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

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

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

EAT Employment Tribunal claim brought out of time because of Solicitor’s negligent advice. Application of British Coal Corporation -v- Keeble [1999] IRLR 337.

His Hon Judge Mcmullen QC
UKEAT/0851/03, [2004] UKEAT 0851 – 03 – 0704
Bailii, EATn
England and Wales
Citing:
Cited – British Coal Corporation v Keeble and others EAT 26-Mar-1997
The employer appealed against a decision by the tribunal that it had jurisdiction to hear the complaints of sex discrimination. The tribunal had extended the time for the claim on the just and equitable basis.
Held: The EAT set out five . .

Cited by:
Cited – McCarthy v H M Prison Service EAT 7-Feb-2005
EAT Time Limits
The Appellant applied out of time alleging unfair dismissal and sex discrimination. At the Employment Tribunal the Appellant’s Solicitor withdrew the unfair dismissal claim accepting he . .
Cited – Baynton v South West Trains Ltd EAT 8-Mar-2005
EAT The Claimant, post-termination, asked the employers to reconsider their dismissal of him for ill-health. His ET1 was presented two days after the three month period from dismissal expired.
The Tribunal . .
Cited – McDonagh v Event 22 Ltd FENI 9-May-2005
. .
Cited – Anderson v George S Hall Ltd EAT 3-Mar-2006
EAT Practice and Procedure – 2002 Act and pre-action requirements. Time Limits – just and equitable extension – Adequacy of reasons – Perversity. . .
Cited – Virdi v Commisioner of Police of the Metropolis, Central Police Training and Development Authority (Centrex) EAT 6-Oct-2006
EAT The appellant lodged claims under the Race Relations Act 1976 against the First Respondent. He contended they were in time. The ET held that they had been lodged a day out of time and refused to extend time . .
Cited – MacManus v Flagship Media Group Ltd and Another NIIT 12-Jan-2007
. .
Cited – Hunwicks v Royal Mail Group Plc EAT 20-Mar-2007
EAT Time Limits – Just and equitable extension
The Tribunal had not erred in refusing to extend time on ‘just and equitable’ grounds, notwithstanding that the Appellant had not been aware of the relevant . .
Cited – Campbell v Chief Constable and Another FENI 9-May-2007
. .
Cited – Ian Campbell v Chief Constable FENI 9-Jun-2007
. .
Cited – Muschett v London Borough of Hounslow EAT 6-Aug-2007
EAT Practice and procedure
Time for appealing
On hearing live evidence on appeals from decisions of the Registrar refusing extensions of time to lodge Notices of Appeal, three were dismissed and one was . .
Cited – Van Rensburg v The Royal Borough of Kingston-Upon-Thames and others EAT 16-Oct-2007
EAT Practice and Procedure: Striking-out/dismissal – Imposition of Deposit
The Employment Tribunal made a deposit order under rule 20 of the Tribunal Rules of Procedure against the Appellant on the grounds . .
Cited – Green v Intepress Ltd NIIT 1-Nov-2007
. .
Cited – Latimer v Montupet (UK) Ltd NIIT 23-Jun-2008
The claims 1068/05 and 1512/05 in relation to this claimant were ordered to be considered and heard together by an earlier Order of the Tribunal. The pre-hearing review was arranged to determine the issue whether the claimant’s claim allocated case . .
Cited – Orchid Pubs Ltd v Griffiths EAT 25-Sep-2008
EAT JURISDICTIONAL POINTS: Extension of time: just and equitable
In considering whether it is just and equitable to exercise its discretion under Section 68 of the Race Relations Act 1976 to extend the time . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 December 2021; Ref: scu.196036

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 follow the established tests, and look at the whole picture, including particularly that of control. It required ‘an irreducible minimum of obligation on each side to create a contract of service’ which test was not satisfied in this case. Three conditions are required for a contract of employment: (i) the servant agrees, in consideration for a wage or other remuneration to provide his own work and skill in the performance of some service for his master, ‘mutuality of obligation’; (ii) he agrees expressly or impliedly that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master; and (iii) the other provisions of the contract are consistent with its being a contract of service. ‘A contractual relationship concerning work to be carried out in which there is no control cannot sensibly be called a contract of employment. It is not essential that there is control of how the work should be done. In many cases, the employer or controlling management may have no more than a very general idea of how the work is done and no inclination directly to interfere with it. However, some sufficient framework of control must exist’.

