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

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 0339 – 13 – 1609
Bailii
Equality Act 2010 83(2)(a)
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536703

EAT Unfair Dismissal – Contributory fault – Polkey deduction – The Employment Tribunal found the Claimant’s dismissal to be unfair because the principal reason was that the employee made a protected disclosure (section 103A of the Employment Rights Act 1996). Initially it made a basic award of andpound;3,325 and a compensatory award of andpound;30,616. The matter was remitted to it by the Employment Appeal Tribunal to consider and give reasons in respect of Polkey and conduct. On remission it made no compensatory award, holding by way of Polkey finding that the Claimant would inevitably have been dismissed on the same date. It found that there should be a 10% reduction in the basic award for conduct. On appeal again, it was held that it was impossible to see how the Employment Tribunal reconciled its Polkey finding with other findings in its original Liability Reasons and in the reasons it gave for reducing the award for conduct by just 10%. The Employment Tribunal’s Reasons did not meet the minimum requisite standard. The appeal was accordingly allowed. A cross-appeal on the conduct issue was dismissed. The parties invited the Employment Appeal Tribunal to make its own assessment on the Polkey issue: the assessment was that there should be a 40% reduction.

David Richardson J
[2014] UKEAT 0502 – 13 – 0408
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536695

EAT Practice and Procedure : Amendment – The Employment Judge, while identifying that the application for permission to amend should be determined according to Selkent principles, did not apply them in his reasons.

David Richardson J
[2014] UKEAT 0254 – 14 – 1408
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536699

EAT Contract of Employment : Apprenticeship – Whether established – Appeal on the issue of whether workers at a livery stable were employed under contracts of work on apprenticeships for the purposes of the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999. The Employment Judge was in error in finding on the detailed facts they were employed under contracts of apprenticeship. Appeal allowed.

Birtles J
[2014] UKEAT 0458 – 13 – 1609
Bailii
National Minimum Wage Regulations 1999, National Minimum Wage Act 1998
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536702

EAT Contract of Employment : Whether Established – PRACTICE AND PROCEDURE – The Claimant was a relief Registrar of Births, Deaths and Marriages, who worked for Somerset County Council. He did so under arrangements which imposed on him no obligation to accept work if offered, nor on the council to offer any. The Employment Judge found that the control necessary to define any contract as being one of employment was lacking. However, the Claimant gave evidence that he had worked during each of the last 52 weeks of his employment save 3, for which he said he had had notified the Council he was taking annual leave. When he claimed he had been unfairly dismissed, the Employment Tribunal determined employment status as a preliminary issue, and concluded that because of a lack of mutuality and absence of control he was not an employee, and that it was therefore unnecessary to consider the impact of the continuity of employment provisions in the ERA 1996. He appealed on the ground that a statutory provision required anyone functioning as a registrar to be an employee; and that in any event the Employment Judge should have considered the effect of s.212(3) ERA (continuity of employment, accepting annual leave as a custom or arrangement within (c)). The statutory argument was rejected on a proper interpretation and application of the relevant provisions, and the ‘continuity’ point because there had been no appeal against the findings of an absence of mutuality and (more importantly) control (rejecting an application to amend, applying Khudados v Leggate). A further ground, that the Employment Judge should have heard the Claimant orally before determining to reject his application to strike out the Respondents’ Answer, was rejected. Though it would have been advisable for the Employment Judge to have done so, it was not obligatory and the prejudice on which the Claimant relied could have been the subject of an application by him to adjourn the hearing, which he did not make.

Langstaff P J
[2014] UKEAT 0121 – 14 – 1607
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536694

EAT Practice and Procedure : Costs – ET Costs Award – ET (Constitution and Rules of Procedure) Regulations 2004 Schedule 1
Appeal from Judgment awarding costs against the Claimant upon the remitted hearing of the Respondent’s application for costs (see previous EAT Judgment in this matter, under UKEAT/0144/12).
When deciding whether the threshold had been crossed for its costs jurisdiction to be engaged, the Employment Tribunal considered that it had been, on the basis that the claims were misconceived.
In determining whether or not bringing the race discrimination case had been misconceived from the outset, the Tribunal needed to understand what that case was. That understanding was not demonstrated by the Employment Tribunal’s reasoning, which was rendered unsafe by the apparently erroneous characterisation of how the Claimant had put her case.
In respect of the unfair dismissal claim, whilst bound by the earlier findings on liability, the Tribunal was required to form its own judgment as to whether the claim had been misconceived. That independent engagement was not apparent from the Employment Tribunal’s reasons.
Disposal
Having due regard to the guidance laid down by the EAT in Sinclair Roche and Temperley and Ors v Heard and Anor [2004] IRLR 763, the costs application was remitted to be considered by a freshly constituted Tribunal, purely looking at the question of whether or not the claims were misconceived (the Respondent not having pursued a cross-appeal against the refusal to find unreasonable conduct). The decision to remit to a freshly constituted Tribunal was for largely pragmatic reasons arising in this case.

Eady QC J
[2014] UKEAT 0133 – 14 – 1408, [2014] UKEAT 0134 – 14 – 1408
Bailii, Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536698

EAT Practice and Procedure – Striking-out/dismissal
Amendment
When making her assessment of the question whether the Claimant’s claims of discrimination arising from disability and wrongful dismissal had no or little reasonable prospect of success, the Employment Judge did not address the question whether, in the light of the Claimant’s repeated lies to her colleagues as well as her initial lie in order to obtain leave, dismissal was a proportionate means of achieving a legitimate aim and/or justified as a matter of common law. Deposit orders imposed.
The Employment Judge ought to have refused permission to amend a reasonable adjustments claim. On analysis, the PCP put forward by the amendment was unsustainable. In other respects the Employment Judge did not err in law in relation to amendments.

David Richardson HHJ
[2014] UKEAT 0005 – 14 – 2107
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536686

EAT Practice and Procedure : Costs – Employment Tribunal refusal to make an award of costs – ET Rules 2004
When deciding it would not be appropriate to make an award of costs (having determined that the threshold for such an award had otherwise been crossed) did the Employment Judge err in taking into account: (1) the fact that the Respondents were volunteers and trustees of a charity and/or (2) that any recovered costs will inure to the benefit of the Claimant’s insurers rather than to the Claimant personally.
This was a challenge to an Employment Judge’s exercise of discretion. That being so, it would not be for the EAT to interfere unless it was established that the order was vitiated by an error of legal principle or was not based on the relevant circumstances (per Mummery LJ in Yerrakalva v Barnsley MBC [2012] ICR 420).
As to whether it amounted to an error of law for the Employment Judge to have had regard to the nature of the Respondents’ positions as volunteer trustees of a charity: it could not be said that she thereby improperly fettered her discretion or took into account an irrelevant fact. The Employment Judge was not saying that it would always be the case that volunteer trustees could not face personal liability for costs, simply that she felt that it was inappropriate to make an award against volunteer trustees in these circumstances. That was a matter within her discretion and did not vitiate her decision.
The Employment Judge’s reasoning did not, however, stop there. She also identified that the Claimant had been funded by an insurer and was therefore not personally out of pocket. She took that view notwithstanding that Counsel then appearing for the Respondents had agreed that she should disregard that fact. The Respondents’ position before the Employment Tribunal had been correct. The Rules did not identify the means of the receiving party as a potentially relevant question and there were good policy reasons why it should not be. Furthermore, here the potentially receiving party was only not personally suffering from the costs of the Respondents’ misconceived defence and unreasonable conduct of the litigation because he had prudently entered into an insurance policy that would meet this liability. Allowing that the appeal concerned a power to award costs derived from statutory instrument rather than a common-law award of damages, the public policy principle was essentially the same as that approved in Parry v Cleaver [1970] AC 1.
Allowing that the Respondents should avoid the costs consequences of their unreasonable conduct because the Claimant had prudently entered into this insurance would allow them to appropriate that benefit and that would be wrong. The Claimant’s insurance policy was therefore an irrelevant consideration that rendered the decision unsafe.
Questions of appropriateness of costs award and possible issues as to means to be remitted to the same Employment Judge (if practicable) for fresh consideration in the light of this Judgment.

Eady QC HHJ
[2014] UKEAT 0483 – 13 – 2507
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536689

EAT Practice and Procedure : Costs – ET Order of Costs – Rule 41(2) ET Rules 2004
Where threshold crossed for Employment Tribunal costs jurisdiction to be engaged (as the Employment Judge was entitled to find here), it is still a matter of judicial discretion as to whether such an award should be made. In exercising that discretion, r.41(2) ET Rules 2004 expressly recognised that an Employment Judge may have regard to the paying party’s ability to pay. This was recognised not just as a matter potentially relevant to the amount but, prior that stage, as a point that might be taken into account in deciding whether an award should be made. Here there was no indication that the Employment Judge had the considered the question of the Claimant’s means. There was no requirement on the Employment Judge to take into account the Claimant’s means before making an award and there may have been a question as to whether the Claimant had himself clearly raised the issue. On the other hand, as HHJ Richardson observed in Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06, the Employment Tribunal was required to state whether it had considered the issue and – if relevant – to state (simply) why it had not considered it to be a relevant matter.
Where (as here) dealing with the exercise of the Employment Judge’s judicial discretion, the Employment Appeal Tribunal should not interfere unless it had been plainly wrong or where the Employment Judge took into account irrelevant matters or failed to take into account relevant matters. Allowing that it was open to the Employment Judge not to take the Claimant’s means into account, the difficulty was that this was still a potentially relevant factor and there was no way of telling whether it had been taken into account.
That rendered the decision unsafe and the matter should be remitted to the same Employment Judge for fresh consideration in the light of this Judgment.

