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

EAT Unfair Dismissal : Procedural Fairness/Automatically Unfair Dismissal – Polkey deduction
The Employment Judge found that the Claimant had been unfairly dismissed and that there should be no Polkey deduction.
She erred in three respects:
(1) she wrongly found that the reason for the dismissal was not potentially fair, when on any view it was a reason relating to the Claimant’s conduct;
(2) she adopted a flawed approach to the question of whether the dismissal was fair under section 98(4) Employment Rights Act;
(3) having implicitly found that a fair procedure may have resulted in the Claimant’s dismissal, she decided wrongly that it was not open to her to make a Polkey reduction.

Shanks HHJ
[2014] UKEAT 0212 – 14 – 0512
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.540270

EAT Unfair Dismissal – HUMAN RIGHTS – WORKING OUTSIDE THE JURISDICTION – An employee of a bank made allegations of financial malpractice, and was dismissed. He was Italian, and both lived and worked in Singapore. The contract under which he worked was subject to Singaporean law. The only connection his case had with the UK was that that was where the head office of the Bank was.
It was accepted that if his claim had been one of ‘ordinary’ unfair dismissal, the test to determine whether the ERA 1996 applied (extra-territorially) would be whether the Claimant’s employment had a sufficiently strong connection with Great Britain and with British employment law, and he could not meet it. It was argued however that where the claim was for the suffering of a detriment, or dismissal, on the grounds that the employee had made a public interest disclosure, a ‘looser’ test should apply, such as would permit the Claimant to rely on the protective provisions of the 1996 Act. An ET rejected this argument.
On appeal, it was submitted that the EJ was in error by failing to apply the principle in Bleuse v MBT, and had failed to consider what Parliament might reasonably be taken to have indicated should be the position. The right to freedom of expression, guaranteed by Art. 10 ECHR was part of UK Law not least because the EU Charter applied, and Art. 11 of it adopted Art. 10 ECHR; and this freedom involved not only a right to express but a right to listen, which in the case of a disclosure made abroad concerning a British bank therefore involved the rights of UK citizens to hear it.
The appeal was rejected. Bleuse did not apply, since neither the ECHR nor EU Law applied in Singapore; nor did the claim involve a directly effective right. There was no sufficient reason to treat the ERA as extending extra-territorially such that whistle-blowing detriments or dismissals fell within its scope whilst other dismissals did not. Parliament inserted the relevant provisions into the ERA 1996 at a time when all such rights were subject to an express geographic limitation: the implied limitation should be no different in the present case from that applied in Ravat.

Langstaff P J
[2014] UKEAT 0181 – 14 – 0512, [2015] ICR 436, [2015] IRLR 271
Bailii
Employment Rights Act 1996
England and Wales
Citing:
Cited – BP Plc v Elstone and Another EAT 31-Mar-2010
EAT JURISDICTIONAL POINTS
VICTIMISATION DISCRIMINATION: Protected disclosure
The central question in this appeal was whether an employee/worker who complained of suffering a detriment from his current . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 December 2021; Ref: scu.539746

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity
Apparent bias:
Employment Judge’s interventions giving rise to an appearance of bias. In particular, his questions of the Appellant’s first witness lasted some 1 .5 hours, compared to the 1 hour of cross-examination by the employee’s legal representative. His interventions included reminding the witness of her oath in a manner more suggestive of cross-examination than simply a clarification of the meaning of the oath. Further interventions included calling for a document to be adduced into evidence by the Appellant, apparently to make good a point for the employee’s case that the employee was not in fact seeking to make herself. Further exchanges with another of the Appellant’s witness suggested that the Employment Judge was cross-examining the witness rather than simply seeking to clarify her evidence (i.e. pushing for a ‘yes or no’ answer; putting a point some 4-5 times).
Applying the test in Porter v Magill [2002] 2 AC 357, HL, that, having ascertained the relevant circumstances, the court should ask itself whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, and allowing that those circumstances might include a certain degree of confusion and uncertainty in the Appellant’s case and in its witnesses’ answers, the EAT considered that the Employment Judge in this case had crossed the line and descended into the arena such as to cause the fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased.
Appeal allowed. Case remitted to new Employment Tribunal for re-hearing.

Eady QC HHJ
[2014] UKEAT 0165 – 14 – 1610
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539616

EAT Practice and Procedure: Striking-Out/Dismissal – Bias, misconduct and procedural irregularity – The Claimant failed to comply with an unless order to exchange witness statements. Through her representative she maintained that position at the Preliminary Hearing held to consider her relief from sanction application. Relief permissibly refused. – The bias allegations directed to the Employment Judge were unarguable. – Consequently the appeals are dismissed at the Preliminary Hearing stage.

Peter Clark J
[2014] UKEAT 0515 – 13 – 0711
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539618

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination – UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Costs
Whether time for bringing a whistle-blowing complaint (short of dismissal) commences under section 48(3) when the employer’s decision is made or when the Claimant learns of it. Held; the former.
Mensah; Virdi (EAT); Garry; Warrior Square (CA) considered and followed. Havill and Aniagwu (EAT) not followed; Barratt (SC) on effective date of termination distinguished.
Constructive dismissal claim permissibly struck out and costs ordered.
The Claimant’s appeal is dismissed.

Peter Clark HHJ
[2014] UKEAT 0501 – 13 – 0412
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539619

EAT Sex Discrimination – INJURY TO FEELINGS AWARD
Appeal allowed and – the Appellant consenting to this approach – the sum of andpound;6,000 substituted as the award for injury to feelings in place of the Employment Tribunal’s award of andpound;12,000.
Recognising that that Employment Tribunal was best placed to assess the injury to feelings in any particular case and should be permitted a considerable margin in carrying out this assessment; awards for injury to feelings generally would not be susceptible on appeal unless manifestly excessive or wrong in principle.
That said, in a case where the Claimant had put the level of award she was seeking under this head as falling towards the upper end of the lowest band in Vento (No 2), whilst the Tribunal was not bound by that, the Respondent was entitled to understand what factors had persuaded the Tribunal to then make an award falling in the middle band.
Awards for injury to feelings should serve to compensate for that injury and should not be used as a means of punishing respondents or deterring them from particular courses of conduct, Ministry of Defence v Cannock [1994] IRLR 509. Further, a Tribunal should not allow its feelings of indignation and outrage towards a Respondent to inflate the award, see e.g Corus Hotels plc v Woodward and Anr UKEAT/0536/05/LA.
Whilst the Reasons did not disclose an attempt to punish the Respondent, the factors referred to would seem more naturally to support an award of aggravated damages but the Tribunal had not said that this was what it was doing. Otherwise the Reasons were inadequate to support such a high award in this case. With the Appellant’s consent, it was appropriate to substitute an award of andpound;6,000, which fell at the top of the lower Vento band.

Eady QC HHJ
[2014] UKEAT 0090 – 14 – 0108
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539394

EAT Practice and Procedure : Estoppel or Abuse of Process
The Claimant brought four claims, three in respect of unlawful deductions (one of which was successful, and the others compromised apparently on terms that the Claimant succeeded in full, and were then withdrawn) and one seeking pay statements (which were then provided without the need for litigation). At the time of each she could have brought a claim in respect of detriment caused by public interest disclosures she said she had made, but deliberately chose not to do so – she said, for a number of reasons which included her desire to keep her job, and resolve her differences through the grievance procedure or negotiation. She was dismissed – she made a fifth claim, that this was unfair and by reason of having made public interest disclosures. An Employment Judge regarded this as an abuse, and struck out those parts of the claim under the principle in Johnson v Gore Wood. In doing so, he appeared to place heavy emphasis on the delay in bringing the claims (which per Stuart v Linde is irrelevant in assessing abuse of this nature) and was wrong to do so; failed to ask what the effects on the employer would be (contrary to what may well have been his view, it was unlikely to free him from having to bring evidence about the issues raised in the struck-out portions of the claim, since it was likely anyway to be relevant to the dismissal claims); did not explain why he formed the view that the conduct was capable of amounting to harassment; and failed to show that he appreciated the very great difference in nature, in the circumstances, between the claims in respect of deductions on the one hand and the more complex and demanding claims involving whistleblowing on the other.
An appeal was allowed, and the case remitted.