Brooke, Longmore LJJ, Buckley J
Times 16-Mar-2001, Gazette 17-May-2001, [2001] EWCA Civ 318, [2001] ICR 819, [2001] IRLR 269, [2001] Emp LR 405
Bailii
England and Wales
Citing:
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Moore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
Cited – Clifford v Union of Democratic Mineworkers 1991
Where the only relevant material was documentary the question whether A is employed by B or C is a matter of law but otherwise is a mixed question of law and fact: ‘This description (a mixed question of law and fact) does not, however, in my . .
Cited – Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL 1970
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract . .
Cited – Humberstone v Northern Timber Mills 16-Nov-1949
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 . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Chadwick v Pioneer Private Telephone Co Ltd 1941
Stable J said: ‘A contract of service implies an obligation to serve, and it comprises some degree of control by the master.’ . .
Cited – Express and Echo Publications Limited v Tanton CA 11-Mar-1999
A contract for services, which required the contractor to provide an alternate worker in case of sickness, could not be a contract of employment. Such a clause could not be said to require the services to be provided personally.
Mr Tanton . .

Cited by:
Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Esso Petroleum Company v Jarvis and others Brentvine Limited EAT 14-Nov-2001
The claimants had come to the employer through an agency. The issue now was whether they were the employees of the respondent. The employer said there was no mutuality of obligation, and therefore no contract, and no possible dismissal.
Held: . .
Cited – Matthews and others v Kent and Medway Towns Fire Authority and others CA 2-Jul-2004
Part time retained firefighters claimed discrimination under the Regulations when their conditions of service were compared with those of full-time firefighters. They appealed a finding that they had been employed under different types of contract . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 December 2021; Ref: scu.147463

Civil service – Staff of the ECB – Evaluation report – Evaluation exercise 2015 – Execution of a judgment of the General Court – Article 266 TFEU – Duty of impartiality – Guide to the evaluation of members of the staff of the ECB – Obvious errors of assessment – Liability

T-555/20, [2021] EUECJ T-555/20, ECLI:EU:T:2021:552
Bailii
European

Employment

Updated: 18 December 2021; Ref: scu.668116

EAT Contract of Employment : Damages for Breach of Contract – Implied Term Variation/Construction of Term
The Claimant Market Patrol Officers disputed the grade and consequent pay they were awarded following the implementation of a Single Status pay and grading review by their employer Sheffield Council. They appealed, but were never officially informed of the outcome until after they raised a grievance complaining they had not been told. The result of the grievance was that they were told (in a letter from the HR Consultant tasked with responding to it) that the Appeal Panel had decided they would be placed on Grade 5 (whereas they had previously been placed on Grade 3). They worked on in the expectation this would be honoured, but their pay did not change. The employer contended that the letter was mistaken, and reconvened the appeal panel to determine what it had actually decided (which was a lesser increase, to Grade 4). An EJ concluded that the letter was of no contractual effect, since it was written in response to a grievance, and its author had no actual nor ostensible authority to make decisions as to pay and grading. He thought he did not need to determine whether there had been mutual mistake, such as to vitiate any apparent contract. It was held on appeal that he was wrong: in context, the letter responded to a complaint that the employees had not been told what the decision as to their grade was, by telling them. It was written by someone who was authorised to tell them what had been decided, even if she was not authorised to decide questions of pay herself. The issue of mistake was critical, however, and this would be remitted to a fresh Tribunal. The judge also erred in his reasoning as to a subsidiary issue – the meaning given by the Respondents to ‘salary’ in their pay and grading process, though it was unclear how this affected the result.

Langstaff P J
[2014] UKEAT 0033 – 14 – 1607
Bailii
England and Wales

Employment

Updated: 17 December 2021; Ref: scu.535107

EAT Unfair Dismissal : Reasonableness of Dismissal – The Claimant was dismissed (unfairly, as the Employment Judge found) following a drugs test which he failed. The Claimant and the Respondent continued, after his dismissal, to seek and obtain evidence as to the significance of the failed drug test. In reaching her Polkey assessment the Employment Tribunal proceeded on the basis, and implicitly found, that there was one relevant report on each side. This was plainly and incontrovertibly wrong. There was a second statement obtained by the Respondent which was potentially significant to the Polkey question. Matter remitted for the same Employment Judge to reconsider Polkey taking into account that statement.

