[2015] UKEAT 0262 – 14 – 1501
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543964

EAT Transfer of Undertakings : Service Provision Change – Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’)
Regulation 3(1)(b) – service provision change (‘SPC’) – ‘the client’
The appeal raised a novel point: whether ‘a’ or ‘the’ client, for the purpose of a SPC transfer under Regulation 3(1)(b) was to be understood solely in the singular or whether it could allow for there to be (providing they remain identical) more than one client.
Although the identification of ‘the client’ for the purposes of Regulation 3(1)(b) TUPE has been the subject of earlier consideration in the case-law (see Hunter v McCarrick [2013] ICR 235 (in the EAT, [2012] ICR 533) and SNR Denton UK LLP v Kirwan [2012] IRLR 966), none of the earlier cases had to address, on their particular facts, the question whether – allowing no changes in the end users (‘clients’) before and after the SPC – the singular should not include the plural for these purposes.
Without adopting a ‘purposive approach’, but applying section 6 of the Interpretation Act 1978, the relevant question was whether a contrary intention should be discerned, such that the words expressed in the singular under Regulation 3(1)(b) TUPE are, contrary to the normal rule, not to be read as including the plural?
Without considering the approach laid down by the Interpretation Act, the ET assumed that it must interpret ‘client’ as requiring one single legal entity; the existence of a number of legal entities as clients – even if remaining identical before and after the change in service provision – meant that there could be no SPC transfer.
Held (allowing the appeal):
The ET had erred in adopting such a strict view in this context. There was no reason in principle why ‘the client’ must be a single legal entity for these purposes; why, for example, might the SPC not involve a contract for the provision of particular services drawn up between a contractor and a group of persons who are collectively defined as ‘the client’ under that contract? Allowing that that might be so, the regulation did not evidence an intention that the singular should not encompass the plural for these purposes. The identity of the client or clients must remain the same before and after the SPC but might involve more than one legal entity, subject to the caveat that it would still need to be possible to discern the intention of the client for the purposes of Regulation 3(3)(a)(ii) TUPE. Intention for Regulation 3(3)(a)(ii) purposes would be easier to discern where those entities had evinced common intention by entering into a contract together and would, no doubt, be harder to demonstrate where there was no such umbrella contract. The absence of one single contract would, however, not necessarily be fatal to the finding of some link – some commonality – between the clients in question, so as to allow the identification of intention for those purposes.
The ET in this case did not consider this question. It took the view that there was no SPC because there was no single client. It erred in so doing. It does not require a purposive construction to allow that the use of the singular ‘client’ under Regulation 3(1)(b) includes the plural, ‘clients’. That is not to say that the client or clients do not have to retain their identity before and after the SPC – they do. It is also a requirement that they are sufficiently linked so as to permit the ascertainment of a common intention for Regulation 3(3)(a)(ii) purposes. Otherwise, however, the existence of more than one legal entity and possibly even more than one contract will not necessarily be fatal.
The appropriate course would be to remit this matter back to the same ET (to the extent that it is practicable) to reconsider the question whether there was an SPC.
Upon Ottimo applying for costs (recovery of fees) under Regulation 34A(2A) EAT Rules 1993 (as amended). Noting the guidance laid down by Langstaff P in Look Ahead Housing and Care Ltd v Chetty and Eduah UKEAT/0037/14/MC, it was relevant to have regard to those aspects of the original appeal that had not been successful (five of the original six grounds) and to the steps taken (or not taken) by Ottimo to avoid the need to pursue all aspects of this appeal (Warwick having suggested that it might have been in agreement with the matter being remitted to the ET). In these circumstances, the just award would be for Warwick to pay andpound;1,000 towards Ottimo’s costs incurred by way of fees in this case.

Eady QC HHJ
[2015] UKEAT 0321 – 14 – 0901
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543965

Practice and Procedure : Costs

Shanks HHJ
[2015] UKEAT 0178 – 14 – 1902
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543899

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – Did the fact that the Employment Judge was a governor of a Surrey school at the time of the Employment Tribunal Hearing (and became Chairman of the governing body before the decision was promulgated), give rise to the appearance of bias when he sat on a case involving another Surrey school (the governing body of which was a party).
Applying Porter v Magill it was necessary to (1) ascertain all the circumstances having a bearing on the suggestion that the Judge was biased; and (2) ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the Judge was biased.
This was not a case involving any common policy or line (in contrast to Hamilton v GMB); the Employment Judge had no prior dealings with any of those involved in the case and was unaware of any connection between the Head Teachers of the two schools. Although both schools had access to the same training and advisory services (provided by Babcock 4S), that did not change the position. Ultimately, having ascertained and scrutinised all the circumstances material to the suggestion that the Employment Judge was biased, the fair-minded and informed observer would not conclude that there was any possibility of bias in this case.

Eady QC HHJ
[2015] UKEAT 0227 – 14 – 2702
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543902

ECJ Judgment – Failure of a Member State to fulfil obligations – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Occasional workers in the entertainment arts – Successive fixed-term employment contracts – Clause 5(1) – Measures to prevent the abusive use of successive fixed-term contracts – Concept of ‘objective grounds’ justifying such contracts

C-238/14, [2015] EUECJ C-238/14, ECLI:EU:C:2015:128
Bailii
Directive 1999/70/EC
European

Employment

Updated: 28 December 2021; Ref: scu.543507

EAT Disability Discrimination: Reasonable Adjustments
HARASSMENT – Purpose
DIABILITY DISCRIMINATION – Compensation
The Claimant was disabled. The Respondent had a provision criterion or practice of shutting down access to email and internet for employees on long-term sickness absence. The Employment Tribunal held that this substantially disadvantaged the Claimant in that he was not informed about important developments to his terms and conditions of employment and his benefits. They held that the Respondent had failed to make reasonable adjustments in order to communicate with the Claimant. The Employment Tribunal erred in failing to give reasons for making no award for injury to feelings for failing to make reasonable adjustments which would have enabled the Claimant to apply to join a Share Purchase Plan. Further, the Employment Tribunal erred in not including in the calculation of the personal injury award in respect of stress caused by the failure to make the reasonable adjustment of communicating information about the exercise of share options in good time, the period spent in hospital for stress. The Employment Appeal Tribunal increased the award.
Consideration of whether the Employment Tribunal erred in referring to the Respondent’s motive when determining a harassment claim. Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 applied. Observations on the 10% uplift in Simmons v Castle [2013] 1 WLR 1239 not applying to claims for injury to feelings in Employment Tribunals.