Langstaff P J
[2014] UKEAT 0170 – 14 – 0511
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539395

EAT CONTRACT OF EMPLOYMENT – implied term/variation/construction of term
By a rule relating to transfer and promotion (‘the six week rule’) introduced into their contracts of employment by collective agreement in a new form in 2000 it was provided that Respondent’s employees would ‘ . . receive the pay and conditions of the new post when they move to it, but in any case, no later than six weeks after being informed of the selection’.
There was an issue of construction as to whether the phrase ‘pay and conditions’ in the six week rule included certain supplements introduced in 1999.
Taking account of all the relevant background material in accordance with Investors Compensation Scheme v West Bromwich Building Society [1998] 1 All ER 98 the proper construction was that it did include those supplements, contrary to the finding of the Employment Judge.

Shanks HHJ
[2014] UKEAT 0178 – 14 – 2611
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539352

EAT Unfair Dismissal – The three Claimants were dismissed without notice for being involved in a fight at the workplace with a fourth employee.
An Employment Judge considering their claims of unfair dismissal and failure to pay notice did not say what the employer’s conduct was in dismissing them, but instead set out the facts he found as to what had happened during the fight, and concluded in the light of that what he thought a reasonable investigation would have uncovered. He mis-stated the burden of proof twice; made a finding that there had been provocation, which was surprising since he did not find that there had been any violence by the Claimants which had been ‘provoked’ as a result, and nowhere indicated that his findings as to the actual events (as opposed to the employer’s perception of them) were related to the issues of whether the Claimants were entitled to be paid notice pay, or had been guilty of contributory conduct, because he made no express distinction between the law’s requirement that the actual facts be established in respect of the former, and the fact of what the employer thought when dismissing in respect of the latter. He also found that there was an inconsistency of penalty in that two other employees, who were also present during the fight, had not been dismissed, but did so without enquiring whether the employer reasonably thought they were or were not truly comparable, and, if the latter, did so on reasonable grounds. An appeal based on substitution was allowed, and the case remitted for complete rehearing before a different Tribunal.

Langstaff P J
[2014] UKEAT 0180 – 14 – 0710, [2014] UKEAT 0318 – 14 – 0710
Bailii, Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539298

EAT Contract of Employment : Implied Term/Variation/Construction of Term – CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Fairness
Wrongful Dismissal
Mere delay might be neutral in determining whether an employee can be said to have acquiesced in the case of an employer’s breach of contract or in deciding whether or not an employee has accepted a change to a contractual term but this case involved more than simply a unilateral change of one term of the Claimant’s contract. The Respondent did not purport to maintain the Claimant’s former contract subject only to a unilateral variation of her notice entitlement. It departed from that former contract and introduced an entirely new package, which encompassed not just the terms and conditions but also the job description and the handbook. Some of that had impacted on the Claimant straightaway. Knowing of the change in question to her notice period (a term which could have an immediate impact in terms of job security), she continued to work to the new contract for some nine years without objection.
In considering that time period, the Employment Tribunal was entitled to have regard to the Claimant’s position. She herself had held a trade union role. She was someone who could be expected to have regard to the detail of the terms and conditions and to raise queries if they arose.
Properly understood, the wrongful dismissal appeal was one of perversity. It did not meet the high test laid down so as to make good that challenge.
Unfair Dismissal
The sole point permitted to proceed to Full Hearing was concerned with the involvement of two particular individuals on a selection panel (for a potential alternative position in a redundancy exercise), against whom the Claimant had raised grievances.
The question of the composition of the panel was raised as an arguable point before the Employment Tribunal, which carefully scrutinised the evidence on that question. It was satisfied that the Claimant’s concerns were unfounded: the composition of the selection panel was neither unreasonable, nor did it impact in any way on the fairness of the selection process. On those findings of fact, there was no proper point raised by this part of the appeal.
Appeal dismissed.

Eady QC HHJ
[2014] UKEAT 0120 – 14 – 0610
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539300

EAT Unfair Dismissal – Three appeal points remained after others were dismissed at a Rule 3(10) hearing. They were rejected. An Employment Tribunal could not be expected to consider issues which had not been clearly presented as such to it, when ruling on the very issue which had been identified before it as the relevant issue.
Nor did its conclusion on a point about sickness absence indicate that it had wrongly mixed up a version of the employer’s attendance policy at the relevant time with a later edition.
Nor was it obliged to consider the resources and size of the undertaking where no point had been made to it that they were such as to make dismissal unfair because it was said an alternative of redeployment should and could have been imposed. That point was not made, and an Employment Tribunal did not in the context of this case have to raise it for itself. It gave sufficient Reasons why it thought dismissal was not unfair.

Langstaff P J
[2014] UKEAT 0007 – 14 – 2411
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539304

EAT Unfair Dismissal : Polkey Deduction – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The appeal took issue with the following aspects of the Judgment of the Employment Tribunal in this matter:
1) Unfair Dismissal – the finding that no compensatory award should be made given that a fair procedure would not have resulted in any different outcome and would have taken less time to complete than the period for which the Appellant had been paid to complete.
2) Unlawful Deductions of Wages – this claim (for andpound;5,400) was dismissed but with no Reasons being given.
Taking first the Polkey appeal, the approach taken by the Employment Judge solely had regard to the question as to how long a fair procedure might have taken. The point he did not address was whether there was a real chance that – had such a fair procedure been followed – the First Respondent might have concluded that the Claimant in fact had the right to remain in his employment. It was the Claimant’s case that, under immigration law, he continued to have the right to live and work in the UK and, had the First Respondent simply contacted UKBA and/or the Appellant’s Solicitors, it would (or should) have been so advised. That being so, it was an error to assume – as the Employment Judge had done – that a fair investigation/procedure would have made no difference. The presumption made by the Employment Judge meant that the relevant questions were not considered and, thus, the necessary findings of fact were not made. This was an error of law that vitiated the Employment Judge’s Judgment on compensation. The question of compensatory award under the unfair dismissal claim would need to be remitted to a new Employment Tribunal to be considered afresh.
On the question of the unlawful deductions claim, the difficulty was that simply no Reasons had been provided for the dismissal of this claim. This may well have been a simple oversight on the part of the Employment Judge but unfortunately he had since died and this matter was thus not capable of remedy under the Burns/Barke procedure. The appeal on this ground would similarly be allowed and the unlawful deductions claim remitted to be considered afresh by the new Employment Tribunal charged with determining the question of compensation for the claim of unfair dismissal.

Eady QC HHJ
[2014] UKEAT 0193 – 14 – 1510
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.539299

The ET applied the correct legal test of causation in a claim for detriments suffered during employment on the grounds of protected disclosures and reached decisions on these points which were open to it on the evidence. The ET’s decision, on the stricter test of causation applied to whether a dismissal was automatically unfair, was not inconsistent with those earlier decisions. The ET’s decision on constructive dismissal was adequately and correctly reasoned, bearing in mind the issues and the facts in the case. DPP Law v Greenberg [2021] EWCA Civ 672 applied.

[2021] UKEAT 2021-000268
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.669833

[2000] UKEAT 669 – 00 – 2811
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.265648

The appellant raised a grievance about his level of pay; following a meeting with the respondent’s management he was summarily dismissed. The appellant brought a claim for unfair dismissal under section 104 ERA. The respondent’s primary case had been that he was not dismissed but had resigned but the employment judge found that the appellant had been dismissed. But the employment judge decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason.
The EAT considered that, on all the evidence, the finding that the appellant had not asserted a statutory right was perverse and substituted a finding to the contrary. The finding as to the reason for dismissal involved errors of law in that (a) the employment judge had not asked himself why the respondent had decided to withdraw the concession, and (b) the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, when there were a number of submissions the appellant might have made if the matter had been raised (in particular relating to section 105 ERA).