Richardson HHJ
[2014] UKEAT 0526 – 13 – 1305
Bailii
England and Wales

Employment

Updated: 17 December 2021; Ref: scu.535104

ECJ (Advocate General’s Opinion) Preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement ETUC, UNICE and CEEP on fixed-term work – Contracts of successive fixed-term work – Area Public School – Clause 5, point 1 – measures to prevent the abuse of fixed-term contracts – Concept of ‘objective reasons’ justifying such contracts – Penalties – Failure to repair the damage – Prohibition requalification relationship of indefinite duration

Szpunar AG
C-22/13, [2014] EUECJ C-22/13 – O, ECLI: EU: C: 2014:2103, [2014] EUECJ C-22/13
Bailii, Bailii
Directive 1999/70/EC
European

Employment

Updated: 17 December 2021; Ref: scu.534450

The Claimant, who was a Team Leader working in recycling, tested positive for cannabis as part of a random drugs test. He was dismissed on 31 March 2020 following a disciplinary hearing on the basis that he was under the influence of drugs which affected his performance. An appeal was unsuccessful. The Employment Tribunal held that the Claimant was unfairly dismissed because, among other matters, the Respondent paid no or insufficient regard to mitigating factors, it was not the Claimant’s job to drive a van, there was no impairment of the Claimant’s performance at work and the dismissing manager had obtained evidence about the treatment of comparable cases from an HR employee who was not wholly objective. The Employment Judge also criticised the reliability of the test result.
The Employment Judge went to find that there should be no reduction to compensation (i) based on Polkey v AE Dayton Services Ltd [1988] ICR 142 or (ii) owing to contributory conduct under s.122(2) and s.123(6) of the Employment Rights Act 1996.
Held (allowing the appeal). In relation to the question of fairness, the Employment Tribunal had wrongly substituted its own findings in deciding that the cannabis did not affect the Claimant’s performance and it was not his job to drive a van, rather than focussing on the reasonableness of the employer’s belief about these matters. While the Tribunal was entitled to have regard to the failure of the Respondent to have regard to mitigating factors, it also substituted its own judgment in criticising the reliability of the drugs test in considering that the information about comparators was tainted by the lack of objectivity of the source.
On the question of the Polkey deduction, the Tribunal’s reason that the involvement of the HR employee ‘went to overall fairness but not to a consideration of a Polkey reduction’ could not be reconciled with principles on Polkey summarised in Software 2000 Limited v Andrews [2007] ICR 825. The Tribunal also erred in relation to contributory conduct, by reasoning that the Claimant would not have been dismissed if the Respondent had acted in accordance with its own policies. First, there is no causation test in s.122(2), on the basic award. Second, s.123(6) requires a tribunal to examine the actual conduct of the Claimant and ask itself if that conduct caused or contributed to the dismissal, and not to answer the different question of whether a claimant would have been dismissed if the Respondent acted reasonably, fairly or in accordance with its own policies.

[2021] UKEAT 2021-000584
Bailii
England and Wales

Employment

Updated: 17 December 2021; Ref: scu.669828

[1996] UKEAT 137 – 96 – 2011
Bailii
England and Wales

Employment

Updated: 17 December 2021; Ref: scu.208669

Civil service – Officials – Recruitment – Notice of open competition EPSO / AD / 371/19 – Decision of the selection board not to admit the applicant to the next stage of the competition – Criterion for the assessment of professional experience – Compliance with the competition notice of the criterion used by the jury

T-572/20, [2021] EUECJ T-572/20, ECLI:EU:T:2021:766
Bailii
European

Employment

Updated: 17 December 2021; Ref: scu.670046

EAT Unfair Dismissal : Constructive Dismissal – The Appellant claimed that he had been constructively dismissed by reason of his employers having conducted an inquiry into his dealings with a particular customer when he was ill. Those enquiries included indicating to the customer that the Claimant may have been acting wrongly. On discovering that that had been done, the Claimant resigned. He argued that the Employment Tribunal had applied the wrong test to constructive dismissal and had concentrated on events which had happened earlier, leading to his going off ill. They did not adjudicate upon the Claimant’s claim that the Respondent had breached the implied term of trust and confidence by their actings. Held that the ET had not made a decision on the claim put by the Claimant. That was an error of law and the question of unfair constructive dismissal should be remitted to a freshly constituted Tribunal.