Slade DBE J
[2015] UKEAT 427 – 13 – 2502
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543477

EAT Unfair Dismissal : Constructive Dismissal
Employment Judge Amin had erred in law by construing the contract of employment as conferring a unilateral power of variation on the employer and a finding that the purported unilateral variation of it by the employer was a repudiatory breach of contract would be substituted; Wandsworth London Borough Council v D’Silva [1998] IRLR 193, Security and Facilities Division v Hayes [2001] IRLR 81 and Bateman v ASDA Stores Ltd [2010] IRLR 370 considered and applied.
The second issue which Employment Judge Amin had to decide was whether the repudiatory breach had been accepted by the resignation and that was a question of causation. If the repudiatory breach was part of the cause of the resignation, then that suffices because the law does not require or call for sole causation or predominant effect; Nottinghamshire County Council v Meikle [2004] IRLR 703, Ford v Abbycars (West Horndon) Ltd [2008] UKEAT/0472/07 and Wright v North Ayrshire Council [2014] IRLR 4. Employment Judge Amin failed to consider either of her alternatives (paragraph 39 – her analysis of the resignation letter and paragraph 40 – the answer in cross examination as to her state of health) from the point of view as to whether purported variation was part of the cause of the resignation as it arguably was in either case. This issue had to be remitted; Jafri v Lincoln College [2014] IRLR 544.

Hand QC HHJ
[2015] UKEAT 0305 – 14 – 0801
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543475

EAT Trade Union Rights: Action Short of Dismissal
The Claimant had complained under section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 that he had been subjected to a detriment for union-related activities.
The Employment Tribunal rejected the complaint and the Claimant appealed. The appeal was dismissed: the Employment Tribunal had properly applied the ‘reverse onus’ provision at section 148(1) of the Act and their conclusion could not be described as ‘perverse’.

Shanks HHJ
[2015] UKEAT 0208 – 14 – 2502
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 146(1) 148(1)
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543478

EAT Transfer of Undertakings
TUPE; unfair dismissal; harassment based on religion. Tribunal comprising employment judge sitting alone.
The claimant asserted that her employment had been transferred under TUPE to the respondent. She claimed that she had been unfairly dismissed, and that the wife of a director of the company from which she had been transferred had harassed her at work by making a remark derogatory of her religious beliefs. The respondent argued that the Tribunal consisting of an employment judge sitting alone could not hear a case of harassment on grounds of religion. Further he argued that no sufficient findings of fact had been made to set up a transfer under TUPE: and that no sufficient findings had been made as to the employment status of the director’s wife. No issue was taken with findings that there had been unauthorised deductions of pay and a failure to pay holiday pay, but it was argued that the correct respondent had not been identified in light of the failure to make findings regarding the operation of TUPE.
Held: the arguments by counsel for the respondent are correct. Case remitted to a fresh Tribunal of three persons to be heard again, except in so far as relating to unauthorised deductions and holiday pay, where only the identity of the employer requires to be ascertained.

Stacey HL
[2015] UKEAT 0015 – 14 – 1401
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.543474

[1996] UKEAT 316 – 94 – 2203
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.208268

[1992] UKEAT 447 – 91 – 1011
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.211169

[1996] UKEAT 65 – 95 – 2005
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: 28 December 2021; Ref: scu.208415

[1997] UKEAT 546 – 97 – 1812
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: 28 December 2021; Ref: scu.208047

EAT Unlawful Deduction from Wages

The Honourable Mr Justice Burton (P)
EATS/0050/03, [2004] UKEAT 0050 – 03 – 2604
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.196818

Levy QC HHJ
[2003] EAT 0051 – 03 – 0107, [2003] UKEAT 0051 – 03 – 0107
Bailii, Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.191736

[1991] UKEAT 467 – 90 – 0705
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.211225

Claim brought by way of judicial review for a declaration that the defendant, the Prime Minister, misinterpreted paragraph 1.2 of the Ministerial Code. That paragraph provides that harassing, bullying or other inappropriate or discriminating behaviour is not consistent with the Ministerial Code and will not be tolerated.

Lord Justice Lewis,
Mrs Justice Steyn
[2021] EWHC 3279 (Admin)
Bailii, Judiciary Summry, Judiciary
England and Wales

Employment, Employment

Updated: 28 December 2021; Ref: scu.670382

EAT PART TIME WORKERS
The Appellants are fee-paid medical members of Tribunals. They were not given access to a pension scheme in respect of their service whereas salaried or full-time regional medical members were. The Appellants contended that the work of the typical fee-paid medical member was the same as or broadly similar to that of the regional medical members within the meaning of regulation 2(4)(a) (ii) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Employment Judge Macmillan held that 85% of the work that the regional members did, that is sitting on appeals in a judicial capacity, was the same as the work done 100% of the time by fee-paid medical members and he considered that the work was of high importance. He therefore considered whether the differences between the work that the two groups did were so important that they should not be regarded as being engaged in broadly similar work. He concluded that the differences were of such importance as the role of regional medical members was qualitatively different from that of fee-paid medical members and brought a new dimension to the judicial structure taking elements from both fee-paid medical members’ work and work delegated to the regional medical member from the chief medical member and the chamber president.
The Employment Judge had correctly approached the task of deciding whether the work of the two groups was the same or broadly similar. He had approached the task in the way identified as appropriate by the House of Lords in Matthews and others v Kent and Medway Fire Authority and others [2006] ICR 365. He had considered the work that the regional medical members were engaged on. The conclusions he reached, on the facts as he found them, were ones that he was entitled to reach.