[2021] UKEAT 2019 001183
Bailii
England and Wales

Employment

Updated: 24 December 2021; Ref: scu.669824

EAT Contract of Employment : Implied Term/Variation/Construction of Term – An operations manager in a small company was unhappy, for various matters which the Employment Tribunal thought were caused by the company. The proprietor called him to a meeting, at which he asked what the Claimant would take to go, and issued a veiled threat that if he did not agree to do so there might be disciplinary proceedings against him – for which, as the Employment Tribunal found, there would have been no reasonable and proper cause. An appeal on the basis that the Employment Judge had relied on the view/intention of the employer (which was to seek a parting of the ways) rather than anything the proprietor had actually done in the meeting, and had not analysed the facts by asking separately whether what had been done was likely seriously to damage or destroy the trust and confidence the employee had in the employer and whether there was reasonable and proper cause for it, was rejected on an holistic reading of the Written Reasons, as were grounds that the Employment Tribunal had taken into account matters it should not have done (it did not), had failed to say what its conclusion was on an issue in dispute (it did) and reached a Decision which was on one point perverse (withdrawn in argument). Appeal dismissed.

Langstaff P J
[2014] UKEAT 0186 – 14 – 0910
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.539295

EAT Practice and Procedure – Amendment
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
DISABILITY DISCRIMINATION – Disability
At a final hearing on 3 March 2014 in a claim of disability discrimination the Employment Tribunal suggested to the Claimant that he amend his claim and gave permission to do so to include a new claim for victimisation and two new claims of disability discrimination. The time for bringing claims in respect of these claims had long expired and the proceedings had commenced in May 2013. The hearing had already been adjourned on one occasion and was fixed for three days.
The Claimant was a litigant in person. The parties were ready for the final hearing and there was medical evidence and an impact statement from the Claimant as to the substantial or long term adverse effect of his disability (chronic insomnia) on ability to carry out normal day to day activities.
The Decision to allow the amendments was reversed because:
(a) Permission for the amendment was granted without the Employment Tribunal having required it to be formulated and particularised before deciding whether to grant permission and rejecting the Respondent’s request for particulars to be provided before deciding whether to grant permission.
(b) No explanation was given as to the delay in seeking permission as the relevant facts were known to the Claimant when proceedings were commenced.
(c) The amendment necessitated an adjournment and an extension of the hearing to five days. The Respondent now needed to call more witnesses thus extending the hearing.
(d) The Employment Tribunal had taken an irrelevant and incorrect consideration into account, namely that the Respondent should somehow have sought confirmation from the Claimant that he did not wish to make claims beyond those in the ET1.
The decision to direct a further medical report was unnecessary because it was no longer necessary for a Claimant to prove that he suffered from a clinically well-recognised illness and there was sufficient evidence of the substantial or long term adverse effect of the Claimant’s disability.
Late adjournments are to be avoided if at all possible. Hearing times are a precious commodity, not to be squandered by late adjournments. They cause expense and inconvenience to the parties and cause prejudice to the working of the Employment Tribunal system.

Serota QC J
[2014] UKEAT 0194 – 14 – 1310
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.539292

EAT Practice and Procedure : Striking-Out/Dismissal – Preliminary issues – Employment Tribunal judgment on preliminary issues on individual topics in complex and barely manageable cases should be upheld except in case of patent legal error.

Mitting J
[2014] UKEAT 0395 – 13 – 2407
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.539290

[2000] UKEAT 505 – 00 – 2510
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.265593

[2000] UKEAT 673 – 00 – 2410
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.265586

[2003] UKEAT 0609 – 01 – 0602
Bailii
England and Wales
Cited by:
Applied – S Singh, R Katechia S Dhillon J Bissember v Ford Motor Company Ltd P S Gill EAT 11-Jun-2004
The Employment Tribunal was wrong to conclude that its jurisdiction under section 13 of Employment Rights Act 1996 was ousted by section 14(1)(A) (purpose of deduction reimbursement in respect of overpayment of wages) or 14(5) (deduction made on . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 December 2021; Ref: scu.191379

[1999] UKEAT 1185 – 98 – 1404
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.205092

[1999] UKEAT 511 – 98 – 2704
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.205081

[1999] UKEAT 486 – 99 – 2204
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.205116

[1996] UKEAT 761 – 95 – 2401
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.208130

[1995] UKEAT 1170 – 94 – 1209
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.209308

[1997] UKEAT 1142 – 97 – 0512
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.208035

[2002] UKEAT 1273 – 00 – 2301
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.202453

EAT Transfer of Undertakings – TUPE Regulations 2006: reg 13(2).
The first respondent decided to outsource part of its activities to the second respondent. The claimant is a Trade Union, representing the workers affected by the transfer. It claimed that TUPE reg 13(2) was breached in that not all of the reasons for the decision to transfer were provided to it. The claimant had been in discussion with the first respondent about a pay rise. No agreement had been reached and the claimant asserted that the first respondent decided on the transfer because of the dispute, and because the managing director had stated that if no agreement was reached he would outsource the work. Further and in any event the information given to the claimant was not given long enough before the transfer to enable consultation between the claimant and the first respondent. The claimant sought a declaration and award of compensation under TUPE reg 12. The ET made the declaration on both counts and adjourned the question of remedy to a later hearing.
The first respondent appealed arguing that the ET had erred in law by deciding that the first respondent had a duty to consult, as provided for in reg 13 (6), despite no such argument being before it; that it erred in law in deciding that the first respondent had decided on the transfer due to the dispute or due to the managing director’s words; that it erred in law in deciding that the information provided was not provided long enough before the transfer to enable consultation. The second respondent supported the appeal.
The claimant argued that the ET was entitled to reach its decisions.
Held: The ET did not decide that the first respondent had a duty to consult under reg 13(6), that regulation not being engaged. The ET was entitled to find that the dispute and the intention expressed by the managing director were reasons for the decision. It was entitled to find that the reasons given did not include all of the reasons. The ET was entitled to find that the information was not provided long enough before the transfer to enable consultation between the claimant and the first respondent. Appeal refused.

Lady Stacey Hon
[2014] UKEAT 0002 – 14 – 3004
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538835

EAT Practice and Procedure – Bias, misconduct and procedural irregularity
An Employment Tribunal heard evidence and submissions on a preliminary issue of disability, and retired to consider its decision. It then researched the Internet, without prior reference to the parties, to ask a question about whether there had been no obvious prior issue between the parties (the Claimant being a litigant in person). It was unclear why it had done so, since what was found was of dubious relevance, though it may have appeared it was trying to find evidence which might favour the Claimant. Having returned into the hearing, it told the parties what it had found out. It then asked further questions, appearing to accept uncritically the accuracy and reliability of what had been discovered. It rejected an application to recuse itself, but did so in terms which, when added to those of comments made on an affidavit filed for the Appellants, indicated to the Appeal Tribunal that it had an animus toward the Appellant, not least by appearing prepared to criticise a consultant psychiatrist joint expert for not having approached his examination of the Claimant properly, when there was no evidential basis at all for this criticism.
The Employment Tribunal appeared to think it was free to conduct its own research into the facts surrounding what had happened.
Held: It should not have tried to obtain its own evidence; the role of an Employment Tribunal is accusatorial, and assisting litigants in person to give the best evidence they would wish to give to make their case should not be confused with making a case for such litigants which they have never tried to make. The Employment Tribunal here descended impermissibly into the arena, compounded that by making comments to the Employment Appeal Tribunal seeking to construct arguments (here in support of the Claimant) rather than stating facts, and appeared from what it said to be hostile to the Appellant. The appeal was allowed.
At one stage the Employment Tribunal said that what it had done by accessing the Internet had done no harm to anyone, whereas to the contrary it had exposed both parties to the costs and expense of an appeal, and significantly delayed the resolution of a case the Claimant wished to be resolved as soon as possible.
Observations made about the need for advocates before the Employment Appeal Tribunal to mark authorities to show the passages to be relied on.