Lady Stacey
[2014] UKEAT 0044 – 13 – 2901
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534226

EAT Practice and Procedure : Costs – Expenses. The claimant withdrew all claims the day before a Pre Hearing Review at which time bar and disablement were to be discussed. He did so because he was concerned that despite having a case which he had been advised was arguable, he might have lost the case and be ordered to pay expenses.
The respondent argued that the claimant’s conduct had been unreasonable, and sought an order of expenses. The EJ refused to make an award, holding that the claimant had not acted unreasonably.
The respondent appealed.
Held : appeal dismissed. The EJ was entitled to reach the decision to refuse to make an award. He did not err in law in doing so.

Stacey J
[2014] UKEAT 0006 – 14 – 2705
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534234

EAT Maternity Rights and Parental Leave – SEX DISCRIMINATION – Indirect
UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
JURISDICTIONAL POINTS – Extension of time: just and equitable
ET rejected claims of maternity discrimination, indirect sex discrimination and constructive dismissal. The Claimant had complained that before she went on maternity leave she had agreed a 1 year flexible working arrangement, for 4 days per week, after which she would revert to her previous FT contract. Another employee, AH was required to work on the fifth weekday, on a fixed term contract of 1 year duration. The Claimant took a second period of maternity leave during which AH was dismissed at the end of her fixed term. The Claimant claimed that to dismiss AH without first telling the Claimant, and to fail to discuss with the Claimant at the end of her agreed period of 4-day working what her plans were for the hours she would work on return after leave, amounted to unfavourable treatment because of her exercising her right to maternity leave. This was rejected both on the merits and for time reasons, since an application was not made until some 8 months after the failures (and, in the case of AH, over 3 months after the Claimant knew of AH’s dismissal).
The ET had stated the PCP contended for in one paragraph of its decision, but a different one when it analysed the facts and concluded no such PCP had been applied. In dealing with constructive dismissal it said the ‘last straw’ had been unidentified, when in fact it was clearly identified.
Held: dismissing the appeal, that the ET was entitled to decide as it did on the claim of maternity discrimination; that the inconsistency of the PCP was not material since the two PCPs considered were in context the same, though expressed differently as a matter of linguistics; and that although the ET had erred factually in its approach to constructive dismissal its conclusion on the facts was nonetheless plainly and obviously right.
Observations made about the procedure to be adopted where the parties find it difficult to agree bundles for use at the EAT.

Langstaff J P
[2014] UKEAT 0391 – 13 – 0204
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534232

EAT Practice and Procedure : Amendment – The Claimant applied to add (1) a section 103A claim to an existing unfair dismissal claim and (2) a claim of detrimental treatment by reason of public interest disclosure. The Employment Judge refused both. In his initial reasons he did not give separate consideration to the section 103A claim. When asked to reconsider he confirmed his earlier decision.
Held: (1) The Employment Judge ought to have given separate consideration to the section 103A claim, which was closely linked to the existing unfair dismissal claim – appeal allowed in this respect and permission to amend granted; (2) the Employment Judge did not err in law in refusing permission to amend to add a claim of detrimental treatment by reason of public interest disclosure – appeal in this respect dismissed.

David Richardson HHJ
[2014] UKEAT 0503 – 13 – 2904
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534230

EAT Practice and Procedure : Costs – Employment Tribunal’s refusal to recuse itself from hearing costs application having reached view as to the Claimant’s credibility at earlier liability hearing. Whether award of andpound;10,000 costs excessive.
Dismissing the Appeal:
The Employment Tribunal had been entitled to express its views as to the Claimant’s credibility in its earlier judgment on liability and, in so doing, to have regard to the wider background evidence relating to the Claimant’s approach to litigation against his employer. The Tribunal had not over-stepped the mark in terms of how it had expressed those views and there was no proper basis on which it obliged to recuse itself from hearing the subsequent costs application (principles laid down and approved in Ansar v Lloyds TSB Bank plc [2007] IRLR 211 applied).
Furthermore, the language used by the Tribunal in its judgment on liability did not amount to an expression of a concluded view as to any later application for costs. This case was not on all fours with Oni v NHS Leicester City (formerly Leicester City Primary Care Trust) [2013] ICR 91 EAT.
The Tribunal was not guilty of taking into account irrelevant factors and had not put the administration of justice before the principle of fair hearing. It had done no more than recognise the point (recognised in Ansar) that it was obliged to judge the case before it and was not to be de-railed from that task by unmeritorious allegations of bias. Equally, it had not fallen into the trap of visiting the sins of the representative onto the party: the Tribunal had clearly had regard to the conduct of the Claimant and expressly not to the conduct of his former representative. As for the amount of costs awarded, that sum was a small fraction of the costs actually incurred by the Respondent. Although not obliged to do so, the Tribunal had regard to the Claimant’s ability to pay and the amount of costs awarded was firmly within its discretion of the Employment Tribunal.