Lewis J
[2015] UKEAT 0239 – 14 – 1601
Bailii
Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 2(4)(a)
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542624

EAT Transfer of Undertakings: Dismissal/Automatically Unfair Dismissal – UNFAIR DISMISSAL – Automatically unfair reasons
The Claimant was employed in a senior position by GSG, which went into administration. The administrators closed part of the business and transferred part to the Respondent. The Claimant had been employed in the transferred part of the business but was dismissed as redundant days before the transfer, which was admittedly a TUPE transfer.
His claim that he had been automatically unfairly dismissed for a reason connected with the transfer failed. On appeal, held:
1) The Employment Judge had failed to apply the principle in Kuzel v Roche [2008] IRLR 530 which applied to the claim in this case and had the effect that, once the Claimant had produced some evidence in support of his case, the burden lay on the Respondent to establish that the reason for the dismissal was not the automatically unfair reason. He had imposed on the Claimant a higher burden and had rejected his case on the basis that he had not discharged the evidential burden. See paragraphs 22 to 28.
2) However the facts were not so clear that the EAT could decide that if the burden of proof had been correctly applied, the Respondent must be taken to have failed to discharge it. There must be a remission; but that remission should be to the same Employment Judge, applying the Sinclair Roche criteria.
Spaceright Europe Ltd v Baillavoine [2012] ICR 520 and Hynd v Armstrong [2007] IRLR 338 in particular considered.

Jeffrey Burke QC HHJ
[2015] UKEAT 0276 – 13 – 1302
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542628

EAT Disability Discrimination: Reasonable Adjustments – The disabled Claimant transferred to a role (A) for which, after delay, reasonable adjustments were made. Following mediation the Respondent ordered her transfer to role (B) which she never took up prior to medical retirement.
The Employment Tribunal held transfer to (B) represented a breach of section 21 Equality Act 2010.
Respondent’s appeal allowed. Case remitted to a fresh Employment Tribunal to determine whether role (B) would have represented a reasonable adjustment and (on the Claimant’s cross-appeal) whether the transfer to (B) amounted to disability related discrimination contrary to section 15.

Peter Clarke HHJ
[2015] UKEAT 0292 – 14 – 1302
Bailii
Equality Act 2010 21
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542626

Employer’s appeal against a decision that the claimant’s employment automatically transferred to it under the 2006 Regulations.

Jackson, Kitchin, Floyd LJJ
[2015] EWCA Civ 75
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542616

EAT Trade Union Membership – The Certification Officer did not err in dismissing a Complaint by Mr Mace that the successful candidate for election as National President in 2012 was ineligible to stand as he was not a member of the National Union of Mineworkers within the meaning of NUM Rule 5A(iii). The Certification Officer did not err in holding that Mr Wilson came within the intended meaning of the Rule as an Area Official performing duties for the NUM (Scotland Area) which was an Area within the rules although he was paid by the NUM (Scottish Area). Further, the Certification Officer did not err in holding that the Union could rely on Trade Union and Labour Relations (Consolidation) Act 1992 Section 47(3) to uphold a condition of membership of the NEC as a qualification for standing for election as National President.

Slade DBE J
[2015] UKEAT 0080 – 14 – 0602
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 47(3)
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542328

EAT Practice and Procedure : Transfer/Hearing Together – Time for appealing
Appeal from Registrar: the time limited by rule 3(3) of the Employment Appeal Tribunal Rules 1993 (‘the EAT Rules’) for serving the documents necessary for the proper institution of an appeal, as provided for by rule 3(3)(1)(a)-(c) of the EAT Rules, started to run when an Employment Tribunal sent out a judgment and written reasons even though it had been wrongly addressed both in terms of the identity of the person to whom it had been addressed as well as the address itself. That was so even though under rule 86 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the document had not been ‘delivered’ – Sian v Abbey National plc [2004] ICR 55; [2004] IRLR 185 considered and applied.
Where two cases involving two different Claimants are heard together the two cases constitute the proceedings for the purposes of rule 3(1) of the EAT Rules and therefore even if only one Claimant proposes to appeal, rule 3(1)(b) requires the prospective Appellant to either serve the ET1 form and ET3 forms in the co-Claimant’s case or give an explanation for not doing so and an appeal will not be properly instituted where neither step has been taken, notwithstanding the fact that the co-Claimant proves to have no interest in the appeal process.
Whilst the conduct of a legal adviser may be a factor to take account of in exercising the discretion to extend time it is likely to be difficult to investigate and unlikely to be a compelling factor – Muschett v Hounslow London Borough Council [2009] ICR 424 considered.
The very considerable delay in instituting the appeal was not excusable, ‘extreme diligence’ had not been shown by the Appellant and his legal advisers and discretion was not exercised in favour of extending time.

Hand QC HHJ
[2015] UKEAT 0203 – 14 – 0902
Bailii
Employment Appeal Tribunal Rules 1993 3(3)
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542434

EAT Unfair Dismissal : Contributory Fault – UNFAIR DISMISSAL – Compensation DISABILITY DISCRIMINATION – Compensation
The Employment Tribunal was correct in not re-opening, at the remedy stage, the issue of contributory conduct which had been determined at an earlier Liability Hearing. 25 per cent uplift for non-compliance with the ACAS Code was permissible and sufficiently reasoned. Those grounds of appeal were dismissed.
The Employment Tribunal was wrong not to consider the question of half-pay sick absence when assessing Unfair Dismissal/disability discrimination loss of earnings. Case remitted to do so. Further, the Employment Tribunal omitted to issue a recoupment notice. To be remedied on remission to the same Employment Tribunal.