Langstaff P J
[2014] UKEAT 0217 – 14 – 1710
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538836

EAT Unfair Dismissal – Conduct – Section 98(2)(b) Employment Rights Act 1996
In a case where the Claimant had committed (admitted) assaults in the workplace because of his disability (he suffers from a paranoid schizophrenic illness), the ET found that the Respondent had dismissed him because of his having committed acts of gross misconduct and that it had reasonable grounds for its belief in this regard given the Claimant’s admission. The admission was, however, limited to the acts in question; not to actual culpability. The ET’s reasons did not demonstrate engagement with the issue of blameworthiness on the Claimant’s part; whether he had in fact wilfully or grossly negligently engaged in the conduct in question (Sandwell and West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09/LA) and, in the circumstances of this case, that amounted to an error of law (Eastland Homes Partnership Ltd v Cunningham UKEAT/0272/13/MC).
Further, the ET’s reasons suggested that it had fallen into the error identified by the EAT (Langstaff P presiding) in Brito-Bapabulle v Ealing NHS Trust UKEAT0358/12/1406; apparently assuming that dismissal will necessarily fall within the range of reasonable responses in a gross misconduct case. There was no indication that the ET had found that this was such a heinous case as to allow of no explanation or mitigation. That being so, it was the ET’s function to consider whether there were mitigating circumstances that might take dismissal in this case outside the range of reasonable responses. Its apparent failure to do so rendered its conclusion unsafe.
Discrimination Arising from Disability – Section 15 Equality Act 2010
Having identified the legitimate aim as being adherence to appropriate standards of conduct in the workplace, the ET failed to demonstrate that it had properly scrutinised the means chosen by the Respondent to achieve that aim (i.e. the dismissal of the Claimant), Hardys and Hansons plc v Lax [2005] IRLR 726, CA. There was only limited consideration of the impact upon the Claimant and no critical evaluation of the possible alternative means apparently open to the Respondent (in particular, home-working). Furthermore, the justification identified by the ET (which was retributive rather than preventative) did not seem to engage with the Respondent’s legitimate aim and, to the extent that it found that there was a risk of relapse even if the Claimant continued on his medication, its finding as to future risk lacked evidential basis. In the circumstances, the ET’s conclusion on the discrimination arising from disability claim could not be upheld.
Outcome
Appeal allowed. Parties afforded the opportunity to make further representations as to disposal.

Eady QC HHJ
[2014] UKEAT 0439 – 13 – 1411
Bailii
Employment Rights Act 1996 98(2)(b)
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538838

EAT Sex Discrimination – Continuing act – Direct – Comparison – The Claimant’s appeal
The Claimant was employed by the Second Respondent (R2); her employment was transferred under TUPE to the First Respondent (R1). The Third Respondent (R3) was employed by R2. He carried out harassment of the Claimant before and after the TUPE transfer. The Employment Tribunal held that R2 (which was in liquidation) was vicariously liable for R3’s acts while the Claimant was employed by R2 and that the claim in respect of R3’s acts after the transfer could not succeed because the Claimant and R3 were not in the same employment. They did not make a finding that R2’s liability had transferred to R1.
On the Claimant’s appeal it was conceded that, but for time limits, R2’s liability passed by the transfer to R1; but it was argued that time began to run from the date of the transfer and that acts of harassment which were committed subsequently could not extend that time.
Held that Sodexho v Gutridge [2009] ICR 1486 did not apply; the time provisions of the Equal Pay Act were different from those which applied to the present claims under the Equality Act. The ET had found that the harassment was an act extending over a period and that the last act was less than 3 months before the claim was lodged; and the claim in respect of harassment was not out of time. In any event the Employment Tribunal was entitled to find that it was just and equitable to extend time. Appeal allowed.
R1’s appeal
The Claimant was dismissed after she had or was accused of having some kind of relationship with one of R2’s footballers–which was forbidden. No steps were taken against the footballer. The Employment Tribunal found that the Claimant’s dismissal was on the grounds of her sex.
R1 attacked that finding on the basis that the Employment Tribunal had used the wrong comparator and had reached their decision by applying a ‘but for’ test when they should have asked themselves what was the ‘reason why’ the Clamant was dismissed. As to comparator, it was argued that the Employment Tribunal should have taken a hypothetical homosexual man in the position of the Claimant who had a relationship with a homosexual footballer.
Held. Considering B v A [2007] IRLR 576, Martin v Lancehawk (EAT/0523/03), Schofield v Stuart Kauffman (EAT 11.10.02) and Chief Constable of South Yorkshire v Vento [2001] IRLR 126 that it was not necessary for the Employment Tribunal to construct the particular hypothetical comparator proposed; they had used a sufficiently close comparator – a male in similar circumstances.
As to the second argument, there was nothing which indicates that the Employment Tribunal had applied the wrong test or the ‘but for’ test. Appeal dismissed.

Jeffrey Burke QC HHJ
[2014] UKEAT 0192 – 13 – 0711
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538839

EAT Unfair Dismissal – Reasonableness of dismissal
Conduct unfair dismissal. Claim dismissed by the Employment Tribunal. Proper approach to two areas of potential procedural irregularity; disclosure to the Claimant of witness statements obtained during investigation and disciplinary panel reliance on minutes of meetings between the Claimant and Head Teacher which she was told would not form part of panel’s deliberations. Appeal allowed and case remitted.
Application by Appellant for court fees of andpound;400 and andpound;1200. The Respondent ordered to pay andpound;600, based on Appellant’s degree of success in appeal and the Respondent’s opportunity to compromise it.

Peter Clarke HHJ
[2014] UKEAT 0085 – 14 – 1710
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538837

ECJ Judgment – Public service – Referral to the Court after annulment – Staff EIB – Evaluation – Illegality of the decision of the Appeals Committee – No need to adjudicate on the claim for compensation

F-55/08, [2014] EUECJ F-55/08, ECLI:EU:F:2014:244
Bailii
European

Employment

Updated: 23 December 2021; Ref: scu.538691

ECJ Judgment – Civil service – Staff of the EIB – Prejudice – Procedure of Investigation – Report of the Inquiry Committee – Mistaken Definition of bullying – Decision of the President of the EIB not to pursue the complaint – Annulment – Action for damages

F-52/11, [2014] EUECJ F-52/11, ECLI: EU: F: 2014 243
Bailii
European

Employment

Updated: 23 December 2021; Ref: scu.538690

EAT Unfair Dismissal: Compensation – Mitigation of loss
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal compensation. Insufficient reasons to explain why (a) pension loss was reduced by 85 pc and (b) no future loss of earnings, particularly partial continuing loss was awarded.
Appeal allowed and remitted for further consideration and reasons by same Employment Judge.

Peter Clark HHJ
[2014] UKEAT 0050 – 14 – 2309
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538457

EAT Disability Discrimination: Disability – PRACTICE AND PROCEDURE – Perversity – Disability – whether evidence to support finding – The Claimant had two periods of absence during the latter part of her employment. She had conceded in her witness statement and evidence that she was not a disabled person for the purposes of the Disability Discrimination Act 1995 during the first period. However the Employment Judge found she was a disabled person during both periods. It was argued by the Respondent that there was no evidence of substantial adverse effects in respect of the first period capable of justifying the Employment Judge’s finding. The parties could not agree what evidence had been given during the Employment Judge’s questioning of the Claimant at the end of her evidence. The appeal was adjourned and the Employment Judge’s note obtained.
Held: there was indeed no evidence justifying the Employment Judge’s finding in respect of the first period.

David Richardson HHJ
[2014] UKEAT 0375 – 13 – 0511
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538460

EAT Practice and Procedure: Restriction of Proceedings Order
EAT PRACTICE AND PROCEDURE – Restriction of proceedings order/vexatious litigant
Order restricting proceedings where habitual and persistent claims that are vexatious have been made by the Respondent without reasonable grounds.