Eady QC HHJ
[2014] UKEAT 0172 – 12 – 1504
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534228

EAT Practice and Procedure : Amendment – Practice and Procedure: Claimant seeking to challenge refusal to vary unless order or to give relief from sanctions. Effect of those refusals was that case struck out when period for compliance expired and she had not complied. No error of law in Tribunal’s order; appeal failed. Further, the Claimant seeking to challenge refusal to allow amendments raising new unlawful direct race discrimination claims. No error of law in Tribunal’s approach; appeal dismissed.

Simler J
[2014] UKEAT 0086 – 13 – 0205
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534235

EAT Practice and Procedure : Striking-Out or Dismissal – ‘Unless order’. The ‘unless order’ required the Claimant, a litigant in person, to ‘provide disclosure of all relevant documents’ by a given date. The Claimant did not make a list of documents, but sent some documents to the Tribunal and was informed at the last moment by the Tribunal that they should be sent to the Respondent.
Held: the ‘unless order’ lacked the necessary quality of clarity and certainty to take effect as an order striking out the claim. It was unclear whether the order was intended to require the Claimant to provide a list of documents (the order applied for by the Respondent) or to provide copies of those documents, and if the latter to whom they were to be provided.

David Richardson HHJ
[2014] UKEAT 0491 – 13 – 2204
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534229

EAT Practice and Procedure : Parties – The Claimant/Appellant was a teacher at a primary school. Her contract of employment was with Respondent one’s local authority. She brought proceedings in Employment Tribunal for unfair constructive dismissal, notice pay and sex discrimination. Respondent one and the Employment Tribunal pointed out that by virtue of the Education (Modification of Enactments Relating to Employment) (England) Order 2003 the correct Respondent was the ‘interim executive board’ of the school. On the Claimant’s application an Employment Judge joined the board as Respondent two without hearing submissions from Respondent one or Respondent two.
At a subsequent PHR another Employment Judge dismissed the claims against Respondent two on the grounds they were out of time. That was an error of law: the Employment Judge should have considered whether Respondent two should have been joined as a matter of discretion; time limits were a factor in the exercise of the discretion but not decisive as a matter of jurisdiction.
The Employment Judge also dismissed the claim against the Respondent one on the basis that under the 2003 order the only proper Respondent was Respondent two; the order was complicated and the facts needed to be established, so it could not be said at this stage that Respondent one was definitely not liable by virtue of the order. Accordingly the appeal in relation to Respondent one was also allowed: Respondent one should remain a party and all matters as between it and the Claimant should be resolved following a full hearing.

Shanks HHJ
[2014] UKEAT 0530 – 13 – 0606
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534239

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – DISABILITY DISCRIMINATION – Reasonable adjustments – The Claimant and two witnesses alleged that a lay member of the Employment Tribunal had frequently slept or given the appearance of sleeping during a 5 day hearing. The Respondent’s three witnesses denied that this was the case, as did the ET. The Employment Appeal Tribunal, after hearing oral evidence, and applying Stansbury v Datapulse [2004] ICR 523 and Shodeke v Hill UKEAT/0394/00 RN, rejected the allegation. – A separate ground of appeal concerning the ET’s reasoning in respect of a reasonable adjustments claim was also dismissed.