Peter Clark HHJ
[2015] UKEAT 0307 – 14 – 0601
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542325

EAT Practice and Procedure: Review – Compromise
By the first of two appeals, the Claimant appealed against the decision of a Regional Employment Judge to reject at the preliminary consideration stage his application for a review of a decision of a different Judge to reject his claim for interim relief on the ground that he had been dismissed for making protected disclosures. Since that decision the Claimant had settled his unfair dismissal claim for a substantial sum by a COT3 form; his claim was dismissed upon withdrawal; the file had been destroyed as a result. HR subsequently discovered that documents disclosed to him prior to the settlement, which he knew had been redacted, had been redacted so as to remove passages which, on his case, revealed the true reason for the dismissal. He therefore sought to have the interim relief application reviewed on the basis of new evidence. A Regional Employment Judge decided that it was not practicable for the original Judge to deal with the application and considered it herself; she dismissed it.
Held: (1) The word ‘practicable’ in Rule 35(3) of the 2004 Rules had to be construed bearing in mind the overriding objective and was not limited to cases in which the original Judge was dead, too ill or beyond the reach of electronic or telephonic communication. The Regional Employment Judge had to consider an issue of fact and degree; her decision could not be attacked other than on perversity grounds; she had reached a permissible decision.
(2) If that was wrong, the factual existence of impracticability was not a ‘precedent fact’ which, if not present, deprived the Regional Employment Judge of jurisdiction to deal with the application and rendered her decision a nullity, with the effect that any other grounds for rejection of the application were to be discounted. The analogy with administrative law cases was not appropriate. Impracticability was one but only one of the issues which the Regional Employment Judge had to consider. Manning v British Telecommunications Ltd applied.
(3) The Regional Employment Judge was entitled to reach the decision that an extension of time to apply for review should not be granted; she had considered the issue and had resolved it against the Claimant as she was entitled to do.
(4) In any event the unfair dismissal claim had been dismissed as a result of a binding agreement between the parties, pursuant to which the Claimant agreed not to make any further appeal or application. He disclaimed any intention of seeking to have the agreement set aside; it was still binding. There was no existing claim in the course of which the review application could be made.
By the second appeal, the Claimant appealed the decision of the previous President of the Employment Tribunal rejecting his claim to a preparation time order in respect of his preparation of the case. Held that that decision by the President was a judicial decision; but the appeal must fail for the reasons set out at (4) above.

Jeffrey Burke QC HHJ
[2015] UKEAT 0252 – 13 – 0602
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542326

The court was asked whether the Appellant Mr Stack was at the material time either an employee or a worker employed by the Respondent company. Mr Stack has lodged claims before the Employment Tribunal for constructive unfair dismissal and unauthorised deduction from wages.

Moore-Bick VP, Patten, Tomlinson LJJ
[2015] EWCA Civ 46
Bailii
England and Wales
Citing:
At CA (1) – Ajar-Tec Ltd v Stack CA 26-Apr-2012
The issue in this case is whether Mr Stack is either an employee or a worker employed by the appellant company. . .
At EAT – Ajar-Tec Ltd v Stack EAT 30-May-2014
EAT Jurisdictional Points : Worker, Employee or Neither – The Employment Judge was in error in finding the Claimant was employed under an express contract of employment as there was no consideration. He also . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 December 2021; Ref: scu.542266

EAT Trade Union Membership – The Certification Officer did not err in dismissing all but one Complaint of breach of the Rules of the National Union of Mineworkers (‘NUM Rules’) and in some Complaints of Section 47(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) made by a member of the National Union of Mineworkers arising out of the election of another member as Yorkshire Area Agent and the Complainant’s exclusion from candidacy for the post of National Secretary. Whilst the CO erred in his construction of Rule 5A(iii) of the NUM Rules by holding that lay National Officials were entitled to full membership even if they were not employed by the Union or an Area, he did not err in law or come to a perverse conclusion in deciding that the National Secretary whose election was challenged was employed under an express or implied contract to carry out administrative duties for the Yorkshire Area and so was entitled to full membership of the Union. The Certification office erred in including in the Enforcement Order on Complaint 1 text which formed no part of remedying the breach of Rule which he found to have occurred. TULRCA Section 108B applied.

Slade DBE J
[2015] UKEAT 0079 – 14 – 0202
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 47(1)
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542205

EAT Unfair Dismissal : Constructive dismissal – breach of contract – affirmation
The Employment Tribunal applied correct principles of law to the question of affirmation: WE Cox Toner (International) Limited v Crook [1981] ICR 823 and Hadji v St Luke’s Plymouth [2013] UKEAT/0095/12 applied. No special principles apply in the case of an employee who alleges that the employer’s repudiatory conduct amounts in effect to demotion. Bashir v Brillo Manufacturing Co Limited [1979] IRLR 295 and El-Hoshi v Pizza Express Restaurants [UKEAT/0857/03] discussed and explained. Observations on the significance of acceptance of sick pay in deciding whether a contract of employment has been affirmed.
The Employment Tribunal was not perverse in rejecting the Claimant’s case that she was too unwell to resign.

David Richardson HHJ
[2015] UKEAT 0539 – 13 – 3001
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.542028

EAT Jurisdictional Points : 2002 Act and Pre-Action Requirements – PRACTICE AND PROCEDURE – Costs
Statutory Grievance Procedure compliance was raised for the first time at the start of the substantive hearing by the Respondent. The Employment Tribunal allowed the point to be taken and upheld it. Permissible approach; see Glasgow v Cross; Fraser, cf. Sandwell (Elias J) obiter remarks. Appeal dismissed.
Point raised in the appeal arguable. No costs ordered in the appeal despite the Respondent’s offer not to enforce the Employment Tribunal costs award if the appeal is withdrawn.

Peter Clark HHJ
[2014] UKEAT 0309 – 14 – 1112
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541962

EAT Unfair Dismissal : Constructive Dismissal – The Appellant contended that she had been constructively dismissed. In particular an issue arose as to whether the failure to follow the grievance procedure amounted to a fundamental breach of contract and if so had the Appellant affirmed the contract. First, there was a lack of clarity in the reasoning of the Tribunal. In particular, it was unclear whether or not the Tribunal found that the failure to follow a grievance procedure amounted to a fundamental breach of the implied term of trust and confidence amounting to a repudiation of the contract. Secondly, if the Tribunal had found such a fundamental breach, then the Tribunal had not determined whether or not the employee had affirmed the contract. If the Tribunal determined that the employee had not affirmed the contract, then the Tribunal would have to determine if the breach played a part in the decision to resign and did not do so.

Lewis J
[2014] UKEAT 0265 – 14 – 0212
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541961

EAT Practice and Procedure : Compromise – A compromise agreement containing a term (clause 5(a)) that: ‘The Employer agrees not directly or indirectly to publish or otherwise make any statement in respect of you which is intended to or might reasonably be expected to damage your reputation or be detrimental to or otherwise critical of you’ is not void because the employer intends to and does report the dismissal of an employee, a teacher, for gross misconduct to the Independent Safeguarding Authority as required by the Safeguarding Vulnerable Groups Act 2006, section 6.