Simler J
[2014] UKEAT 0162 – 14 – 1410
Bailii
Employment Tribunals Act 1996 33
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538459

EAT UNFAIR DISMISSAL – Constructive dismissal
A domestic worker (who came from Tanzania to work for her employer, spoke only Swahili, was illiterate and was paid a pittance) left her employment when an interpreter, representatives of an anti-trafficking charity and police came to her address, and she decided to go with them. She had not been paid the National Minimum Wage.
Some of her claims were upheld by the Employment Tribunal; others (such as race discrimination) were rejected, as was a claim that she had been unfairly (constructively) dismissed. This last was the only matter on which she had permission to appeal to a Full Hearing. The Employment Tribunal had found that there was a repudiatory breach in the employer failing to pay the National Minimum Wage, but said that the Claimant had not told the Employment Tribunal why she left her employment (there was no express statement of this in her witness statement, though it was well-drafted and lengthy; and it was not asserted she said anything in her evidence as to her reason(s) for going). Leaving her job had to be in response to the breach for there to be a dismissal. It was argued that this was perverse since it was obvious that breaches by the employer had caused her to go, and reliance was placed upon a description of her circumstances which the Claimant had made to a GP some days before her leaving, which had led to the visit to her address.
Held: the Employment Tribunal had no direct evidence of the Claimant’s reasons (inexplicably not set out in her witness statement) though she would be the only person who would know them. If the circumstances were such that a reason for her going must have been low pay, the decision would be in error: but the Employment Tribunal had rejected one possible reason which had nothing to do with pay (onerous hours), and listed six others which were thought by the charity to be reasons why she was leaving, only one of which the Employment Tribunal had found sustained on the facts, and only that one which directly related to her financial situation. It could not safely be inferred that at least a reason for her going was a lack of enough pay.
An argument that the Employment Tribunal had required the Claimant to have knowledge of the National Minimum Wage Act in order to act in response to the breach was not accepted, since the Employment Tribunal in context was simply noting that at the time she left the Claimant had no particular reason for thinking herself underpaid (she had, the Employment Tribunal found, received all the money she was entitled to have under the parsimonious terms of the contract made in Tanzania) and thus there was no reason in itself to think she was obviously leaving because of a failure to pay her enough. An argument that the Employment Tribunal focussed on ‘the reason’ for leaving, rather than whether part of the reasons for leaving was the repudiatory breach, failed, since it contemplated at least some reasons being considered, and the problem the Employment Tribunal found here – having listened to the witnesses over a number of days – was that it simply did not know what any of them was.

Langstaff P J
[2014] UKEAT 0241 – 13 – 2507
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538456

EAT Practice and Procedure: Striking-Out/Dismissal – The Employment Judge decided to hear the case in the Claimant’s absence and dismissed her claims. The issue in the appeal was whether he was required, under Rule 27(6) 2004 ET Rules, to enquire of the Respondent whether they would produce written submissions and bundle exchanged by the Claimant for consideration and/or whether the Rrespondent obliged to make the Claimant’s documents available to the Employment Tribunal. Answer; no. Claimant’s appeal dismissed.

Peter Clarke HHJ
[2014] UKEAT 0111 – 14 – 0710, [2015] ICR D4
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538458

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

David Richardson HHJ
[2014] UKEAT 0124 – 14 – 1009
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538273

EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – Discrimination due to pregnancy. The claimant was employed by the respondent as a housekeeper. She was asked about the quality of her work by the head housekeeper, who knew that she was pregnant. The claimant became upset and left the premises, phoning the head housekeeper shortly afterwards to say she would not be back. She sent in in sick lines for the next two weeks. She phoned to enquire about sick pay and was told that the employer had assumed she had resigned. The ET found that the claimant did not resign, but that the head housekeeper thought that she had resigned. The ET found that the burden of proof had shifted to the respondent but in doing so did not take account of the genuine though erroneous belief of the head housekeeper. Further, the ET found that the respondent failed to carry out a risk assessment relating to the claimant under the Management of Health and Safety at Work Regulations 1999. It erred in law in doing so as the claimant had not notified the respondent in writing of her pregnancy.
Held: the ET erred in law in not taking into account the erroneous belief of the head housekeeper. It also erred in law in deciding that the respondent had breached its duty under the 1999 regulation. The case is remitted to a freshly constituted ET to consider in light of all of the facts found.

Lady Stacey H
[2014] UKEAT 0031 – 13 – 2602
Bailii
Management of Health and Safety at Work Regulations 1999
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.538270

EAT Practice and Procedure: Withdrawal
Employment Tribunal Chairman on a review revoked an order dismissing a claim on it being withdrawn and ordered the claim to be reinstated. Failure to consider Khan v Heywood and Middleton Primary Care Trust [2006] IRLR 345 which held that a withdrawal cannot be revoked. Appeal allowed. Claim dismissed.

Birtles J
[2006] UKEAT 0151 – 06 – 1205, UKEAT/0151/06
Bailii, EAT
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.242591

The EAT dismissed an appeal against a Tribunal’s decision that the Claimant had been unfairly dismissed.
The Claimant was dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies outside Parliament. During the disciplinary process within the Council it was accepted that the conversation was about events around the time of the Haavara Agreement of 1933 prior to WWII. The words spoken included reference to anti-Semitism, Nazis and the Holocaust.
The conversation was filmed and then made public through the media and social media. Others posted and retweeted the video clip and expressed their own views about it. This took place without the Claimant’s knowledge or consent. The video clip of the conversation came to the attention of an MP who tweeted about the comments and identified the Claimant as a member of the Labour Party and a Momentum organiser. Through those tweets one of the Respondent’s Councillors identified the Claimant as a Council employee and invited the Respondent to take action. Following disciplinary proceedings, the Claimant was dismissed. The Judge hearing the claim determined that the dismissal was both procedurally and substantively unfair. She made an order for reinstatement.
The Judge was entitled to conclude that the dismissal was unfair. She concluded that there were relevant and significant errors in the procedure adopted by the Council employer, including the fact that the Claimant was not informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction, a warning, was not discussed with him. In reaching her conclusions the Judge did not substitute her own views for that of the employer. Whilst the Judge should have raised a relevant authority with the parties, on the facts of this case, that did not vitiate the decision, Stanley Cole Stanley Cole (Wainfleet) Ltd v. Sheridan applied. As to remedy, on the evidence before her, the Judge was entitled to conclude that reinstatement was practicable and to make the order she did.
Both appeals were dismissed.

[2021] UKEAT 2019-000733
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.669827

Civil service – Officials – Recruitment – Notice of competition – Open Competition EPSO/AD/363/18 – Decision of the selection board to exclude the applicant from the next phase of the competition – Obligation to state reasons – Manifest error of assessment – Article 27 of the Staff Regulations – Equal treatment

T-434/19, [2021] EUECJ T-434/19, ECLI:EU:T:2021:717
Bailii
European

Employment

Updated: 23 December 2021; Ref: scu.669997

The claimants in the employment tribunal are airline pilots employed by the respondent and based in Great Britain. They are members of the trade union BALPA. They all participated in a strike called by BALPA. Because of that the respondent withdrew concessionary travel benefits from them for a year. They complained that they had been subjected to detrimental treatment contrary to (a) section 146 Trade Union and Labour Relations (Consolidation) Act 1992; and (b) regulation 9 Employment Relations Act 1999 (Blacklists) Regulations 2010.
In a decision arising from a preliminary hearing the tribunal decided that, in taking strike action the claimants were taking part in the activities of trade unions or trade union activities within the meaning of regulation 3 of the 2010 Regulations. It did not err in so finding. The words in their ordinary meaning embraced participation in industrial action, and nothing in the 2010 Regulations, the parent statute, or the 1992 Act pointed to a different conclusion. The tribunal also did not err in concluding that the fact that certain actions related to the withdrawal of the benefits were taken in Dublin did not mean that the claimants did not have a cause of action under regulation 9.
In light of the wording of section 146 as read down by the EAT in Mercer v Alternative Future Group Limited [2021] IRLR 620, the tribunal’s conclusion that, in taking part in the strike, the claimants were taking part in trade union activities for the purposes of section 146, was also correct.
In light of that read-down wording, it was, however, wrong to conclude that the outcome, in respect of section 146 and the 2010 Regulations, depended on the strike being action to which section 219 of the 1992 Act applied. But it was right in any event to conclude that, in light of the outcome of High Court litigation against BALPA in which that was at issue, it was not open to the respondent to run the point as a defence to the tribunal claims, as that would amount to an abuse of process.