Eady QC HHJ
[2014] UKEAT 0216 – 13 – 2807
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536685

EAT Unfair Dismissal : Reasonableness of Dismissal – PRACTICE AND PROCEDURE – New evidence on appeal
The Claimant, a bus driver, was dismissed for covering up a CCTV camera in his cab. His principal ground of appeal was that the Employment Judge was perverse in finding that it was reasonable to impose the sanction of dismissal for covering up a CCTV camera. Appeal rejected.
The Claimant had referred in his Notice of Appeal to fresh evidence and in effect made an application for the admission of fresh evidence. His counsel correctly took the view that it was better to raise that fresh evidence with the Employment Judge by way of an application for reconsideration. When an appeal is considered on paper at an early stage it is often the practice of the EAT to stay an appeal pending reconsideration by the Employment Judge or Tribunal. But here, where the matter arose at the final hearing, and where the application to adduce fresh evidence was a free-standing application raising no question of law, it was better to dismiss the appeal. In the event that the Employment Judge erred in law in reconsidering the case the Claimant would be able to appeal against that decision. Paragraph 10.1 of the EAT 2013 Practice Direction considered.

David Richardson HHJ
[2014] UKEAT 0059 – 14 – 1707
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536690

EAT Unfair Dismissal : Compensation – The claimant was the subject of sexual harassment. The medical evidence was that the claimant was unfit for work due to a combination of events, the harassment being one of the causes. The ET reduced compensation thus: by 50% to reflect their finding that the respondent had been a contributor rather than the sole cause of the claimant’s loss; and to nil for a period during which the claimant had prepared for and then attended university, on the basis that the claimant not available for paid work at that time. The award of compensation was calculated to 2013, on the basis that the evidence of the claimant and her medical adviser was that the ending of litigation would assist recovery. The ET made no reference in its decision to a claim in respect of loss caused by reduced hours of work, and to a submission that the claimant had failed to prove her loss by failing to lead evidence of other work she would have done had she been fit. The ET did not determine pension loss but indicated that it hoped parties would agree a figure in that regard. The parties did not agree.
Held: There was no error of law in the ET decision to apportion the illness and the loss caused by it to various causes. The ET was entitled to find that wage loss would be likely to cease in 2013. The ET erred by omitting to give a reasoned decision in relation to the submissions about wage loss. Remitted to the same ET to hear evidence and submissions on the figures for wage loss and pension loss.

Lady Stacey H
[2014] UKEAT 0050 – 13 – 2207
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536688

EAT Transfer of Undertakings : Service Provision Change – Service provision change – company holding cleaning contracts in respect of certain hotels – contracts lost to other cleaning contractors – common ground that service provision change provisions applied to those employed within individual hotels – dispute as to whether Claimants – one area manager and one training and area manager – were ‘assigned’ to any organised group of employees which had as its principal purpose the carrying out of the activities concerned.
Held: the Employment Judge did not make findings or give reasons sufficient to justify his conclusion that the Claimants were assigned to an organised group of employees which had as its principal purpose the carrying out of the activities concerned.

David Richardson J
[2014] UKEAT 0091 – 14 – 1607
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536693

EAT Redundancy : Definition – UNFAIR DISMISSAL – Reason for dismissal including substantial other reason – Reasonableness of dismissal – Whether the Employment Tribunal was entitled to hold that two new posts replacing a single post held by the Claimant involved a diminutive in the requirement for employee(s) to do work of a particular kind (Employment Rights Act 1996 section 139(1)(b)(ii)).
Dismissal for the redundancy reason was fair in all the circumstances.
Appeal is dismissed. The Respondent’s application for costs refused.

Peter Clark J
[2014] UKEAT 0112 – 14 – 1607
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536684

EAT Harassment – Conduct – Single instance race harassment claim – one overheard remark, ‘She is Polish and very nice’ or ‘She is Polish but very nice’. The Employment Tribunal erred in law in (1) failing to address the question whether the remark alleged had the effect of violating the Claimant’s dignity or creating a proscribed environment for her – Richmond Pharmacology v Dhaliwal [2009] IRLR 336, Grant v HM Land Registry [2011] IRLR 748 and Weeks v Newham College of Further Education [2012] UKEAT/0630/11/ZT applied; and (2) failing to address and give reasons in respect of section 26(2), especially why it was reasonable for the single remark to have the effect in question. If the Employment Tribunal had applied the law correctly only one result was reasonably possible – namely a finding that the single remark did not have the effect in question. Appeal allowed.

David Richardson J
[2014] UKEAT 0105 – 14 – 2807
Bailii
England and Wales
Citing:
Cited – Richmond Pharmacology v Dhaliwal EAT 12-Feb-2009
EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the . .
Cited – Grant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .
Cited – Weeks v Newham College of Further Education EAT 4-May-2012
EAT SEX DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
Claimant complained that misogynist comments at work had created an offensive environment for her, and that she therefore had been . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 December 2021; Ref: scu.536692

EAT Jurisdictional Points : Worker, Employee or Neither – The Claimant worked almost exclusively for the Respondent for many years unloading pallets of plasterboard and doing general work on site. He was a self-employed sub-contractor with a CIS card. There was no obligation on him to accept work when offered and no obligation on the Respondent to offer him work. It was argued that there was no mutuality sufficient to found worker status, and there were subsidiary arguments as to control, right to use a substitute and degree of integration in the workforce. Held – appeal dismissed. The necessary mutuality existed while the Claimant was working for the Respondent: James v Redcats (Brands) Limited [2007] IRLR 296 considered and applied. There was no error of law in respect of Employment Judge’s approach to the questions of control, substitute and degree of integration.
Cotswold Developments Construction Limited v Williams [2006] IRLR 181, Byrne Brothers (Formwork) Ltd v Baird and Ors [2002] IRLR 96 and Clyde and Co LLP and another v Bates van Winkelhof [2014] UKSC 32 considered and applied.

David Richardson J
[2014] UKEAT 0074 – 14 – 0707
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536691

EAT Redundancy : Collective Consultation and Information – Judge held that when the bulk of a workforce, all or most of whom were employed under fixed term contracts, did not have those contracts renewed, their impending dismissals on expiry of the fixed terms were for a reason not related to the individuals: it was the withdrawal of Government funding for the work.
Since her decision, the Inner House of the Court of Session had decided University of Stirling v University College Union. That emphasised the importance of establishing the reason for dismissal, and that if there was more than one reason, all had to be unrelated to the individual if the dismissal was to be for redundancy for the purposes of s.188 TULR(C)A 1992. It indicated that agreeing and entering into a fixed-term contract was a matter individual to the employee, such that dismissal by reason of its termination could (and perhaps usually would) be such a reason. The judge here did not clearly identify that she had considered the reasons for dismissal of the employees said to number more than the necessary 20 to trigger consultation, and more particularly whether there was more than one reason for their dismissals all on the dates when their fixed terms expired. Accordingly, although it was open for a judge to find that the dismissals here were not for reasons related to the individuals, she had not clearly considered whether there might be other reasons which were so related: if she had done so, and found that a reason was the expiry of a pre-agreed fixed term, she might well have concluded that the consultation duty was not triggered.

Langstaff P J
[2014] UKEAT 0138 – 14 – 0807
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536682

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – PRACTICE AND PROCEDURE – Review
The Claimant appealed a determination against her on liability, and refusal subsequently to review that decision. In part, this was because she said a lay member had been asleep through parts of the evidence. The ET decided it should determine at the review, as a whole panel, whether there had been a material procedural irregularity. It concluded that the member had his eyes closed for periods of time, and on one occasion had been seen by the Judge to be drooling, so as to require to be nudged. Nonetheless it held that there had been no procedural irregularity. On appeal, it was held (contrary to the Respondent’s primary submission that the ET decision should stand unless it could be shown that there was an error of law) that it was not appropriate for the ET to take a decision whether it had itself been innocent of procedural irregularity, though if it decided it had, that decision could be acted upon, and if not, the comments of the Judge and Members as to what had happened would be of importance. It was for the EAT to judge as a primary fact finder whether there had been an irregularity such as vitiated the hearing, and to assess the evidence thus established by asking whether the well-informed objective observer would think there was a real possibility that there had been a material procedural irregularity (considering Stansbury v Datapulse). Having considered the material put before it, the ET concluded that it would have appeared to such an observer, once he knew of the explanation, that the member had shut his eyes because he suffered from dry eye syndrome, and had not been guilty of inattention save for one short episode (on the evidence of some 10 -15 seconds duration) when he had been nudged and had thereafter clearly been alert. This was regrettable, but on its own of trivial significance, and did not appoint to a material procedural irregularity.
Observations made as to the duties of lay members of tribunals who might suffer from conditions which if unexplained in advance might give rise to a suspicion that they were not paying full attention to proceedings.