David Richardson HHJ
[2014] UKEAT 0433 – 12 – 2804
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534231

EAT Unfair dismissal. The Claimant was a doctor who was convicted of driving while under the influence of alcohol. His registration with the General Medical Council was suspended on an interim basis. He was signed off as unfit for work while undergoing a course of treatment involving attendance at a centre most of the day and part of the evening. The Respondent dismissed him on grounds of capability. The Respondent decided that if registration was necessary and was not available, unless deployment could be arranged, dismissal would ensue. The Claimant led evidence at a hearing and an appeal to the effect that he was likely to respond to treatment and that his suspension was likely to be revoked. He led evidence that most doctors in his position did recover, and that other health boards would not dismiss at an early stage of his receiving treatment. The Respondent dismissed him about 6 weeks after his suspension. The Employment Tribunal found that dismissal was unfair. The Respondent argued that the ET had substituted its own view and had wrongly admitted evidence of the supposed attitude of other health boards and opinion evidence from doctors who stated that the Claimant was likely to recover, and that other health boards would not dismiss at that stage.
Held: appeal dismissed. The ET had directed itself correctly in law and was entitled to hold that the Respondent had not carried out a reasonable investigation and had not acted fairly in all of the circumstances. The opinion evidence of the doctors was admissible.

Stacey L
[2014] UKEAT 0048 – 13 – 1803
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534227

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – Reasonableness of dismissal
DISABILITY DISCRIMINATION – Direct disability discrimination
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
ET majority finding as to reason for dismissal inadequately reasoned. Unanimous finding of unfairness based on Appellant’s reason, conduct, inconsistent with their own finding of fact at para 6 of their reasons.
Appeal allowed and case remitted to fresh ET for rehearing on (a) reason for dismissal (conduct or disability, or both) and (b) fairness of dismissal.

Peter Clark J
[2014] UKEAT 0432 – 13 – 0905
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534236

EAT ‘The appeal had raised three main questions: first, whether the Employment Tribunal had correctly identified and defined the protected disclosure in this case. Second, if so, whether the Tribunal nevertheless erred in its approach to the question of causation. Third, and in any event, whether there was a breach of natural justice in the conduct of the Tribunal proceedings.’

Eady QC HHJ
[2014] UKEAT 0135 – 13 – 1205
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534238

EAT Victimisation Discrimination : Protected Disclosure – PRACTICE AND PROCEDURE – Employment Tribunal case management: identification of the issues
The Tribunal’s record of the issues to be determined fairly and adequately set out the issues raised by the parties’ case before it. The Claimant had not identified the failure to deal with her grievance as a detriment and there was nothing in the material before the Employment Tribunal to suggest that this should be added to the list of issues as part of her case.
The Tribunal had adequately dealt with the question of detriments and set out its reasoning. Any brevity in its record of its findings reflected the lack of particularisation or emphasis in the Claimant’s own case and fairly recorded the way the claims had been pursued before it.
Applying NHS Manchester v Fecitt and ors [2012] IRLR 64, to the extent that the complaints of detriments related to the conduct of the Claimant’s co-workers they were, in any event, bound to fail.

Eady QC J
[2014] UKEAT 0393 – 13 – 1405
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.534233

Eveleigh LJ discussed the reasons to be given by a tribunal. After quoting Donaldson LJ, he continued: ‘He is not, as I read that judgment, saying that in every case all these points to which I refer must be adhered to, otherwise there will be an error of law in the decision of the tribunal.’

Eveleigh LJ
[1983] ICR 683
England and Wales
Citing:
Cited – Alexander Machinery (Dudley) Ltd v Crabtree CA 1974
Donaldson LJ discussed the level of detail to be given by a tribunal when giving its reasons: ‘It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials . .

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

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 December 2021; Ref: scu.510135

The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s previously made adverse comments about the applicant in a case in which he had appeared as a union representative.
Held: The reasons given by the tribunal were deficient. Without evidence as to what had occurred at the tribunal, it was not possible for the Court of Appeal to resolve the factual issues as to whether there had been bias. The test was whether a fair-minded and informed observer would see a real possibility of bias. The case was remitted to the EAT with a direction that the appeal to it had been on a question of law, and that it therefore had had jurisdiction. The award of costs was misconceived.