[2021] UKEAT 2020-000006
Bailii
England and Wales

Employment

Updated: 23 December 2021; Ref: scu.669834

EAT Estoppel or abuse of process
Contract of employment
Appeal allowed and claims remitted for re-hearing before a freshly constituted Employment Tribunal because (1) the Employment Tribunal made, on the first day of the hearing, a ruling on issue estoppel which was incorrect in law and which foreclosed part of the Claimant’s case; (2) the Employment Tribunal gave no adequate reasons for a finding that it was an abuse of the process for the Claimant to raise other aspects of his case; and (3) the Employment Tribunal, when denying the Claimant’s contract claim on the basis that it was extinguished by an overpayment to him, gave no adequate reasons for its finding that there was an overpayment.

David Richardson HHJ
[2014] UKEAT 0485 – 12 – 1906
Bailii
England and Wales

Employment

Updated: 22 December 2021; Ref: scu.537751

EAT Practice and Procedure : Costs – Employment Tribunal award of costs
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 rr.38-42
Pursuant to r.41(2), the means of the paying party might be taken into account in considering (1) whether to make an award of costs; and/or (2) as to how much should be awarded.
It was not mandatory for an Employment Tribunal to have regard to paying party’s means: it ‘may have regard to the paying party’s ability to pay’; it was not obliged to so do. Moreover, the fact that a party’s ability to pay was limited did not require the Employment Tribunal to assess a sum confined to an amount that he or she could pay (see, eg, Arrowsmith v Nottingham Trent University [2012] ICR 159, CA, and Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT).
That said, discretion thus afforded to Employment Tribunal to make award of costs would have to be exercised judicially (Doyle v North West London Hospitals NHS Trust UKEAT/0271/11/RN). As with any exercise of discretion on the part of an Employment Tribunal, the Employment Appeal Tribunal would only interfere if a relevant matter had been taken into account or there had been a failure to have regard to a relevant matter or if the conclusion reached was perverse (Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778, EAT). An appeal against a costs order will be doomed to failure unless it is established that the order is vitiated by an error of legal principle or was not based on the relevant circumstances (see Yerrakalva v Barnsley MBC [2012] ICR 420, CA per Mummery LJ).
Here the Employment Tribunal had considered the Claimant’s ability to pay to be a relevant matter in deciding to make an award of andpound;9,000 costs against him. On the evidence before the Employment Tribunal, however, it had reached the unfounded conclusion that he had been able to obtain well paid work as a freelance consultant. The actual evidence was of two examples of paid consultancy work from 2006. There was no evidence of a ‘recent history’ of well paid consultancy work. The only relevant work had been undertaken some 7 years’ previously; was limited in time; and had given rise to a total of andpound;4,300 fees. Otherwise the evidence was that the Claimant had a history of low paid, temporary engagements with significant periods of unemployment, including a period of some three years prior to working for the Respondent.
Thus, having decided it was relevant to take into account the Claimant’s ability to pay, the Employment Tribunal failed to take into account these relevant matters, alternatively took into account irrelevant matters or simply reached a perverse conclusion on evidence before it.
On disposal, however, this was ultimately a matter of discretion for the Employment Tribunal and it would be inappropriate for the Employment Appeal Tribunal – on the basis of submissions from one party – to usurp the Employment Tribunal’s function by substituting its own decision. Even on the evidence as to the Claimant’s means, it was possible that the Employment Tribunal would still consider it appropriate to make a nominal award of costs in this case. In the circumstances, the appropriate order on disposal was to direct that the matter be remitted to the same Employment Tribunal to determine the Respondent’s application for costs (if still pursued) in the light of the evidence as to the Claimant’s means and ability to pay.

Eady QC J
[2014] UKEAT 0147 – 14 – 0909
Bailii
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004
England and Wales

Employment

Updated: 22 December 2021; Ref: scu.537755

EAT Practice and Procedure : Compromise – The Employment Tribunal erred in their reasons for holding that the Claimants were not precluded from pursuing equal pay claims in respect of a certain period by the terms of COT3s. However their decision was upheld for the different reasons advanced on behalf of the Claimants in the Respondent’s Answer.
The Claimants’ cross-appeal from directions for a hearing on an estoppel by convention argument precluding the Claimants’ claims was academic as the basis for such an argument was the original erroneous basis for the Tribunal’s decision. The decision of the Employment Tribunal was not upheld on the basis which gave rise to the estoppel by convention argument.

Slade DBE J
[2014] UKEAT 0108 – 13 – 1010
Bailii
England and Wales

Employment

Updated: 22 December 2021; Ref: scu.537761

EAT Disability Discrimination : Reasonable Adjustments – UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make reasonable adjustments for the Claimant because it would have been a reasonable adjustment to disregard a final written warning.
Held: (1) The majority had been entitled to find that the PCP applied was a requirement of consistent attendance, and that the Claimant was placed at a substantial disadvantage compared to non-disabled persons by virtue of that requirement. Royal Bank of Scotland v Ashton [2011] ICR 632 and Griffiths v Secretary of State for Work and Pensions (UKEAT/0372/13) considered. (2) However the majority erred in that it did not identify any ‘step’ for the purposes of section 20(3), concentrating instead on the Respondent’s process of reasoning, and in any event the majority set out no sustainable basis for saying that disregarding the final written warning was a step which it was reasonable for the Respondent to have to take.
The Employment Tribunal unanimously held that the Claimant’s dismissal had been procedurally unfair because it did not review the final written warning.
Held: the Employment Tribunal erred in law. The guidance in Davies v Sandwell MBC [2013] IRLR 374 shows that an employer is not required to re-open a final written warning save in limited circumstances. If the Employment Tribunal had truly applied the standard of the reasonable employer, it was not open to it to find, in the circumstances of this case, that the Respondent was required in any way to discount or re-open, wholly or in part, the final written warning.

David Richardson HHJ
[2014] UKEAT 0107 – 14 – 1009
Bailii
England and Wales

Employment

Updated: 22 December 2021; Ref: scu.537756

EAT Practice and Procedure : Striking-Out/Dismissal – Bias, misconduct and procedural irregularity
The Employment Judge made a determination of time limit issues and struck out Further and Better Particulars at a Case Management Discussion. He should not have done so: see rule 17(2) of the Employment Tribunal Rules of Procedure 2004 then applicable. He should have considered (1) whether leave to amend was required in respect of any of the allegations in the Further and Better Particulars and (2) whether leave to amend should be granted, having regard to principles familiar from Selkent Bus Company v Moore [1996] ICR 836 and Ali v Office of National Statistics [2005] IRLR 201. Matter remitted for reconsideration along with other interlocutory issues presently in abeyance.

David Richardson HHJ
[2014] UKEAT 0125 – 14 – 1209
Bailii
Employment Tribunal Rules of Procedure 2004 17(2)
England and Wales
Cited by:
See Also – Bham v 2Gether NHS Foundation Trust EAT 7-Aug-2015
EAT Race Discrimination : Direct – RACE DISCRIMINATION – Inferring discrimination – HARASSMENT – VICTIMISATION DISCRIMINATION – Other forms of victimisation – The Appellant appealed against (1) a Substantive . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 December 2021; Ref: scu.537754

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNLAWFUL DEDUCTION FROM WAGES
The Appellant, a solicitor, was employed under a contract of employment that contained a bonus entitlement. He was dismissed on grounds that he claimed bonuses to which he was not entitled. The ET dismissed his claims for unfair dismissal, unlawful deduction of wages and breach of contract. The issue before the EAT was whether the Respondent had reasonable grounds for its belief that the Appellant was guilty of gross misconduct. The EAT was satisfied that it was so entitled. Accordingly the appeal against the dismissal of the unfair dismissal complaint failed. The EAT further held that if the Appellant had a good claim for bonus, which he did not, it would have to be brought as a claim for breach of contract as his loss, if any, was very difficult to quantify (see Coors Brewers Ltd v Adcock [2007] ICR 983). In fact there was no loss.