Supperstone J
[2014] UKEAT 0251 – 14 – 1411
Bailii
Safeguarding Vulnerable Groups Act 2006 6
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541960

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – Having made findings of fact relevant to the wrongful dismissal case before her, the Employment Judge drew on those findings in determining the unfair dismissal claim. In so doing, she substituted her own view as to whether the Claimant was guilty of the alleged misconduct for which he was dismissed rather than considering whether the Respondent had reasonable grounds for such belief. She further substituted her view as to the appropriate sanction when she found that dismissal fell outside the range of reasonable responses and that a written or final written warning would have been an appropriate sanction. In the circumstances, the conclusion that the Claimant had been unfairly dismissed was unsafe.
Appeal allowed; unfair dismissal claim remitted to a differently constituted Employment Tribunal.
On the Respondent’s application for costs under Rule 34A(2)(a) Employment Appeal Tribunal Rules 1993 (as amended), allowing that the Employment Appeal Tribunal was given a broad discretion whether to make such an award, here it was relevant that the Notice of Appeal had included a challenge on the ground of perversity that was not pursued at the hearing. Further, whilst the Respondent had succeeded on the grounds pursued, the Claimant was of limited means and might have been eligible for fee remission had he been the Appellant. In the circumstances, no costs order made.

Eady QC HHJ
[2014] UKEAT 0243 – 14 – 2411
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541959

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Reasonableness of dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke – The Claimant was dismissed for three matters. In one of these (probably the most serious) the investigation was seriously flawed; and a second was raised with the Claimant for the first time at the disciplinary hearing itself. The Employment Judge thought that the third was one which the Respondent was entitled to view as gross misconduct, and held the dismissal not unfair; but the evidence before the Tribunal was that the employer did not view it as sufficiently serious. Evidence was given by the Respondent that the second was serious enough to merit dismissal, but the Employment Judge did not deal with the procedural criticisms made in the ET1, nor accept that was the Respondent’s view, nor evaluate it.
Held: the Employment Judge should have applied section 98 Employment Rights Act and had regard to the actual reasons the employer had for dismissal, rather than the justifiable reasons he could have had; the actual reasons included the first matter, and needed to be viewed and evaluated as a whole and not by isolating artificially those parts in respect of which the procedure was less troubling from the whole. Remitted to a fresh Tribunal. Observations made about the proper approach where an employer actually relies on a number of distinct grounds for dismissal but an Employment Tribunal considers only some are justified (substantively or procedurally).

Langstaff P J
[2014] UKEAT 0310 – 14 – 0512
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541964

EAT Race Discrimination: Indirect – This is an appeal against a decision of the employment tribunal dismissing a claim for indirect discrimination. The case concerned the remuneration paid to different categories of members of the Parole Board. For a period between November 2009 and 1 April 2014, the Secretary of State determined that retired judges serving as members of the Parole Board and who chaired oral hearings were to be paid a higher fee than non-judicial members who chaired certain oral hearings. All the retired judges were white. The Appellant, who was a non-judicial member of the Parole Board, was black. He contended that the fixing of a higher fee for the retired judges constituted indirect discrimination as it amounted to a practice which put persons who shared his protected characteristic (race) at a particular disadvantage as compared with persons who did not share that characteristic. The employment tribunal found that the practice did not fall within section 19 of the Equality Act 2010 as the Appellant was the only black non-judicial member appointed to chair oral hearings and the Appellant had not demonstrated that there was any other person sharing the Appellant’s protected characteristic whom the practice put, or would put, at a particular disadvantage. Further, the tribunal decided that there were material differences between the circumstances of the cases of retired judges and non-judicial members. Furthermore, the tribunal considered that, in any event, the practice of paying an increased fee to retired judges serving as members of the Parole Board was objectively justified in the particular circumstances of the case.
On the first issue, the determination by the Secretary of State to pay a different, and lower, fee to retired judges serving as members of the Parole Board put, or would put, a non-judicial member sharing the protected characteristic of the Appellant at a particular disadvantage when compared with persons not sharing that characteristic. The question was whether there was a non-judicial member of the Parole Board (not whether there was a non-judicial member appointed to chair) who shared the Appellant’s protected characteristic at the material time. The Tribunal did not address that issue. In any event, however, the tribunal were entitled to find on the facts that there were material differences between the circumstances of the retired judges and the non-judicial members. Only the former were eligible to sit on cases involving prisoners sentenced to life imprisonment and the work that the retired judges did, and the qualifications and skills they had, were materially different from those of the non-judicial members. The tribunal were also entitled to find that the increase in remuneration for retired judges was objectively justified as it was both an appropriate and necessary means of achieving the legitimate aim of reducing the backlog of oral hearings involving prisoners sentenced to life imprisonment and imprisonment for public protection.

Lewis J
[2015] UKEAT 0323 – 14 – 2801
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541958

EAT Unfair Dismissal: Contributory Fault – Polkey deduction
The Claimant succeeded on an unfair dismissal claim.
The Employment Judge made a finding of serious misconduct against him in the context of considering a Polkey/conduct reduction and a claim of wrongful dismissal.
That finding was based on reasoning which was flawed and inadequate in three ways which amounted to an error of law:
(1) The Employment Judge failed to spell out exactly what the misconduct was and consequently failed to address or even acknowledge the full consequences of his finding;
(2) The Employment Judge relied in part on a particular factual matter which was agreed on all sides to be wrong and arose from an error made by the Respondent’s Counsel;
(3) The Employment Judge relied on a matter in the course of his reasoning which, although it could have properly been taken into account in considering the Claimant’s credibility, was not directly relevant to the serious misconduct in question.
The matter should be remitted to another Employment Judge.