Langstaff P J
[2014] UKEAT 0518 – 13 – 0404
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536679

EAT Unlawful Deduction From Wages – The Claimants declined to be taken to work at HMP Dartmoor on a road which had been closed following snowfall. On the question whether the Claimants reasonably believed that there were circumstances of danger which were serious and imminent, (section 44(1)(d) and (e) of the Employment Rights Act 1996), the Employment Judge (1) did not resolve an important issue of fact as to whether the Claimants were told that the police had sanctioned use of Prison 4×4 vehicles, (2) did not address the beliefs of the Claimants individually, notwithstanding that some Claimants gave specific evidence as to their beliefs and the reasons for them which required to be addressed and (3) reasoned erroneously that since some colleagues had travelled without difficulty or danger it did not ‘lie in the mouths’ of others to hold a reasonable belief in serious and imminent danger. In these respects the Employment Judge did not deal sufficiently with the issues in the case, and gave reasons which were not Meek compliant.

David Richardson HHJ
[2014] UKEAT 0123 – 14 – 2407
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536683

EAT Practice and Procedure

Langstaff P J
[2014] UKEAT 1502 – 13 – 2406
Bailii
Rules of the Employment Appeal Tribunal 1993 3(1)(c)
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536681

EAT Practice and Procedure : Appellate jurisdiction/reasons/Burns-Barke
Case management
The Claimant’s applications under Rule 3 raising interim appeals against tribunal orders were dismissed as the employment tribunal had subsequently struck out the entire claim. Edem applied. In any event on the merits there were no reasonable prospects and the then ongoing proceedings would be jeopardised.

McMullen QC HHJ
[2014] UKEAT 1598 – 13 – 1106
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.536680

A preliminary hearing at which the respondent was granted an extension of time to enter a response was not so conducted as to create an appearance of bias, and was not unfair.

[2021] UKEAT 2019-000973
Bailii
England and Wales

Employment

Updated: 21 December 2021; Ref: scu.669829

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal / Review
Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and exercised s35(1) Employment Tribunals Act 1996 powers. Application of CPR 3.9(1) factors, so far as material. Strike-out set aside. Remitted to Employment Tribunal for substantive determination.

peter Clark J
[2009] UKEAT 0047 – 09 – 1203
Bailii
Employment Tribunals Act 1996 35(1)
England and Wales
Citing:
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Abegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
Cited – Hansom and others v E Rex Makin and Wright CA 18-Dec-2003
The court considered a strike out application.
Held: Although there might be many cases where the possibility or otherwise of a fair trial is highly important to the exercise of discretion under CPR 3.9. it does not follow that where a fair . .
Cited – Neary v St Albans Girls’ School and Another EAT 9-Jan-2009
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal / Review
Non-compliance with unless order. Automatic strike-out under ET Rule13(2). Additional strike-out order under Rule 18(7)(e) a nullity. Whether . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2021; Ref: scu.342105

EAT CONTRACT OF EMPLOYMENT – Definition of employee
Employment tribunal concluded in the particular circumstances of the case that an agency supplying workers to a third party had entered into contracts of employment with those workers. The EAT held that this was a conclusion the Chairman was entitled to reach. Whilst it will no doubt be an exceptional case where such a finding can properly be made, the fact that it is the end user and not the agency which exercises control over the actual operation of the work does not, as a matter of law, prevent a contract of employment arising between the agency and the employee. Various grounds of challenge considered and rejected.
Elias J said: ‘The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship . .
In other words, if the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship. But if these clauses genuinely reflect what might realistically be expected to occur, the fact that the rights conferred have not in fact been exercised will not render the right meaningless.
. . Tribunals should take a sensible and robust view of these matters in order to prevent form undermining substance . . ‘

Elias P J
[2007] UKEAT 0535 – 06 – 1805, UKEAT/0535/06, [2007] IRLR 560
Bailii, EAT
England and Wales
Cited by:
Appeal from – Consistent Group Ltd v Kalwak and Another CA 18-Sep-2007
Renewed application for permission to appeal. . .
Cited – Consistent Group Ltd v Kalwak and others CA 29-Apr-2008
The court was asked whether the claimants were either employees or workers of the company. They had been engaged to wash cars under nil-hours contracts. . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
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: 20 December 2021; Ref: scu.252469

EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The Employment Judge erred in law in holding that the claims were barred by section 32(2) of the Employment Act 2002.

[2009] UKEAT 0050 – 09 – 1203
Bailii
Employment Act 2002
England and Wales
Citing:
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2021; Ref: scu.331193

[1999] UKEAT 60 – 99 – 2304
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.205094

[1999] UKEAT 1436 – 98 – 1904
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.205110

[1999] UKEAT 42 – 99 – 1404
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.205107

[1999] UKEAT 43 – 99 – 1404
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.205068

[1998] UKEAT 275 – 98 – 2205
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.206358

The company appealed a finding of unfair dismissal. The tribunal found that the response was outside the range of reasonable responses by an employer. He had had a series of unrelated and genuine sickness absences, but had recovered and was fit to work. The tribunal had treated it as an ancapability dsmissal. The company now said it was ‘some other reason’.
Held: The tribunal had erred in misclassifying the basis of the dismissal. Since the tribunal had found the evidence uncontroversial, the appeal tribunal did not need to remit the case. The appeal was allowed.

[1999] UKEAT 762 – 98 – 1304
Bailii
Employment Rights Act 1996 98
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.205109

EAT Unfair Dismissal : Reasonableness of Dismissal – Postal worker dismissed for misconduct (dishonesty). Claim of unfair dismissal unsuccessful. The Tribunal was satisfied that there had been a fair investigation by the employer, founding a genuine belief in the dishonesty alleged, and that the disciplinary and internal appeals processes had been fairly conducted.
The Grounds of Appeal asserted that the Tribunal’s conclusions were ‘perverse’. Neither ground came anywhere close to establishing any such error.
Claimant’s appeal dismissed.

Rec Luba QC
[2014] UKEAT 0054 – 14 – 0807
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536440

The Employment Tribunal dismissed the Claimant’s claim of unfair dismissal on the basis that he did not have two years’ continuous employment. The dispute turned on the start date. Section 211(1)(a) Employment Rights Act 1996 provides that, for these purposes, a period of continuous employment begins ‘with the day on which the employee starts work’. This means the start date of work under a contract with (subject to provisions which did not apply here) the employer in question. The Respondent’s case was that the start date in this case was 2 November 2015; the Claimant’s case was that it was 26 October 2015.
The Tribunal found that the Claimant had done work on the Respondent’s site in the week of 26 October 2015. However, it also properly found that a Statement of Terms had been drawn up with a 2 November 2015 start date, he had been put on payroll with effect from that date, and had begun completing worksheets from that date. The Respondent’s client was also not charged for his work in the week of 26 October 2015. Further, he had been paid pounds 100 in cash on site for the week of 26 October 2015, and had not complained to the Respondent about his pay.
The Tribunal correctly directed itself as to, and correctly applied, the law. Koenig v The Mind Gym Limited, UKEAT/0201/12, considered. In light of the foregoing and other factual findings, the Tribunal had been entitled to conclude that the Claimant had worked in the week of 26 October 2015 under an unofficial arrangement and not under a contract of employment with the Respondent. Its decision was also Meek-compliant. The appeal was dismissed.

[2020] UKEAT 0257 – 19 – 1505
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.650922