Supperstone J
[2014] UKEAT 0198 – 13 – 1104
Bailii
England and Wales

Employment

Updated: 22 December 2021; Ref: scu.537749

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
UNFAIR DISMISSAL – Dismissal/ambiguous resignation
A claim for unfair dismissal was held out of time on the basis that the dismissal occurred on 1 November, but the ET1 was filed on the following 15 February. The Claimant asserted that the EDT was 29 November, since there was no gross misconduct, she was entitled to notice, and had been told she would receive notice pay. She said giving her notice was what the parties intended. Her claim for discrimination on the ground of her disability relied on dismissal as the last identified act, and in the absence of any evidence or submission that it was just and equitable that time should be extended the Employment Tribunal held that out of time too.
Held. An Employment Tribunal had to approach the question whether a dismissal was with or without notice objectively. The intention of the parties could be derived only from what they did and what the surrounding circumstances showed was probable. If, objectively viewed, there was a dismissal without notice it did not matter that this would be a breach of contract by the employer or that the employer may not have intended it: there was only a very limited role for evidence of one party’s expressed intention. Objectively, the Employment Tribunal was entitled to conclude there was a dismissal on 1 November.
A submission that the rejection of the appeal against dismissal was an act of discrimination, and because of its date extended time for the acts relied on to within three months of the claim, asserted a continuing act of which there was no sign in the ET1, where the last act relied on had been dismissal itself. This submission was rejected. The process of appeal did not in this case extend time to within the primary period. Since the Employment Tribunal was not bound to consider if time should be extended without there being evidence or submission to that effect, the appeal was dismissed. An application for costs was rejected.

Langstaff P J
[2014] UKEAT 0004 – 14 – 1006
Bailii
England and Wales
Citing:
Cited – Adams v GKN Sankey Ltd EAT 1980
The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 December 2021; Ref: scu.537750

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make reasonable adjustments for the Claimant because it would have been a reasonable adjustment to disregard a final written warning.
Held: (1) The majority had been entitled to find that the PCP applied was a requirement of consistent attendance, and that the Claimant was placed at a substantial disadvantage compared to non-disabled persons by virtue of that requirement. Royal Bank of Scotland v Ashton [2011] ICR 632 and Griffiths v Secretary of State for Work and Pensions (UKEAT/0372/13) considered. (2) However the majority erred in that it did not identify any ‘step’ for the purposes of section 20(3), concentrating instead on the Respondent’s process of reasoning, and in any event the majority set out no sustainable basis for saying that disregarding the final written warning was a step which it was reasonable for the Respondent to have to take.
The Employment Tribunal unanimously held that the Claimant’s dismissal had been procedurally unfair because it did not review the final written warning.
Held: the Employment Tribunal erred in law. The guidance in Davies v Sandwell MBC [2013] IRLR 374 shows that an employer is not required to re-open a final written warning save in limited circumstances. If the Employment Tribunal had truly applied the standard of the reasonable employer, it was not open to it to find, in the circumstances of this case, that the Respondent was required in any way to discount or re-open, wholly or in part, the final written warning.

David Richardson HHJ
[2014] UKEAT 0107 – 14 – 1010
Bailii
England and Wales
Citing:
Cited – The Royal Bank of Scotland v Ashton EAT 16-Dec-2010
EAT DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
An Employment Tribunal failed to focus on the wording of the Disability Discrimination Act 1995 . .
Cited – In re Pitchford 11-Jan-1924
. .
Cited – Davies v Sandwell Metropolitan Borough Council CA 26-Feb-2013
Lewison LJ said that Employment Tribunals should exercise more active control over cases before them, saying: ‘The function of the Employment Tribunal is a limited one. It is to decide whether the employer acted reasonably in dismissing the . .
Cited – Griffiths v The Secretary of State for Work and Pensions EAT 15-May-2014
EAT Disability Discrimination : Reasonable Adjustments – Disabled employee absent from work and made subject to the application of employer’s Attendance Policy resulting in written warning.
She seeks . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 December 2021; Ref: scu.537759

The employment tribunal did not err in law in holding that the terms of the claimant’s contract of employment (including incorporated provisions of the respondent’s Ordinances) allowed the respondent to terminate her contract before the end of her probationary period because of unsatisfactory performance, without following the procedure for dismissal for good cause pursuant to Ordinance 41.

[2021] UKEAT 2020-001057
Bailii
England and Wales

Employment

Updated: 22 December 2021; Ref: scu.669830

A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success: ‘If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it.’
The court commented on the uncertainty of litigation: ‘Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the contestants when they took up arms’.

Sir Hugh Griffiths
[1974] ICR 72
England and Wales
Cited by:
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Balamoody v Manchester Health Authority EAT 2-Mar-1999
The claimant appealed against orders striking out his complaint of unlawful racial discrimination. He had owned a nursing home regulated by the respondent authority. A senior white employee had broken regulations regarding safekeeping of drugs, but . .
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Cited – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
Cited – Cass v Amt-Sybex (Northern Ireland) Ltd NIIT 26-Jan-2011
The decision of the tribunal is that the respondents’ application for costs is refused. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 December 2021; Ref: scu.195689

[2002] UKEAT 1225 – 01 – 2904
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.202763

EAT Insolvency
EAT Insolvency – (no sub-topic)

His Hon Judge Mcmullen QC
EAT/1413/, EAT/458/02PA/103/, [2003] EAT 0458 – 02 – 2502, [2003] UKEAT 0458 – 02 – 2502, EAT/458/02 and PA/103/ EAT/1413/
Bailii, Bailii, EAT
England and Wales
Citing:
See also – Khan v Trident Safeguards Ltd EAT 15-Jan-2003
. .
See also – Khan v Trident Safeguards Ltd and others EAT 6-Nov-2000
. .
See also – Khan v Trident Safeguards Ltd and others EAT 22-Oct-2001
. .
See also – Khan v Trident Safeguards Ltd and others EAT 24-Jun-2002
. .

Cited by:
See also – Khan v Trident Safeguards Ltd EAT 15-Jan-2003
. .
See Also – Khan v Trident Safeguards Ltd and others CA 19-May-2004
The claimant had ben made bankrupt. The defendant argued that his claim vested in the trustee.
Held: A discrimination claim was hybrid in nature rather than purely personal, and so it vested in the trustee. However the real issue was the . .
See Also – Khan v Trident Safeguards Limited, Shaw, King, Wright, Harman EAT 6-May-2005
EAT Race Discrimination – Direct – Victimisation. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 December 2021; Ref: scu.183609

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination – The Claimant was summarily dismissed for gross misconduct. His last day of service was 24 August. His internal appeal was heard on 9 January. The internal appeal reduced the finding from gross misconduct to misconduct. Since the Claimant was already subject to a final written warning he was still dismissed but he was told that he would receive – and did receive – pay in lieu of notice. It was argued that the decision on the internal appeal changed the effective date of termination for the purposes of calculating the time limit applicable to a claim of unfair dismissal. The Employment Judge found that it did not.
Held: appeal dismissed. The decision on internal appeal did nothing to alter the effective date of termination. Gisda Cyf v Barratt [2010] ICR 1475, Robert Cort and Son Ltd v Charman [1981] ICR 816 and Fitzgerald v University of Kent at Canterbury [2004] ICR 737 considered and applied. Hawes and Curtis Ltd v Arfan [2012] ICR 1244 distinguished: in that case the decision on appeal expressly altered the date at which dismissal took effect.

David Richardson HHJ
[2014] UKEAT 0029 – 14 – 2409
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537103

EAT PRACTICE AND PROCEDURE – Review – Unwise intervention by a Regional Employment Judge in proceedings before the Employment Appeal Tribunal were not such as to give rise to any apparent bias concerning the hearing of claims in an Employment Tribunal, chaired by a different Employment Judge in that Region, which were subsequently the subject of appeal to the Employment Appeal Tribunal.