Shanks HHJ
[2014] UKEAT 0529 – 13 – 2811
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541543

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other
The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the Respondent depot they had to attend to load up was situated in Wednesbury. Their contracts stipulated that their place of employment was in Wednesbury.
The cost of commuting each day in their transport was too great for the Claimants and in order to accommodate the Respondent agree to make available secure parking for their HGVs in Stockport near their homes. They would drive from their homes to Wednesbury each day and the journey to and from Stockport was treated as part of their working day for which they were paid. It was accepted that this arrangement had become a term of their contracts of employment. All the other HGVs were parked overnight at the depot in Wednesbury. A time came when the Respondent felt it could no longer afford to pay for the secure parking in Stockport and gave notice to the claimants that it was terminating the arrangement. The parties were not able to agree on a compromise that would enable the claimants to commute to Wednesbury each day without having to use the secure parking in Stockport.
The Respondent therefore determined in the absence of agreement to dismiss the Claimants. Initially the proposed ground was SOSR but in the event the reason for dismissal was redundancy.
The Respondent sought to argue that there was a redundancy situation because the basis that Stockport was the Claimants’ place of work rather than Wednesbury. The Respondent had sought to argue that as the Respondent no longer wished the Claimants to keep their lorries at Stockport, its requirement for lorry driving in Stockport had diminished and the case was therefore within the meaning of section 139 (1)(a)(ii) of the Employment Rights Act 1996. Employer ceasing ‘to carry on . . business in the place where the employee was . . employed’. Therefore there was a redundancy situation. The Employment Tribunal rejected the Respondent’s case on the basis that the Claimants’ place of work was not in Stockport but in Wednesbury because that was where their working day began and ended.
The Employment Appeal Tribunal upheld the decision. It derived the following propositions from the authorities as to the meaning of the phrase ‘the place where the employee was . . employed’.
1. In cases of someone like a delivery driver, who has no fixed place where he carries out his duties, in determining the place where he was employed within the meaning of section 139, it is proper but by no means conclusive to have regard to the contractual provision.
2. It is appropriate to consider, depending on the facts of the case, any connection he may have with a depot or head office or something like that.
Both of those matters were highly relevant in the instant case. The Claimants both had a close connection with the Wednesbury depot. That is where they had to take their lorries every day to be loaded and that is where their instructions came from and to where they reported.

Serota QC HHJ
[2014] UKEAT 0219 – 14 – 1311
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541539

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – The Employment Tribunal dismissed the Claimant’s claims. The Claimant did not appeal that decision.
The Respondent applied for costs. The Claimant applied for an order that the Employment Tribunal recuse itself from hearing the costs application on the ground of apparent bias arising from, inter alia, the content and tone of questions and comments made by one of the members during the substantive hearing.
The Employment Appeal Tribunal concluded on balance that the content and tone of the member’s questions and comments had been as described by the Claimant and that they gave rise to an appearance of bias which meant that, notwithstanding that he had not appealed against the substantive decision, the Employment Tribunal ought to have recused themselves from hearing the costs application.

Shanks HHJ
[2014] UKEAT 0266 – 14 – 1411
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541540

EAT Practice and Procedure : Amendment
Respondents to appeal permitted to amend Answer to raise new points not raised below. Exceptional course taken to allow EC/ECHR points to be taken for the first time on appeal; see e.g. Stringer [2009] ICR 985, paragraphs 57 to 58.

Peter Clarke HHJ
[2014] UKEAT 0234 – 13 – 1911
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541542

EAT Jurisdictional Points: Working Outside The Jurisdiction – The Claimant moved to Australia, with the consent of the Respondents for family reasons and there continued to work remotely wholly and exclusively for the Respondents’ London operation. The Employment Judge held that the Employment Tribunal had no jurisdiction to entertain her Employment Rights Act claims. The Claimant’s appeal is allowed and jurisdictional ruling reversed.

Peter Clarke HHJ
[2014] UKEAT 0252 – 14 – 0212
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541547

EAT Unfair Dismissal – Practice and Procedure : Reasonableness of Dismissal : Appellate Jurisdiction : Perversity
The finding of fair dismissal on performance capability grounds challenged on ‘Meek’ and perversity grounds. The reasons were adequate. The Employment Tribunal conclusion was permissible. Appeal dismissed.

Peter Clark HHJ
[2014] UKEAT 0089 – 14 – 2507
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.541536

Sedley, Rimer LJJ, Sir Scott Baker
[2010] EWCA Civ 870
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.421113

EAT SEX DISCRIMINATION: Other losses
UNFAIR DISMISSAL: Compensation
Appeal allowed on various issues of calculation of remedy where the Employment Tribunal did not set out the relevant evidence to justify its conclusions.

[2009] UKEAT 0075 – 08 – 0402
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.280454

[1996] UKEAT 970 – 95 – 2203
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.208280

[1996] UKEAT 474 – 95 – 2601
Bailii
Wages Act 1986
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.208071

[1994] UKEAT 264 – 93 – 0802
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.209739

[1994] UKEAT 831 – 94 – 2510
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.210208

[2002] UKEAT 386 – 00 – 1004
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.202746

Jurisdictional Points – Worker, employee or neither – WORKING TIME REGULATIONS
The Employment Tribunal did not err in law in finding that the Claimants were limb (b) workers and that the time spent logged on other than break times was ‘working time’.
The claimants were drivers working for Addison Lee’s PHV business. Almost invariably they used a vehicle hired from Eventech Ltd, an associated company of the respondents. The vehicles were in Addison Lee livery. Each driver was given a hand held computer known as an XDA. When ready to work the driver would use the XDA to log on to the respondent’s computer system which could locate the XDA and the vehicle. Allocation of jobs was automatic. When a job was notified to the driver he had to accept it forthwith or give an acceptable reason for not doing so. If the controller deemed the reason to be unacceptable, the matter was referred to a supervisor and a sanction might follow.
Each driver had a Driver Contract with the respondent. It provided (more than once) that the driver agreed he was an independent contractor and that nothing in the agreement rendered him an employee, worker, agent or partner of the respondent.