EAT Transfer of Undertakings : Transfer – PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Costs
Transfer of Undertakings (Protection of Employment) Regulations 2006 – interplay between reg 3(3)(a)(i) ‘organised grouping of employees’ and question of assignment for purposes reg 4 TUPE
Service provision change of purpose of reg 3(1)(b) having been conceded, the Employment Judge was required to define the ‘organised grouping of employees’ for reg 3(3)(a)(i) purposes and, in the light of that finding, to determine whether the Claimant had been assigned to that grouping for the purposes of reg 4. The two issues were analytically distinct, albeit that there was an overlap in that, for the purposes of considering assignment to a putative ‘organised grouping’, it was first necessary to identify what that grouping consisted of, Eddie Stobart Ltd v Moreman [2012] IRLR 356, EAT, at paragraph 16.
On the first issue, the concept of an organised grouping implies an element of conscious organisation by the employer of its employees, in the nature of a team, which has, as its principal purpose, the carrying out of the activities in question; there must be ‘deliberate putting together of a group of employees for the purpose of the relevant client work – it is not a matter of happenstance (Seawell Ltd v Ceva Freight (UK) Ltd [2013] IRLR 726, Ct Sess, approving the Judgment of Lady Smith in the EAT in that case [2012] IRLR 802, and Eddie Stobart supra).
On the second question, that of a particular employee’s assignment, the starting point was the ECJ’s Judgment in Botzen and Ors v Rotterdamsche Droogdok Mattschappij BV [1985] ECR 519. The question of assignment was one of fact for the Employment Tribunal, Duncan Webb Offset (Maidstone) Ltd v Cooper and Anr [1995] IRLR 633 EAT, but it was not to be assumed that every employee carrying out work for the relevant client is assigned to the organised grouping, Edinburgh Home-Link Partnership v The City of Edinburgh Council UKEATS/0061/11 (10 July 2012, unreported). Whether or not a particular employee was assigned to the ‘organised grouping of employees’ affected by the transfer – and thus entitled to the protection of TUPE – was no mere formality and could only be resolved after a proper examination of the whole facts and circumstances. Being involved in the carrying out of the relevant activities immediately prior to the transfer will not necessarily mean that the employee was assigned to the organised group, Argyll Coastal Services Ltd v Stirling and Ors UKEATS/0012/11 (15 February 2012, unreported).
Adequacy of reasons
When assessing the reasons given by an Employment Judge, it was not for the EAT to read the reasons as if with a fine-tooth comb searching for errors. An Employment Judge was entitled to expect that her Judgment would be read as a whole and with some allowance for the fact that the parties will have been aware of what was in issue and what the evidence was at the hearing. On the other hand, the Judgment would still need to be Meek-compliant and meet the requirements of the ET Rules. Parties were entitled to understand why they won or lost and anyone reading the Judgment should be able to understand how the relevant findings of fact and legal principles had been applied in order to determine the issues. In carrying out that exercise, it was not acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons: appellate courts should not uphold a decision which has failed in this basic task, whatever its other virtues, Anya v University of Oxford and Anr [2001] ICR 847 CA, per Sedley J at paragraph 26.
In the present case the reasons did not disclose that the Employment Judge had engaged with Costain’s case and, if so, what conclusions were reached in that respect. It was, further, unclear whether the Employment Judge had applied the correct test; the reasons given were inadequate to enable the parties to know this for certain and to properly understand what conclusions were reached on central issues (and for what reasons) and, thus, to know when they won or lost.
Appeal allowed and case remitted to differently constituted Employment Tribunal for fresh consideration.
Costs
Upon Costain’s application for costs in the Appeal in the sum of the fees paid, pursuant to rule 34A(2) EAT Rules 1993, as amended. Adopting the same approach as in Horizon Security Services Ltd v Ndeze and Anor UKEAT/0071/14/JOJ, that application was granted in respect of the Second Respondent, ERH, which was thus ordered to pay the Appellant’s andpound;1,600 costs in the Appeal.

Eady QC HHJ
[2014] UKEAT 0048 – 14 – 0207
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006 3(3)(a)
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536437

EAT Practice and Procedure : Review – The claimant recovered over andpound;23,000 compensation at a remedies hearing based primarily on loss of earnings for more than 70 weeks. The employer sought a review of that award.
The application for review was put on the basis that a pending appeal to the Employment Appeal Tribunal in relation to another employee (involved in the same incident and dismissed just a few weeks after it) may result in a finding that that employee had not been unfairly dismissed. If the Employment Appeal Tribunal reached that result it may have some significant bearing on whether the claimant would have been similarly dismissed fairly and without discrimination within a matter of a few weeks of the incident. Accordingly, there could potentially be a case for a significant Polkey reduction in this claimant’s award. The employer asked for a stay of the review application pending the outcome of the pending Employment Appeal Tribunal appeal in the other employee’s case.
The employment judge did not stay the review application but gave it preliminary consideration under Rule 35(3). He found the application had no real prospect of success because the circumstances of the two employees were, in his judgment, materially different.
Appeal allowed. The Employment Judge had, in the particular circumstances of this case, erred in rejecting the review application on the basis that it had no reasonable prospect of success. It is passed that threshold and ought either to have been stayed pending the Employment Appeal Tribunal decision in the related appeal or put through for consideration on its merits. Review application remitted for substantive consideration.

Luba QC Rec
[2014] UKEAT 0045 – 14 – 0907
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536438

EAT TRANSFER OF UNDERTAKINGS – Service Provision Change
A local authority changed to a new contractor for gas servicing work on its council houses. The new contractor accepted that some staff transferred from the old contractor but not all. The remaining employees brought unfair dismissal claims alleging that they had transferred under the TUPE regulations.
The Employment Judge found that those employees had been assigned to an organised grouping and that the activities on which they had been engaged had transferred.
On the new contractor’s appeal, held:
1) The Judge had been entitled to find that the relevant activities has passed from old contractor to new; but
2) The Judge had failed to give adequate reasons as to why he considered that the relevant employees were assigned to an organised grouping in relation to the transferred work.
Matter to be remitted to the same Judge for determination on the ‘organised grouping’ point.

Luba QC Rec
[2014] UKEAT 0007 – 14 – 1007
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536436

EAT Transfer of Undertakings : Transfer – PRACTICE AND PROCEDURE – Case management
The ET found that there had been a TUPE transfer of a solicitors’ practice. The App employer maintained in the EAT that because there had been periods when the business was not carried on lawfully (because the solicitor in charge had been struck off) there could be no transfer of the business under TUPE. It was not clear if the point had been taken below but the EAT was satisfied on the facts as found that it could not be said that the business was carried on for an unlawful purpose as such and that it could therefore be transferred for the purposes of TUPE.
Following the hearing on TUPE in the ET there was a further hearing to deal (basically) with remedies while the App was seeking to appeal on the TUPE issue. The App sought unsuccessfully to adjourn that hearing on the basis of the prospective appeal. He had chosen not put in any evidence in relation to remedies. On the morning of the hearing, the App did not attend and sent in a sick note. Counsel and the App’s associate did attend but it was clear they were only in a position to apply again for an adjournment and there were no plans to challenge the remedies sought by the C. The EJ was suspicious of the sick note and found that the app for an adjournment on the basis of the App’s non-attendance was simply designed to add spurious weight to the application on basis of the proposed appeal. He did not adjourn to make further enquiries in relation to his suspicions about the sick note and the App said that this was an obvious step which should have been taken in fairness to him.
The EAT found that this was one of those (possibly rare) cases where fairness did not require such a step. The crucial considerations were:
(1) there was no indication that the App’s personal attendance was in fact necessary or what he was going to ‘bring to the party’;
(2) the App’s associate who had been closely involved in the case was present and representing the App and the EJ’s grounds of suspicion were aired by the C’s rep and the EJ in front of him; but he made no application for further time to deal with the points relied on;
(3) in the circs the EJ was entitled to make his finding of fact about the true motivation of the App.

Shanks HHJ
[2014] UKEAT 0268 – 13 – 2205
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536433

EAT Unfair Dismissal : Compensation – Claimant’s appeal
The question of grossing up was a live issue before the Tribunal and the Respondent accepted that, in order to achieve an award that was just and equitable, grossing was required to the extent the award exceeded andpound;30,000. The Employment Tribunal accepted this point in its Review Judgment but failed to then make the necessary correction. Having accepted an error in this regard, it was simply inconsistent for the Tribunal to then confirm its original Judgment.
Further, it was agreed that there were errors of calculation in the original Judgment; again, apparently accepted by the Tribunal’s Review Judgment but there was then an error in the failure to make the necessary corrections.
On the Claimant’s next ground of appeal, the question arose as to the basis upon which the Tribunal had limited her claim. Neither side had approached this as being a case where there had been a break in the chain of causation. Both saw it as about adequacy of mitigation. There was a real difficulty in understanding the Tribunal’s decision as being one of a break in causation. This term was used for the first time in the Review Judgment. This was not a case where the Claimant had taken up an entirely new career path and the facts found by the Tribunal did not obviously speak of a break in the causative chain. There was no explanation for the Tribunal’s finding that this is what had occurred and the language used seemed only to address the question of reasonableness of mitigation. If this was a finding of a break in the chain of causation then it was inadequately reasoned.
Further, on the question of mitigation, the Tribunal had failed to ask the correct question. It needed to identify: what step should have been taken; the date on which that step would have produced an alternative income; and then to reduce the compensation by the amount of the alternative income (Gardiner-Hill v Raymond Berger Technics Ltd [1982] IRLR 498). The Tribunal’s Reasons – whether for the original Judgment or on Review – failed to demonstrate that this exercise was undertaken.
The Claimant’s appeal was allowed on the above grounds.
Although the Claimant’s third ground of appeal (relating to the 60% withdrawal factor on the pension award) did not succeed, given the view formed on the other grounds of appeal (both the Claimant’s and the Respondent’s), this point would go in any event.
The Respondent’s appeal
Accepting that the Tribunal was not obliged to adopt the guidelines or any particular approach and that it would not be an error of law to find pension loss continuing for longer than the loss of earnings in terms of basic pay, it remained the case that the Tribunal’s reasoning for its conclusion on pension loss was simply opaque. The Respondent could not understand why finding that the Claimant’s taking up the new position with Artslink broke the chain of causation in terms of its liability for basic pay but had no impact on pension loss (and see per Elias LJ in Aegon UK Corp Services Ltd v Roberts[2009] IRLR 1042, CA).
If the Tribunal was really holding that there was no break in the chain of causation but this was all about mitigation, the reasoning would still be inadequate. This is because the Tribunal did not adopt the approach laid down in Gardiner-Hill (see above).
Similar points arise in respect of the Respondent’s second ground of challenge to the Tribunal’s finding, in respect of the Claimant’s mitigation for the first year of unemployment. The Tribunal’s reasons were simply inadequate in this respect.
Respondent’s appeal also allowed.
Case remitted to a new Tribunal for fresh consideration of all points on remedy.