Lord Justice Pill Lord Justice Latham
[2004] EWCA Civ 306, Times 09-Apr-2004, [2004] ICR 884, [2004] IRLR 554
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001
England and Wales
Citing:
Appeal from – Lodwick v London Borough of Southwark EAT 7-Mar-2003
The applicant was employed by the respondent and sought leave to work for the CAB for a year, requesting a sabbatical. Leave was refused. He applied to the employment tribunal, but objected that the chairman had, in a previous case, indicated his . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – Clenae Pty Ltd and Others v Australia and New Zealand Banking Group Ltd 9-Apr-1999
(Supreme Court of Victoria) The court considered the issue of bias in a judge where he held shares in a company in the trial before him.
Held: The outcome of the litigation could not have realistically affected his judgment. He held a small . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – Davidson v John Calder (Publishers) Ltd and Another 1985
. .
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 – E T Marler Limited v Robertson NIRC 1974
A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success: ‘If the employee knows that there is no substance in his claim and that it is bound to . .

Cited by:
Appealed to – Lodwick v London Borough of Southwark EAT 7-Mar-2003
The applicant was employed by the respondent and sought leave to work for the CAB for a year, requesting a sabbatical. Leave was refused. He applied to the employment tribunal, but objected that the chairman had, in a previous case, indicated his . .
Cited – Ansar v Lloyds TSB Bank Plc and others CA 9-Oct-2006
The claimant challenged a decision of the chairman of the Employment tribunal not to recuse himself on a later hearing after the claimant had previously made allegations of bias and improper conduct against him. . .
Cited – Yerrakalva v Barnsley Metropolitan Borough Council and Another EAT 8-Dec-2010
EAT PRACTICE AND PROCEDURE – Costs
Discrimination claim withdrawn – Judge awards Rs 100% of their costs, not on the basis that the claim had been misconceived or unreasonably pursued from the start but . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 December 2021; Ref: scu.194822

[1995] UKEAT 1066 – 94 – 1206
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.209202

Claim to enforce obligations of non-competition, confidentiality, and post-termination restrictions against former employees

Margaret Obi (Sitting As A Deputy High Court Judge)
[2021] EWHC 2562 (QB)
Bailii
England and Wales

Employment

Updated: 16 December 2021; Ref: scu.669696

[1999] UKEAT 1451 – 98 – 2303
Bailii
England and Wales
Citing:
See Also – Shah v London Borough of Brent EAT 8-Dec-1999
Pay protection . .

Cited by:
See Also – Shah v London Borough of Brent EAT 8-Dec-1999
Pay protection . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 December 2021; Ref: scu.205022

[1999] UKEAT 1489 – 98 – 2403
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205013

[1999] UKEAT 754 – 98 – 0103
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205021

[1999] UKEAT 373 – 98 – 0104
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205069

[1999] UKEAT 1339 – 98 – 3004
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205084

[1999] UKEAT 1425 – 98 – 1404
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205091

[1999] UKEAT 322 – 98 – 1304
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205105

[1999] UKEAT 103 – 99 – 2304
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.205082

The Claimant was charged by the Police with possession of indecent images of children under s 52A of the Civic Government (Scotland) Act 1982. The Procurator Fiscal reviewed the evidence and decided not to prosecute. The Claimant was a schoolteacher. His employers convened a disciplinary meeting and dismissed him. The Crown had provided the employer with a summary of the evidence but would not permit it to be released to anyone else. It was withheld from the decision maker. The Claimant began proceedings for unfair dismissal. His claim was rejected by the Employment Judge. He argued on appeal that the complaint issued by the school did not mention the risk of reputational damage and as a result it was not open to dismiss him on that ground. He also argued that since the complaint was based on misconduct and not the risk of reputational damage. In that situation it was necessary to decide whether or not he was guilty of downloading the images and on the state of the evidence they were not in a position to decide he had. He further argued that it was not open to the employer to dismiss him based on the possibility he had downloaded the images.

Held (1) that the complaint in the dismissal letter was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal; and in such a circumstance the employer was bound to make a decision on whether the misconduct had been established and had it done so it was bound to conclude that misconduct had not been established; (2) that an employer was not entitled to dismiss an employee on the basis that misconduct was a possibility that could not be excluded or where there was no guarantee of his good conduct (s 98(2) and (4) Employment Relations Act 1994); and (3) that the reasonable approach to the standard of proof was to apply the balance of probabilities; where the employer was not in a position to make a judgement about conduct collateral to reputational damage as the ground of dismissal, the employer required to be satisfied that there was substantial evidence that was open to scrutiny and challenge in support of the underlying conduct and this test was not satisfied in the present case; and appeal allowed.