David Richardson HHJ
[2018] UKEAT 0037 – 18 – 1411
Bailii
England and Wales
Cited by:
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 December 2021; Ref: scu.630732

The employment tribunal erred in striking out a claim of constructive unfair dismissal at a preliminary hearing. The claimant alleged that multiple incidents occurred over a period of about ten months which together amounted to a cumulative breach of the implied duty of trust and confidence. There were a number of material disputes of fact. The tribunal cited, but failed to apply, the stringent test for a strike out. The tribunal failed to keep in mind that failure to resign in response to earlier incidents may not be fatal to such a claim, if there are then further incidents that could also contribute to a breach of the implied duty: Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1. Taken at its highest, the complaint was arguable and could not properly have been struck out.
The tribunal did not, in all the circumstances of the case, err in refusing an application to amend, in respect of a complaint of sexual harassment that was discrete and significantly out of time. The tribunal did err in refusing an application to amend in respect of a complaint of victimisation, including by constructive dismissal. The factual conduct said to amount to a protected act (a grievance alleging sexual harassment), and the factual conduct said to amount to victimisation, were already pleaded. The claimant had not hitherto pleaded that that conduct was because of the protected act, which was an essential component of a complaint of victimisation. However, the tribunal failed to consider, or explain if it had considered, what the impact of allowing the amendment would be on the evidential scope of the claims and the hearing. The matter was remitted to the tribunal to consider the application afresh.

His Honour Judge Auerbach
[2021] UKEAT 2019-001201
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.670146

The claimant and his manager worked in sales/marketing. The manager became disabled with cancer. A decision was taken to cease the work done by the manager and the claimant, resulting in both being dismissed. The Tribunal determined that the burden of proof had shifted to the respondent to show that it had not discriminated against the claimant because of his manager’s disability. The Tribunal gave insufficient reasons to explain why the burden had shifted. The Tribunal, on its limited analysis, having determined that the burden had shifted, erred in law in holding that the burden had been discharged, particularly in circumstances in which the decision maker was not called to give evidence. The Tribunal further erred in holding that for a disability such as cancer, deemed or actual knowledge of the disability requires that there has been a medical diagnosis. The matter is remitted to a differently constituted employment tribunal to consider the date upon which the employer had actual or deemed knowledge of the manager’s disability and whether the claimant was discriminated against because of his manager’s disability.

[2021] UKEAT 2020-000349
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.669826

The claimant (Bradley) and his brother (Ben) were the co-directors of and 40/60 shareholders in the respondent which was a small family company. Bradley worked as site manager at a company site. The brothers were each paid an equal ‘salary’ agreed between them (latterly pounds 1,500 per month) and had PAYE and NI deducted/paid in respect thereof, but the EJ found that this was done on the advice of company accountants for tax reasons without any positive input by either brother. They also agreed between them on the amount of dividends to be paid at the end of the year in accordance with their shareholdings. There was no written employment contract or other record relating to Bradley’s status.

In June 2018 a dispute arose and in due course Bradley brought employment tribunal claims for unfair dismissal, notice pay, unlawful deductions and holiday pay. The EJ decided at a PH that he was not an employee or otherwise a worker for the purposes of s 230 of ERA 1996 and that his claims were therefore unsustainable.

The EAT rejected Bradley’s appeal which was brought on three grounds:

(1) Although there is no reason in principle why a director/shareholder of a company cannot also be an employee or worker, it does not necessarily follow that simply because he does work for the company and receives money from it he must be one of the three categories of individual identified in s 230(3);
(2) It had been open to the EJ to find that Bradley had a right to substitute another to act as site manager in his place based on Ben’s evidence at the hearing that he would have no problem with that and notwithstanding that the issue never arose in practice;
(3) The EJ had not made the error of regarding Bradley’s status as a director and/or shareholder as being mutually exclusive with status as an employee. The level of Bradley’s control over the company and the fact that he shared with Ben in the risk as to the company’s success were referable to his status as a director/shareholder and not directly relevant to the question whether he was an employee or worker but they formed part of the ‘backdrop’ and had not had any significant influence on the EJ’s decision.
Overall, the EJ’s conclusion that Bradley was not an employee or worker was one of fact based on relevant factors and was not perverse.

Hh Judge Shanks
,
Mr H Sing
,
Mr D G Smith
[2021] UKEAT 2020-000123
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.670376

The claimant in the tribunal is a professional interpreter who provided services to two police forces via the supplier which held the language services contract. She raised a number of concerns about the way in which those services were being procured and provided, which were found to be protected disclosures. She complained that she had been subjected to detrimental treatment on the ground that she made those disclosures. As framed by her, there were eight such complaints. The tribunal found that in five instances the conduct complained of did not entail the claimant being subjected to a detriment. In three, it did, but the conduct complained of was found not to have been on grounds of the protected disclosures. The tribunal’s decision was challenged as being not Meek-compliant in respect of all eight complaints. The appeal succeeded in respect of three of the complaints, where the tribunal had failed to explain why the conduct was not regarded as amounting to detrimental treatment, and a further pair of complaints, where the tribunal had not addressed the core of the claimant’s case as to why the conduct was because of her protected disclosures. The decision in respect of the other complaints was Meek-compliant.

[2021] UKEAT 2021-000406
Bailii
England and Wales

Employment

Updated: 27 December 2021; Ref: scu.669835

[2000] UKEAT 727 – 00 – 2711
Bailii
England and Wales

Employment

Updated: 25 December 2021; Ref: scu.265749

The order of an employment judge striking out a claimant’s claim because of a failure to provide a schedule of loss was quashed where (1) the failure was because of the illness of the claimant’s legal advisor, (2) the claimant was not told that the striking-out was being contemplated and was not given an opportunity to make submissions, (3) the final hearing of the claim was not imminent and there was about to be a preliminary hearing at which the problem could have been addressed and (4) upon a reconsideration, the employment judge was given the mistaken impression that the schedule had still not been provided.

[2021] UKEAT 2019-001272
Bailii
England and Wales

Employment

Updated: 25 December 2021; Ref: scu.669823

The claimant worked as a driver for the respondent from February to September 2016. His claims included a claim that he had been underpaid the National Minimum Wage, and claims for holiday pay and of wrongful dismissal.

At a preliminary hearing the tribunal determined that the claimant was an employee. At a further preliminary hearing, in November 2019, the tribunal gave judgment by consent in relation to the holiday pay claim. The present appeal related to decisions made at a further preliminary hearing in February 2020. The EAT held as follows.