Wilkie J
[2014] UKEAT 0157 – 11 – 2509
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537101

EAT Jurisdictional Points : Extension of Time: Just and Equitable
PRACTICE AND PROCEDURE – Postponement or stay
The Employment Judge refused an application to bring proceedings for race discrimination against a new Respondent. He did not, however, consider how and to what extent that respondent was prejudiced by delay. There was potentially important material on that point. Appeal allowed. Question whether it was just and equitable to extend time remitted for rehearing.
The Employment Judge stayed the proceedings pending a determination of conduct proceedings by the Nursing and Midwifery Council. It was doubtful whether there was any real purpose in a stay, given the different issues in the two sets of proceedings. However, the Nursing and Midwifery Council proceedings had now been determined in any event. The order imposing a stay was revoked only because it made the stay conditional on a determination by a particular Committee, and named the wrong Committee.

David Richardson HHJ
[2014] UKEAT 0146 – 14 – 2208
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537095

EAT Practice and Procedure : Costs
The Respondent, having successfully resisted the Claimant’s claim, applied by letter for a hearing to deal with the question whether there should be an award of costs. The letter made it plain that there was further information and argument which the Respondent wished to present to the Employment Tribunal. The Employment Tribunal not only refused the application for a hearing but also the application for costs, saying there was ‘no prospect of the Tribunal (following a hearing or otherwise) making an order for costs’.
Held: Appeal allowed. The Employment Tribunal, having refused to order a hearing, was wrong to refuse the application for costs peremptorily. It was required to give the Respondent a fair opportunity to put forward its argument before determining the application; and its reasons were in any event insufficient to address the application.

Richardson HHJ
[2014] UKEAT 0109 – 14 – 2608
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537096

EAT Victimisation Discrimination : Whistleblowing – PRACTICE AND PROCEDURE
Striking-out/dismissal
Imposition of deposit
The Employment Judge struck out all but one aspect of the Claimant’s claim of public interest disclosure detriment. In respect of the sixth alleged public interest disclosure the reasons given were wrong in law; moreover it could not be said that the Claimant’s claim in respect of the sixth public interest disclosure had no reasonable prospects of success. The appeal against the striking out order was accordingly allowed.
The Employment Judge also made a deposit order in respect of the fifth alleged public interest disclosure. When the Claimant did not pay this deposit order apparently believing that it would not be enforced pending appeal another Employment Judge gave a Judgment striking out not merely the claim relating to the fifth disclosure but (erroneously) the whole claim. Later the Employment Judge erroneously refused to review his Judgment (as he had power to do – see Sodexho Ltd v Gibbons [2005] ICR 1647).
The order striking out the whole of the claim was apparently made on the erroneous basis that the deposit order was the only remaining ‘live’ claim. The Judgment had to be set aside as a consequence of the appeal against the striking out order being allowed. The matter would be remitted with a view to a fresh deposit order being made. This would also give the Claimant to apply afresh for a review.

David Richardson HHJ
[2014] UKEAT 0082 – 14 – 1508
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537100

EAT Unfair Dismissal : Reasonableness of Dismissal – Procedural fairness / automatically unfair dismissal
The Respondent had dismissed the Claimant following an investigation and a disciplinary hearing. The conduct which the Respondent stated was the reason for dismissal consisted of selling scrap metal generated by work at the Respondent’s garage and dividing the money obtained among workers, including the Claimant. The Claimant stated that he had done so for years and thought that the management knew and approved. The Employment Tribunal held that the Respondent did not have a genuinely held belief that the Claimant had committed gross misconduct and had not carried out reasonable investigation. It also held that there was procedural failure, by not making clear what the allegations were.
Held: The Employment Tribunal did not err in law. It was entitled to come to its view and explained sufficiently why it had done so. Appeal dismissed

Hon Lady Stacey
[2014] UKEAT 0126 – 14 – 0209
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537102

EAT Contract of Employment : Itemised Pay Statement – Where a payment by way of salary or wages for a period is reduced by the recovery of an overpayment in a previous period, that reduction is a ‘deduction’ for the purposes of section 8 of the Employment Rights Act 1996. The deduction and its purpose should be identified on the itemised pay statement relating to the payment.

David Richardson HHJ
[2014] UKEAT 0098 – 10 – 2309
Bailii
Employment Rights Act 1996 8
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.537104

The employer disputed a finding that the Employment tribunal had jurisdiction over the employment claims made by the respondent.

Rimer, Floyd, Macur LJJ
[2014] EWCA Civ 1238
Bailii
Employment Rights Act 1996 94(1), Employment Relations Act 1999 10
England and Wales
Citing:
Appeal from – Dhunna v Creditsights Ltd EAT 3-Apr-2013
EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
WORKING TIME REGULATIONS – Holiday pay
The approach to determining whether an employee of British company who works and lives abroad falls . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 December 2021; Ref: scu.536775

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – The Claimant argued that the Employment Tribunal was required to determine, but did not determine, issues relating to the acquisition of a company known as Flowmaster Limited – specifically whether there was a TUPE transfer and whether the Claimant was entitled to resign because the Respondent failed properly to address that issue.
Held: the Employment Tribunal had correctly understood the issues. Whether there was a TUPE transfer of Flowmaster employees was not an issue for the Employment Tribunal to determine.
The Claimant argued that the Employment Judge’s conduct was such as to evince apparent bias.
Held: while the Employment Judge’s choice of language at one point during the hearing was open to criticism, a fair minded and informed observer would not have thought there was a real possibility of bias.

David Richardson HHJ
[2014] UKEAT 0151 – 14 – 1809
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536735

EAT Fixed Term Regulations – An employer provided the benefit of an income replacement policy, effected with Unum, in the event of ill-health. The Claimant suffered a hernia, which would have put him off work for the qualifying 26 week period were he not a fixed term employee, whose contract at the time was due to expire within three months. His contract was extended for a further year, but Unum did not admit his claim, relying on a policy provision that restricted benefit to the unexpired period of a fixed-term employee’s contract as it was at the time of the injury. An Employment Tribunal of two persons found that there was less favourable treatment than would have been the case if the Claimant had been a permanent employee, but disagreed whether this was suffered by him by an act or deliberate failure to act of his employer. The Employment Judge (who had the casting vote) said it was not – it was an act by Unum, and the employer was merely the messenger to the Claimant of the result of that act; the lay member said it was because the employee had not negotiated non-discriminatory terms when the policy was effected. If she was right, the Employment Judge would have held the discrimination justified as pursuing the legitimate aim of providing employees with PHI at no greater expense than the costs of an annual premium, whereas the lay member would not, holding that the employer could have renegotiated and had the resources to pay the Claimant anyway. Held that the conclusion of the Employment Judge as to the cause was one he was entitled to reach, and was not perverse; Unum were not the agent of the employer; the policy with them was not an instrument contracting out of the Fixed-Term Regulations; and the Employment Judge was entitled on the evidence to conclude that the only way the employer could reasonably achieve the aim was effecting the Unum policy (or one in substantially identical terms) and it was thus justified.

Langstaff P J
[2014] UKEAT 0061 – 14 – 1107
Bailii
Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536734

EAT Jurisdictional Points : Worker, Employee or Neither – Whether the Claimants, when providing their services to the Respondent as interpreters, were employees within the meaning of s.83(2)(a) Equality Act 2010, and in particular whether, when providing those services they were employed under a contract personally to do work.
In finding that they were not, the Employment Tribunal took into account an irrelevant factor, namely the absence of mutuality of obligations between assignments (cf. Quashie, paragraph 12; per Elias LJ, concerned with the contract of service question). Appeal by the Claimants allowed.
Case remitted to the same Employment Tribunal for reconsideration in light of the Employment Appeal Tribunal judgment.

Peter Clark J
[2014] UKEAT 0340 – 13 – 1609
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536700

EAT Time Off : Parental Leave/Dependant – UNFAIR DISMISSAL – Automatically unfair reasons – Appeal against findings of fact by the Employment Judge that sections 57A and 99 of the Employment Rights Act 1996 did not apply. The Employment Judge considered all relevant matters and was entitled to reach that conclusion. Appeal dismissed.

Birtles J
[2014] UKEAT 0438 – 13 – 1709
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536701