Eady QC HHJ
[2014] UKEAT 0064 – 14 – 2306
Bailii
England and Wales
Cited by:
See Also – Somerset County Council v Chaloner EAT 23-Jun-2014
EAT Unfair Dismissal : Compensation – Claimant’s appeal
The question of grossing up was a live issue before the Tribunal and the Respondent accepted that, in order to achieve an award that was just and . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2021; Ref: scu.536434

EAT Equal Pay Act : Equal Value – Material factor defence and justification
The Employment tribunal was entitled to conclude (a) that the Claimant’s work was of equal value to that done by a male comparator, Mr Hadley and (b) that the Appellant had failed to make out the genuine material factor defence. Appeal dismissed.

Peter Clark HHJ
[2014] UKEAT 0066 – 14 – 0309
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536389

EAT Practice and Procedure : Postponement or Stay – The Employment Judge failed properly to exercise her case management powers to adjourn an oral application for a review, of a decision made at a hearing, to permit the appellant the opportunity to reflect on what course he wished to pursue. She should also have explained to him that one option available to him was to make a written application for a review rather than proceed immediately with an oral application.

Wilkie J
[2014] UKEAT 0354 – 13 – 0209
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536382

EAT Practice and Procedure : Costs – Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 Rule 40(2) and (3)
Simply because the Employment Tribunal’s costs jurisdiction was engaged, costs did not follow the event: the Tribunal still needed to be satisfied that it would be appropriate to make an award of costs, see Robinson and Another v Hall Gregory Recruitment Ltd UKEAT/0425/13, paragraph 15, and Criddle v Epcot Leisure Ltd [2005] EAT/0275/05.
In this case, it was apparent that the Employment Judge had indeed adopted such a two-stage process and permissibly exercised her discretion to award costs. The first ground of appeal was dismissed.
As to the amount awarded, there was no requirement that a Schedule of Costs had to be served on the paying party and the Tribunal had a broad discretion under the 2004 Rules. That said, it was unclear as to whether the Employment Judge had exercised any independent scrutiny of the sums claimed by the Respondent. If she had done so, the Judgment did not adequately disclose her reasoning in this regard. The appeal on the second ground was therefore allowed and the matter remitted to the same Employment Judge for re-hearing on the question of the amount of the award of costs only.

Eady QC HHJ
[2014] UKEAT 0508 – 13 – 0606
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536387

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – The question for the Employment Judge to decide was whether, for the purpose of a bonus scheme, the Claimant had a live written or final warning at the date the relevant payment was due. The case turned on whether there was a disciplinary meeting (as opposed to just a performance review meeting) on 4 April 2012 leading to the confirmation of a final written warning on 26 April 2012. On this subject there was a conflict of evidence between the Claimant and the Respondent’s Mr Bishop. The Employment Judge decided this issue in the Claimant’s favour, but he did not make any clear findings of fact, and gave no sufficient or clear reasons for the decision reached. The terms of the letter dated 26 April 2012 were not decisive of the question he had to answer, and he had not explained why it was not necessary to resort to the burden of proof rather than make findings on the evidence.

David Richardson HHJ
[2014] UKEAT 0457 – 13 – 0605
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536386

EAT Contract of Employment : Damages for Breach of Contract – The Claimant accepted a job which provided for a salary range, within which there were a number of incremental steps from the lowest level (at which she started) to the top, the ‘rate for the job’. She was assured by an HR officer of the Employer that she would be granted progression through the incremental steps if her performance was satisfactory. There were to be annual progression reviews. However, the contract of employment when setting out the terms for progression expressly stated that there was no obligation on the employer to grant progression, and provided not that progression was solely dependent on performance but ‘included’ performance. The EHRC was subject to severe financial constraints arising from a tightening of Government funding, and did not award the claimant (or anyone in her position) either progression or a progression review. An Employment Judge’s decision that the contract was to be construed so that she had a right to progression subject only to satisfactory performance contradicted the clear meaning of the contract, and was set aside. The EHRC was nonetheless in breach of contract by failing to hold a review, but the reality was such that the claimant would not have been awarded an incremental increase because the EHRC’s finances would not permit the payment of such an increase to the claimant and those in her position.

Langstaff J P
[2014] UKEAT 0011 – 14 – 0406
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536375

EAT Unfair Dismissal : Reasonableness of Dismissal – DISABILITY DISCRIMINATION – Disability related discrimination
The Appellant was employed in a civilian capacity by the Ministry of Defence and lived in shared accommodation provided by the Respondent. He was found to be in possession of video and still images of anther employee which had been taken by covert filming while he was in the shower. The Appellant pleaded guilty to an offence of outraging public decency and was sentenced to a three year Community Order by the Crown Court. The Court accepted his mitigation that he suffered from Asperger’s syndrome and a number of other mental disorders. As a result of disciplinary proceedings the Appellant was then dismissed by the Respondent for gross misconduct. The Employment Tribunal found that the dismissal was unfair because it was outside the range of reasonable responses. It also found that the dismissal was related to his disability, namely Asperger’s syndrome and breached section 15 of the Equality Act 2010. The Respondent appealed.
Held, (1) that the Employment Tribunal had erred in law because it substituted its own view in assessing the reasonableness of the dismissal; (2) that the Employment Tribunal erred in law in its assessment of proportionality under section 15 of the Equality Act, as it failed to have regard to relevant considerations and focused entirely on what the Crown Court had said when sentencing the Appellant in the criminal proceedings.
The case would therefore be remitted to a differently constituted Employment Tribunal.

Singh J
[2014] UKEAT 0067 – 14 – 1006
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536377

EAT Practice and Procedure : Amendment – Striking-out/dismissal
Amendment to add claim of unfair dismissal based on constructive, rather than actual dismissal wrongly permitted. As to actual dismissal, relied on by the Claimant in Form ET1, a lesser sanction short of dismissal was applied on internal appeal. The original dismissal ‘vanished’ (see Roberts v West Coast Trains (CA)). Accordingly the claim ought to have been struck out.
Respondent’s appeal allowed on both amendment and strike-out.

Peter Clark HHJ
[2014] UKEAT 0533 – 13 – 1306
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536376

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – The central question was why C’s manager decided to refuse his request (made in August) for holiday in early December. He said he believed it to be company policy that no holiday should be taken this month. A written policy permitting holidays until 15th December had been signed for by him just before the start of August. The ET did not reconcile this with the manager’s expressed belief, though possibly suggested that it was because the manager had worked until recently in a different part of the business where such holidays were not permitted; it also found that the policy re taking holiday in December had changed (probably in October, though this was unclear), and by implication the manager would not have known of the change at the time of his decision. The evidence to support a relevant change in October was unclear, and the ET might have been in error in supposing that the date of the introduction of the policy for which the Manager had signed receipt in July, whereas the employer’s documents showed it to have been November the year before. Held that the reasoning on a crucial issue was insufficiently clear, and it was remitted back to the same ET for reconsideration.

Langstaff P J
[2014] UKEAT 0028 – 14 – 1706
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536378

EAT Practice and Procedure : Costs – It was argued by the Appellant that, by virtue of the definition of ‘costs’ in rule 38(3) of the Employment Tribunal Rules of Procedure 2004, a receiving party who employed a qualified in-house legal representative was unable to recover costs in respect of the time spent by that representative, since it did not fall within the words ‘fees, charges, disbursements or expenses incurred by or on behalf of a party”. It was also argued that the Employment Judge had not properly addressed the question whether it was proportionate to award the whole of the costs.
Held: appeal dismissed. It had long been the position that such costs were recoverable: see Wiggins Alloys Ltd v Jenkins [1981] IRLR 275. The 2004 Rules did not change the position. The words in question were sufficiently wide to enable an employer to recover costs in respect of time spent by a qualified in-house representative. The Employment Judge had properly addressed the question whether it was proportionate to award the whole of the costs.

David Richardson HHJ
[2014] UKEAT 0488 – 13 – 1606
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536388

EAT PRACTICE AND PROCEDURE – Amendment – The Employment Appeal Tribunal accepted that the Employment Judge had erred in law in her application of the Selkent principles on whether to allow certain applications to amend the claims in this litigation but upheld her application of those principles in respect of other applications to amend.

Wilkie J
[2014] UKEAT 0258 – 13 – 0109
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536380

EAT Unfair Dismissal : Reasonableness of Dismissal – Appeal against dismissal on grounds of (a) perversity and (b) substitution. No evidence of either. Appeal dismissed.

Birtles J
[2014] UKEAT 0499 – 13 – 2808
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536294

EAT Practice and Procedure : Review – The Claimant applied for a review of a judgment. The Employment Judge refused the application on preliminary consideration. The Claimant appealed the refusal to hold a review (he also appealed the judgment itself, but was out of time as regards that appeal).
Held: on careful analysis of the issues and reasons of the Employment Tribunal, it was plain that the Employment Tribunal had decided the issues between the parties and given judgment accordingly. The mere fact that the Employment Tribunals’s reasons could have been improved in one respect was not a sufficient reason for ordering a review where, as here, the Employment Judge was entitled to conclude that there was no reasonable prospect of the judgment being varied or revoked.