(1) The tribunal had erred by not treating payments made by the claimant to rent his vehicle as reductions, when calculating what he had been paid, for the purposes of his NMW claim. They were clearly expenses ‘in connection with’ the employment for the purposes of regulation 13 National Minimum Wage Regulations 2015.
(2) The same applied in respect of the costs of his uniform.
(3) The tribunal did not err by failing to make a declaration that the claimant’s claim for holiday pay was well-founded. That claim had been disposed of by a judgment given by consent at an earlier hearing pursuant to rule 64. The tribunal had not adjudicated that it was well founded, and, in any event, that judgment could not subsequently be revisited.
(4) The tribunal had erred in dismissing the claimant’s claim for consequential losses (section 24(2) Employment Rights Act 1996) on a factual basis that was mistaken. The claim was ambitious, but needed to be considered afresh by the tribunal on the correct factual basis.
(5) The tribunal did not err in not holding that the respondent was estopped from asserting a different figure for a week’s pay, for the purposes of the NMW, from that which underpinned the calculation of the holiday pay figure which was awarded at the November 2019 hearing. The tribunal had not, at that hearing, adjudicated the amount of a week’s pay, and the judgment by consent stated in terms that the respondent was conceding the holiday pay award only. Nor had the tribunal erred by not revisiting the holiday pay award in light of its determination of the amount of a week’s pay for the purpose of the NMW claim. There was no basis to revisit that award, which had been made in the amount specified by consent.
(6) The tribunal had not erred in concluding that the figures put forward by the respondent for what the claimant had been paid, took account of cancellations and no shows. There was conflicting evidence on the point, and the tribunal considered the state of the evidence on both sides to be unsatisfactory. The assessment of that evidence (or lack thereof) and issues of credibility were a matter for the appreciation of the tribunal. It did not overlook where the burden of proof lay. The EAT could not interfere in its determination on this point.
(7) The claimant had applied for the award of compensation for wrongful dismissal to be enhanced on the basis that the ACAS Code on Disciplinary and Grievance Procedures applied but had not been followed. The tribunal had erred by not considering that issue, and would need to so on remission.

[2021] UKEAT 2020-000383
Bailii
England and Wales

Employment

Updated: 25 December 2021; Ref: scu.669825

The claimant is a dentist. The claimant contended that he was a worker and so entitled to holiday pay. The parties accepted the claimant had entered into a contract with the respondent whereby he undertook to do or perform personally work or services for the respondent. The employment tribunal concluded that the claimant was self-employed and so was not a worker. The employment tribunal erred in law by failing properly to analyse whether the claimant fell outside the definition of a worker because he (1) carried on a profession or business undertaking in respect of which (2) the respondent was by virtue of the contract a client or customer.

His Honour Judge James Tayler
[2021] UKEAT 2020-000023
Bailii
England and Wales

Employment

Updated: 25 December 2021; Ref: scu.670147

EAT Transfer of Undertakings: Entity – TRANSFER OF UNDERTAKINGS – Transfer
UNFAIR DISMISSAL – Compensation
UNFAIR DISMISSAL – Mitigation of loss
UNFAIR DISMISSAL – Polkey deduction
In deciding whether Claimants have been assigned to an organised grouping of employees within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 the Employment Judge failed to consider the organisational structure of the putative transferor and the role of the claimants, including their contractual obligations, within it (Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ECR 519)
In applying Polkey the Employment Judge speculated that the putative transferee would not have terminated its contract with the service provider if they had appreciated that TUPE would apply. This was the wrong approach to Polkey and was not based on evidence.
The Employment Judge failed to deal with or, if he considered it, to give reasons for rejecting an argument on causation of loss raised by the Respondent.
Insufficient reasons were given for decisions on mitigation of loss.

Slade DBE J
[2014] UKEAT 0169 – 14 – 1912
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.540353

EAT Unfair Dismissal: Reasonableness of Dismissal – Claim of unfair dismissal for conduct reason relating to misuse of Twitter.
Application of section 98(4) Employment Rights Act 1996 and the range of reasonable responses test, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439.
Appeal on basis: (1) the Employment Judge had fallen into error of substitution mindset; and/or (2) had reached a conclusion that was perverse.
Appeal allowed: the Employment Judge had erred in substituting his view for that of the reasonable employer and/or had reached conclusions that were either inconsistent given earlier findings or failed to take into account relevant matters or were simply perverse. The EAT did not consider, however, that only one outcome was possible in this case and thus ordered that the matter should be remitted to a new ET for determination of the application of the range of reasonable responses test to the question of disciplinary sanction.
Declined to lay down fresh guidance for future unfair-dismissal cases involving alleged misuse of social media. Cases were likely to be fact-sensitive and the relevant test would continue to be that laid down in Iceland Frozen Foods.

Eady QC HH
[2014] UKEAT 0188 – 14 – 0311
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.540266

EAT Unfair Dismissal: Reasonableness of Dismissal – The Claimant was dismissed by reason of (a) capability in performing his job, (b) loss of external accreditation necessary for the job and (c) absence of suitable alternative employment. The Employment Tribunal found dismissal for that (capability) reason unfair on two grounds relating to (a) only. Wrong approach under section 98 Employment Rights Act. Appeal allowed. Unfair dismissal claim dismissed.

Peter Clark HHJ
[2014] UKEAT 0215 – 14 – 1311
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.540264

EAT Practice and Procedure – Appeal challenged the asserted failure of an Employment Judge to recognise or exercise a discretion to extend time for seeking Written Reasons for a Judgment delivered orally. The correspondence from the Employment Judge, viewed fairly, demonstrated that he had recognised that discretion to extend time existed, and exercised it against the Claimant.
Further challenges to the exercise of the discretion to extend time, on the basis of misdirection in law and Wednesbury unreasonableness, also failed.

Simler J
[2014] UKEAT 0173 – 14 – 2110
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.540262

EAT Unfair Dismissal : Reasonableness of Dismissal – HARASSMENT – Conduct
Appeal permitted to proceed on two grounds. First, having found a potentially fair reason for dismissal (SOSR), did the Employment Tribunal consider fairness under section 98(4) Employment Rights Act? They did. Secondly, did they treat a remark about pregnancy as a complaint of sexual harassment as well as direct discrimination? They did. Appeal dismissed.

Peter Clark HHJ
[2014] UKEAT 0106 – 14 – 0412
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.540269