David Richardson HHJ
[2014] UKEAT 0363 – 13 – 2908
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536297

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – The absence of fact-finding in relation to issues of (a) contribution and (b) wrongful dismissal required the appeal to be allowed and the case to be remitted to the same Employment Tribunal for further consideration on submissions only. – Jafri and Burrell (CA) considered on proper disposal of appeal.

Peter Clark HHJ
[2014] UKEAT 0513 – 13 – 2306
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536296

EAT Unfair Dismissal : Reasonableness of Dismissal – The Employment Judge was entitled to find on the available test the reason the dismissal was neither redundancy nor some other substantive reason as the dismissal was unfair. Polkey correctly applied. Appeal dismissed.

Birtles J
[2014] UKEAT 0470 – 13 – 2808
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536293

EAT Practice and Procedure : Amendment – The Employment Judge refused an application for permission to amend the ET1 to claim victimisation. She approached the application on the footing that there was no clear legal basis for the amendment.
Held: there was a clear legal basis for the amendment; for this and other reasons the Employment Judge’s approach to the application was flawed; and if she had approached the application correctly in law she would have granted it. Permission to amend granted (Jafri v Lincoln College [2014] EWCA Civ 449 considered and applied).

David Richardson HHJ
[2014] UKEAT 0534 – 13 – 2205
Bailii
England and Wales
Citing:
Cited – Jafri v Lincoln College CA 16-Apr-2014
The claimant’s complaint of unfair dismissal for making a protected disclosure had been rejected by the ET and EAT. The court was asked whether the claimant could rely upon a point not previously raised.
Held: The appeal failed. Where a court . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2021; Ref: scu.536280

EAT Disability Discrimination – Reasonable adjustments
The Employment Tribunal was entitled to find the employer did not make reasonable adjustments – not requiring the employee, who was to be redeployed because his own job had disappeared to attend, a formal interview – in consequence of his disability.

Mitting J
[2014] UKEAT 0008 – 14 – 2207
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536285

EAT Disability Discrimination : Disability – The Claimant had been employed at the First Respondent’s stores, most recently as an assistant manager. She suffered from stress, anxiety and depression, for which she was prescribed drugs and received counselling. At a Pre-Hearing Review the Employment Tribunal had to determine the issue whether she had a disability within the meaning of section 6 of the Equality Act 2010. The Employment Judge (sitting alone) found that, although the Claimant did have a disability, and that it was substantial, it was not long-term, because the substantial effects on her normal day to day activities had not lasted for more than 12 months. The Claimant appeared on the grounds that the Employment Tribunal had failed to address the question whether her disability was being controlled by drugs (the ‘deduced effects’ point) and whether its effects were likely to recur even if they had ceased to occur (the ‘likelihood of recurrence’ point).
Held, the Employment Tribunal had erred because it had not addressed the deduced effects point and the likelihood of recurrence point. However, what answer would have been given to those points was not clear and it was not possible to determine those questions as a matter of fact. Accordingly, the case would have to be remitted to a differently constituted tribunal for redetermination in accordance with the judgment of the appeal tribunal.

Singh J
[2014] UKEAT 0424 – 13 – 2006
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536283

EAT Practice and Procedure – 1. The ET was wrong, in the absence of the Respondent, to raise with the Claimant a further claim she might have made and to adjudicate upon it, the Appellant having no notice of it and no opportunity to respond.
2. In any event the ET failed to spot that there was a statutory jurisdictional defence to that claim which it was appropriate to permit the Appellant to raise at the appeal for the first time.

Wilkie J
[2014] UKEAT 0032 – 14 – 2706
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536284

EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal – UNFAIR DISMISSAL – Constructive dismissal – Bus drivers who were required to work from a different depot following a TUPE transfer of the bus route on which they worked resigned (some a month after the transfer) and complained of unfair dismissal, relying on Regulation 4(9) of TUPE and the EAT decision in Musse v Abellio. Although the decision by the EJ was muddled, and flawed in a number of respects, he came to a central conclusion that in the context of Bus Drivers working in London, and the contractual arrangements which they had enjoyed under which they could have been required to change base to a depot more inconvenient that the one to which they objected, the change of location did not amount to a substantial change in their working conditions. Since in the particular circumstances of the case there could only be a fundamental breach of contract if the change were thought substantial, this conclusion meant there was no dismissal either at common law or as provided for by Regulation 4(9). Musse was not authority that if there was change from one base depot to another, in breach of contract following a transfer, it would necessarily amount to either a fundamental breach or a substantial change in working conditions: rather, it was authority that this was question of fact and assessment for the judge to determine, which if he approached matters correctly and came to a conclusion which was not perverse, would stand. The judge’s conclusion here could not be said to be perverse, and therefore the appeal against it failed

Langstaff P J
[2014] UKEAT 0042 – 14 – 2305
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536279

EAT Unfair Dismissal : Reasonableness of Dismissal – It was part of the Claimant’s case that she was entitled, by virtue of the Respondent’s Redeployment Policy and Procedure, to a trial period in a job which she was offered in the course of a redundancy exercise. The ET found that she was not entitled to a trial period, but its reasoning was not Meek compliant. Issue remitted to the same Employment Tribunal for reconsideration.

David Richardson HHJ
[2014] UKEAT 0507 – 13 – 2705
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536281

EAT Unfair Dismissal : Reasonableness of Dismissal – The Employment Tribunal failed to consider for itself the fairness of the dismissal under Employment Rights Act 1996 section 98(4). Miss Perry v Imperial College Healthcare NHS Trust UKEAT/0473/130 and Ms Brito-Babapulle v Ealing Hospital NHS Trust UKEAT/0358/12 applied. Case remitted to a differently constituted Employment Tribunal to consider the fairness of the dismissal. Original decisions as to the reason for the dismissal and the adequacy of the investigation into gross misconduct to stand.

Slade J
[2014] UKEAT 0047 – 14 – 1206
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536282

EAT Unfair Dismissal : Compensation – CONTRACT OF EMPLOYMENT – Damages for breach of contract
Appeal as to 4 grounds relating to compensation awarded for constructive dismissal. Appeal dismissed on 3 grounds. Appeal allowed on Ground that the Employment Judge erred in awarding compensation based on earlier salaried position and not the salary of the position held by the employee at the EDT: GAB Robins (UK) Ltd. v Triggs [2008] ICR 829 at paragraph 34 per Rimer L J applied.

Birtles J
[2014] UKEAT 0208 – 13 – 2008
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536287

EAT Unfair Dismissal : Procedural Fairness or Automatically Unfair Dismissal – The Employment Judge failed to follow the case law on gross misconduct notably Orr v Milton Keynes Council [2011] ICR 704 at paragraph 78 per Aikens LJ with the result that he substituted his decision on the disciplinary hearing and the appeal for that of the employer. Appeal allowed on the ground for unfair and wrongful dismissal.
Appeal on remedies dismissed. The result was a fair dismissal.

Birtles J
[2014] UKEAT 0454 – 13 – 1508
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536002

EAT Trade Union Rights : Action Short of Dismissal Detriment and dismissal
Employment Tribunal failed to consider Respondent’s explanations for detrimental treatment/principal reason for dismissal on the causation issues in s.146 and 152 Employment Rights Act 1996 in relation to participation in the activities of an independent trade union at an appropriate time; erred in its approach to the burden of proof; took too broad brush an approach to the trade union activities in question, failing to address whether they were at an ‘appropriate time’; and drew inferences without proper evidential basis to support them. Case remitted to differently constituted ET for fresh consideration.

Simler DBE J
[2014] UKEAT 0027 – 14 – 1408
Bailii
Employment Rights Act 1996 146 152
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536001

EAT Trade Union Rights : Action Short of Dismissal – PRACTICE AND PROCEDURE – Costs
The claimant, a member of WEU an independent trade union, made 21 claims of detriment for taking part in its activities, and for race discrimination against him as an Englishman. He succeeded on only four, against which the Respondent appealed. The EAT considered analytically the ET’s reasoning on each of the four trade union claims and found errors of approach in each one. On the findings there was no reason to remit the claims to the ET and they were dismissed.
The Respondent was ordered to pay part of the Claimant’s costs in the EAT since it should not have argued that the union was not independent of its influence.

McMullen QC J
[2014] UKEAT 0352 – 12 – 1007
Bailii
England and Wales
Citing:
See Also – North Essex Partnership NHS Foundation Trust v Bone EAT 30-Sep-2013
EAT Does the certificate of independent of the trade union given on 27 June 2013, for which the EAT had by statute to stay the instant appeal, provide protection to the Claimant for his activities and membership . .
Remitted from – Bone v North Essex Partnership NHS Foundation Trust CA 15-May-2014
The claimant said that he was the representative of members of the Workers of England Trade Union at the respondent hospital. He claimed detriment, but the empoyer denied that it was an independent union allowing him protection under the Act. Since . .

Cited by:
Appeal from – Bone v North Essex Partnership NHS Foundation Trust CA 1-Feb-2016
The appellant was a political activist in the ‘Workers of England Union’ and a nurse employed by the respondent. He alleged race discrimination, and detriment for his membership of what he said was an independent trade union, saying that the . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2021; Ref: scu.536000

EAT Unfair Dismissal : Constructive Dismissal – The claimant resigned and claimed that the respondent had breached the contract of employment by refusing to allow him to attend his place of work. The respondent denied that. There was evidence of letters in which the respondent’s senior managers stated the claimant could attend work. The claimant’s evidence was the site manager refused to allow him to do so. The site manager denied having done so. The ET rejected the claimant’s evidence. The claimant argued that the ET had erred in law by deciding to reject his evidence because he had not protested at the time, when in fact he had.
Held: appeal dismissed. The ET was entitled to reach its view on credibility by the method it explained. The ET did not ignore evidence. They took it all into account and gave a cogent reason for preferring the evidence led on behalf of the respondent to that of the claimant.

Lady Stacey
[2014] UKEAT 0013 – 14 – 2706
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.535999

EAT Unfair Dismissal : Reasonableness of dismissal
The Claimant’s appeal allowed forward to Full Hearing on two points:
(1) related to money claims, now resolved
(2) question of whether the Respondent had taken reasonable steps to find alternative employment for the Respondent prior to some other substantial reason dismissal.
On the evidence and findings of fact the Employment Tribunal entitled to conclude that they had. Dismissal fair.
Appeal dismissed.

Peter Clark HHJ
[2014] UKEAT 0535 – 13 – 1605
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.535998

EAT UNLAWFUL DEDUCTION FROM WAGES
The Employment Judge found unlawful deductions from wages in relation to Claimant’s London Weighting Allowance without first determining adequately or at all, or by reference to relevant and material findings of fact, what wages were properly due to him. The Employment Judge erred by having regard to wholly irrelevant considerations that post-dated the contract; and by failing to explain or determine how an internal, generic form not made available to the Claimant could affect his contractual entitlement to salary or other emoluments.
Despite the limited value of the case in relation to the Claimant alone, the case had potentially wide implications for the Respondent beyond the Claimant’s case only. Given the fundamental failings, including the failure by the Employment Judge to make findings of fact relevant to the issues that required determination, it was proportionate and in accordance with the overriding objective to remit to a fresh tribunal to start again.

Simler J
[2014] UKEAT 0527 – 13 – 1305 (Unl
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.535995

EAT Practice and Procedure : Amendment – In a claim which asserted unfair dismissal, focussing upon unfair selection for redundancy and a failure to provide suitable alternative employment, an EJ allowed an amendment by which the Claimant sought alternatively to argue that her dismissal was automatically unfair because the rest of her team (with one of whom she had compared herself for the purposes of establishing unfair selection) had been transferred under TUPE whilst she had not. The exercise of her discretion was flawed, because the Judge materially thought that the original claim asserted that the team had been transferred to new employers, when it did not; that the new claim was simply a re-labelling of the same facts as the original; and the Appeal Tribunal could not reasonably interpret her to be saying merely that much of the same factual background would have to be explored. This was an error of law. Exercising its own discretion, especially in the light of Selkent v Moore, the EAT held nonetheless that the amendment should be allowed.

Langstaff P J
[2014] UKEAT 0096 – 14 – 1405
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.535997

EAT Unfair Dismissal – Dismissal/ambiguous resignation
On the parties’ pleaded cases the Claimant asserted that he had been dismissed by the Respondent, the Respondent that he had resigned. Both cases rejected by the Employment Tribunal, who found that the employment contract continued.
Respondent’s appeal allowed. On the Claimant’s case the employment had terminated. That was the basis of his claim of unfair dismissal. He could not resile from that position. Gunton and Geys considered.

Peter Clark HHJ
[2014] UKEAT 0509 – 13 – 0805
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.535996

[2021] EWHC 3013 (Admin)
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.669805

EAT Transfer of Undertakings : Transfer – The Employment Judge erred in law by holding that a transferee assumed responsibility as employer for employees of a transferor as referred to by the Court of Justice of the European Union in Celtec v Astley [2005] ICR 1409 when they consulted employees and reassured them that they would be offered employment. Further, the Employment Judge erred in determining the date of the transfer of the undertaking by reference to the date on which he considered that the transferee assumed responsibility for the transferor’s employees. The reference in Celtec is to responsibility as employer by operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006 not by the wishes, actions or intentions of the parties. The date of the transfer of the undertaking dictates the date when the contracts of employment transfer not vice versa. Appeal allowed. Case remitted to a different Employment Judge to determine the date of the transfer of the undertaking.

Slade DBE J
[2014] UKEAT 0440 – 13 – 0108
Bailii
England and Wales

Employment

Updated: 18 December 2021; Ref: scu.535552

EAT (Practice and Procedure : Review – Review of an order for strike out following an unless order. The Claimant made claims of unfair dismissal and discrimination. At the start of a full hearing the Employment Tribunal asked for clarification of the case. The Respondent drafted a list of questions to be answered. The ET made an unless order, to the effect that the answers must be provided in 24 hours. Answers to some questions were provided, and some further information was provided a few minutes after the deadline. The ET decided that the answers were insufficient and that the order had not been complied with. The ET then sat, as a three person Tribunal, and refused a request for review of the strike out order which had been made in light of non-compliance. It refused review under rule 35(3).
The Claimant argued that the order should be reviewed and the case remitted for a full hearing.
Held: the case should be sent for a full hearing. The information supplied by the Claimant was sufficient to give notice of her case. The Respondent had been prepared for a full hearing and the questions raised by the ET had resulted in some confusion. The ET had not shown in their reasons that they had fully considered all submitted to them at the stage of review and had erred in law by not doing so. In all of the circumstances the EAT was in as good a position as the ET to consider the review. The interests of justice required the decision to strike out to be reviewed to enable the case to be determined on its facts.

Stacey Lady
[2014] UKEAT 0003 – 14 – 2207
Bailii
England and Wales

Employment

Updated: 18 December 2021; Ref: scu.535551

EAT Transfer of Undertakings – TUPE 2006 reg 3(1)(b) and (3) – service provision change
(1) Continuity of client
Applying Hunter v McCarrick [2013] IRLR 26, CA and SNR Denton UK LLP v Kirwan UKEAT/0158/12, ‘the client’ for the purposes of s 3(1)(b) had to be the same client. There was (per Elias LJ in Hunter) no basis for seeking to apply a purposive construction to ‘the client’ for these purposes (there was no underlying EU provision requiring a purposive approach; this was a purely domestic provision).
In the present case, on the Tribunal’s findings of fact, there was no basis for the conclusion that there was continuity of the client: PCS had been engaged to provide security by Workspace plc whereas Horizon was engaged by the London Borough of Waltham Forest.
Given the facts of this case, it was only possible to conclude that PCS had not met the burden upon it of showing that there was continuity of client for the purpose of demonstrating a service provision change. That being so, the decision of the Employment Tribunal would be quashed and a finding that there was no relevant transfer substituted.
(2) Task of short-term duration
Applying Swanbridge Hire and Sales Ltd v Butler and ors [2013] UKEAT/0056/13, the question of intention for the purposes of reg 3(3)(a)(ii) required an assessment of the client’s intention immediately before the purported service provision change. The Employment Tribunal in the present case had wrongly focused on the position at the time of the hearing.
The Employment Tribunal had further erred in looking at the activities rather than the task in connection with which they were being carried out. In the present case, the Employment Judge should properly have looked at the intention of LB Waltham Forest immediately prior to its contract with Horizon in relation to the task that was to be carried out. On anyone’s case, that was to guard the premises pending demolition (with a view to the building of a new supermarket). Whether that was ‘short-term’ required an assessment of the period of time envisaged for this task. When assessing whether that (8-9 months) was ‘short-term’, the duration of the past task could be relevant. This was, however, a matter for an Employment Tribunal to determine and more than one outcome was possible. Applying Jafri v Lincoln College [2014] EWCA Civ 449, it would not be open to the EAT to simply substitute its view as to the answer to this question.
Order:
The Appeal be allowed and the decision of the Employment Tribunal PHR Judgment be substituted for a decision that the Claimant’s employment did not transfer to the Second Respondent.

Eady QC J
[2014] UKEAT 0071 – 14 – 1905
Bailii
England and Wales

Employment

Updated: 18 December 2021; Ref: scu.535550

The claimant had been represented at his claim before the employment tribunal by his wife, acting as a lay representative. She asked to be allowed to withdraw the complaint. Without asking her, the complaint was dismissed, and costs awarded against the claimant. He now appealed saying that the tribunal, knowing he was not represented by a lawyer, should have ensured a thought through decision.

Arden, Christopher Clarke LJJ, Barling J
[2014] EWCA Civ 1083
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
England and Wales
Citing:
Cited – Gee v Shell UK Ltd CA 24-Oct-2002
The claimant sought an award for unfair dismissal. A similar case had been decided against another worker, and the respondent warned that it would want its costs. The tribunal gave her a warning that she was at risk of a costs order. She withdrew . .
Cited – Tait v The Royal College of Veterinary Surgeons PC 20-Mar-2003
PC The Disciplinary Committee of the RCVS . .
Cited – Mensah v East Hertfordshire NHS Trust CA 10-Jun-1998
An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
Cited – Adese v Coral Racing Ltd EAT 5-Aug-2005
EAT The claimant appealed on the basis that he had been treated unfairly by an employment tribunal by reason of an unjust costs warning; this placed such pressure upon him that he felt obliged to abandon his . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 December 2021; Ref: scu.535446

Mrs Nagesan’s contract specified no retirement age. She was dismissed on attaining 60. The employers disputed the tribunal’s jurisdiction, saying they had written to all employees, including Mrs Nagesan, purporting to introduce a new retiring age of 60 for all. Mrs Nagesan had refused to accept the new terms and had maintained that no specific retirement age applied to her. The employers claimed that a new contract of employment was in force with Mrs Nagesan which did incorporate this new retirement age. The industrial tribunal rejected this contention, finding that ‘there was no retirement age of 60 in Mrs Nagesan’s case’, and the EAT dismissed the employers’ appeal. ‘All that the evidence amounts to, in my judgment, is that the Patels were attempting to impose on her a contract with a term that she retire at 60, an imposition which she resisted. If one tests it with Lord Fraser’s words in mind, by asking what the employee’s reasonable expectation at the time was, it clearly was not that she would have to retire at 60. [Counsel for Mrs Nagesan] puts it in this way: he says you cannot talk of a group expectation when her position is unique. A concept of a normal retiring age simply does not apply. In this context, I would read the words of the appeal tribunal in the final paragraph of their judgment: ‘The contention on behalf of the employer was that, because all the other employees had been persuaded to accept 60 as their retiring age for the future, that became the ‘normal’ age for retirement and the employee’s case therefore failed. We accept the contention of the employee that, as the ‘person in charge’ with responsibilities which statute imposes upon an individual holding that office, she was in a unique position. We consider that there was ample evidence upon which the tribunal could find that there was no retirement age specified and that accordingly the statutory retirement age of 65 now applies, there being no other ‘normal’ retirement age. It is noteworthy that at least one other employee had been employed when already over the age of 60.”

McCowan LJ
[1995] ICR 988
England and Wales
Citing:
Cited – Age Concern Scotland v Hines EAT 1983
An employee in a unique position within a company could not have a normal retirement age. ‘For [Miss Hines] it was argued that she fell into a category of one, being the only counselling organiser employed by the appellants, and that there were . .

Cited by:
Cited – Dormers Wells Infant School v Gill EAT 16-Jul-1999
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Wall v The British Compressed Air Society CA 10-Dec-2003
The applicant was employed as director-general, with his contract stating that his retirement age would be 70. Nobody else had a similar occupation within the organisation, and he said this therefore constituted his ‘normal age’ for retirement, . .
Cited – Wall v British Compressed Air Society EAT 7-Feb-2003
‘To the question ‘was there a normal retiring age for an employee holding the position held by Mr Wall immediately before his dismissal?’ the answer, in our view, is ‘yes, the only employee holding that position was Mr Wall himself, and it was 70′.’ . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 December 2021; Ref: scu.190501

The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He applied for a review.
Held: The court was asked whether, and in what circumstances, where the rules precluded a review on the ground that new evidence was available, a review based on the availability of fresh evidence might be open. The later rule had to be considered to be ‘keeping an eye’ on the terms of the prior rule 13(1)(d). The interests of justice ground for review was restrictively construed, and in deciding what the interests of justice require, the Tribunal should look not only at the interests of the employee, but also at the interests of the employer and of the general public. Philips J said: ‘But I do think it necessary . . to find some other circumstances, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, there are the interests of the employee . . One also has to consider the interests of employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one’s sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to applied, either way because one day a case may arise the other way round. So plainly, their interests have to be considered.
But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be regarded as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry.’
Phillips J upheld the tribunal’s refusal, saying: ‘The difficulty comes in the relationship between paragraphs (d) and (e) of rule 12 (1). The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals. But I do not think that it can embrace a case where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d). And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d), would fail under paragraph (e) also. Paragraph (e), I think, exists for the case which, although it may be put forward under paragraph (d), has in it some special additional circumstance which leads to the conclusion that justice does require a review.’
Having pointed out that a claim under head (d) was hopeless because the Claimant knew the fact in question and had simply failed to appreciate its materiality, he said: ‘If the case were to succeed, in my judgment, it would have to be under rule 12 (1) (e), that ‘the interests of justice require such a review’. Well, now, what are the interests of justice in a case like this? One view is expressed by the majority of the tribunal; another view is expressed by the dissenting member. It is necessary, it seems to me, to weigh a number of matters, bearing in mind first of all that paragraph (e), in a case of this kind. has to be applied with one eye on paragraph (d). I put it that way. I have said, I do not regard them as mutually exclusive. But I do think that it is necessary, in a case which otherwise falls within paragraph (d) – when I say ‘falls within’ paragraph (d), I mean a case which would be put forward under paragraph (d) – to find some other circumstance, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one’s sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered.
But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review.’

Phillips J
[1975] ICR 395
Industrial Tribunals (Industrial Relations Etc) Regulations 1972 Sch, r12
England and Wales
Cited by:
Applied – General Council of British Shipping v Deria and Others 1985
Where an Industrial Tribunal’s decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Reith and others v British Airways Plc EAT 29-Oct-1991
. .
Cited – Blockleys Plc v D Miller EAT 30-Jul-1992
Granting review after appeal to EAT had failed would be abuse of process. . .
Cited – Race (T/A Metframe Service Co) v Romaine EAT 5-Oct-1995
. .
Cited – O’Neill v Governors of St Thomas More RC School EAT 12-Oct-1995
The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged . .
Cited – Akzo Coatings Plc v Thompson and others EAT 14-Feb-1996
. .
Cited – Rees v G B Gels Ltd EAT 25-Jul-1997
. .
Cited – Executive Cleaning Services Plc v Ross EAT 11-Dec-1998
. .
Cited – Wainwright v G R Wright and Sons Ltd EAT 21-Jul-1999
. .
Cited – Allonby v Accrington and Rossendale College EAT 29-Mar-2000
EAT Sex Discrimination – Indirect – European Material – Article 19.
EAT European Material – Article 19
EAT Equal Pay Act – (no . .
Cited – HM Prison Service v Gundill EAT 4-May-2001
. .
Cited – R L Firth v Brc Barnsley Ltd EAT 20-Apr-2004
EAT Practice and Procedure – Review . .
Cited – HM Prison Service v Gundill EAT 22-Jan-2002
EAT Unfair Dismissal – Compensation. . .
Cited – Stanley Cole (Wainfleet) Ltd v Sheridan EAT 13-Nov-2001
. .
Cited – Murray v HM Land Registry EAT 25-Jun-2001
. .
Cited – R L Firth v BRC Barnsley Ltd EAT 2-May-2003
EAT Unfair Dismissal – Procedural fairness
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Cited – Royal Mail Group Plc v A Sharma EAT 29-Sep-2004
EAT Practice and Procedure – New evidence on appeal . .
Cited – Sterritt and others v Stewarts Supermarkets Ltd NIIT 10-May-2007
NIIT The decision of the tribunal is that the application made by the claimants to review the decision of the tribunal registered and issued to each of the parties on 10 March 2006, dismissing the first notice . .
Cited – Henry v London Borough of Southwark and Another EAT 26-Feb-2008
EAT Statutory Discipline and Grievance Procedures – Whether infringed
Practice and Procedure – Application/claim
The ET struck out the employee’s claims against Respondent (1), her employers, and . .
Cited – F and C Asset Management Plc and others v Switalski EAT 9-Dec-2008
EAT PRACTICE AND PROCEDURE: Review
UNFAIR DISMISSAL: Constructive dismissal
SEX DISCRIMINATION: Direct
Two appeals in respect of two matters heard together by the Employment Tribunal:
(i) . .
Cited – Lindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
Cited – Council of The City of Newcastle Upon Tyne v Marsden (Rev 1) EAT 23-Jan-2010
EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 December 2021; Ref: scu.185969

High Court of Australia – The Court was asked whether a contract was one of employment. For a number of years the owner had taken his truck at about the same time each day to the respondents’ factory where he had been given goods to deliver to their customers. He carried on delivering goods until about the same time each evening when he knocked off. He maintained the truck and supplied the fuel at his own expense, and was paid for goods carried at a rate per car-mile.
Held: There was a continuing contract between the respondents and the owner which was not a contract of service.
Dixon J said: ‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by any actual supervision or whether any actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions. . In the present case the contract by the deceased was to provide not merely his own labour but the use of heavy mechanical transport, driven by power, which he maintained and fuelled for the purpose. The most important part of the work to be performed by his own labour consisted in the operation of his own motor truck and the essential part of the service for which the respondents contracted was the transportation of their goods by the mechanical means he thus supplied. The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.’

Latham CJ, Rich and Dixon JJ
(1949) 79 CLR 389
Austlii
Australia
Cited by:
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 December 2021; Ref: scu.194303