[2020] UKEAT 0014 – 18 – 2404
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.653914

[1996] UKEAT 193 – 96 – 2011
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.208681

Civil service – Officials – Disciplinary procedure – Disciplinary sanction – Demotion – Rights of the defense – Principle of sound administration – Manifest error of assessment

T-43/20, [2021] EUECJ T-43/20
Bailii
European

Employment

Updated: 13 December 2021; Ref: scu.668535

Civil service – Officials – Temporary agents – Contract agents – Remuneration – EEAS staff assigned to a third country – Article 10 of Annex X to the Staff Regulations – Annual assessment of the living conditions allowance – Guidelines on the method for fixing the living conditions allowance – Decision fixing the rate of the living conditions allowance paid to staff assigned to Ghana at 20% – Failure to establish the questionnaire required by the guidelines – Procedural irregularity – Manifest error of appreciation

T-655/18, [2021] EUECJ T-655/18, ECLI:EU:T:2021:693
Bailii
European

Employment

Updated: 12 December 2021; Ref: scu.668534

Civil service – Officials – Remuneration – Installation allowance – Temporary change of place of employment – Change of residence

T-482/18, [2019] EUECJ T-482/18, ECLI:EU:T:2019:487
Bailii
European

Employment

Updated: 12 December 2021; Ref: scu.665163

[1999] UKEAT 1033 – 98 – 1404
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.205083

[1999] UKEAT 86 – 99 – 2304
Bailii
England and Wales
Cited by:
See Also – Dr J Lynn v Rokeby School Governors, London Borough of Newham EAT 23-May-2000
EAT Procedural Issues – Employment Appeal Tribunal
EAT Procedural Issues – Employment Appeal Tribunal. . .
See Also – Dr J Lynn v Rokeby School Board of Governors London Borough of Newham Secretary of State for Education and Employment EAT 21-Mar-2001
EAT Sex Discrimination – Direct . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 December 2021; Ref: scu.205098

[1999] UKEAT 47 – 99 – 3004
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.205097

[1999] UKEAT 1464 – 98 – 3004
Bailii
England and Wales
Citing:
See Also – M J Mcguire v Initial Deborah Services Ltd EAT 20-Nov-2000
EAT Unfair Dismissal – Reason for Dismissal . .
See Also – Mcguire v Initial Deborah Services Ltd EAT 4-Oct-1999
. .

Cited by:
See Also – Mcguire v Initial Deborah Services Ltd EAT 4-Oct-1999
. .
See Also – M J Mcguire v Initial Deborah Services Ltd EAT 20-Nov-2000
EAT Unfair Dismissal – Reason for Dismissal . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 December 2021; Ref: scu.205100

EAT Unlawful Deduction from Wages – (no sub-topic).

The Honourable Lord Johnston
[2002] UKEAT 0028 – 02 – 1212, EATS/0028/02
Bailii, EAT
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.203303

[1999] UKEAT 1387 – 98 – 2203
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.205029

[1999] UKEAT 37 – 99 – 1404
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.205096

[1999] UKEAT 151 – 99 – 2804
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.205095

Employment agencies – child tutors.

[2020] EWHC 2461 (Admin)
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.654035

The plaintiff, a former senior employee of the company had requested the court to say whether a post employment clause restraining him working from a competitor was valid. The employer now appealed.
Held: The appeal failed. The clause was too wide, restraining the former employee working for a competitor anywhere in the UK.
Lord Denning MR said: on that short ground (but it is a decisive ground) of geographical area it seems to me that this covenant is too wide and is on that account invalid, and I would support the judge’s judgment on the simple ground on which he made a declaration that the covenant is invalid.’

Lord Denning MR, Shaw, Waller LJJ
[1979] IRLR 445, [1978] EWCA Civ 8
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.262691

The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
Held: The amalgamation had taken place under the 1992 Act. It was an issue as to whether there had been a TUPE transfer. The directive referred to a change in employer, the Regulations referred to a transfer. The fixed term had not been varied by the compromise agreement so as to allow him to continue to serve without re-election. The declaration was granted.

The Vice-Chancellor
[2002] EWHC 1642 (Ch)
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 92, Council Directive 79/7/EEC, Council Directive 2001/23/EC
England and Wales
Citing:
Cited – Heaton’s Transport (St Helen’s) Ltd v Transport and General Workers’ Union HL 1972
Injunctions had been granted against the Trades Unions to prevent them undertaking stike action. Proceedings for contempt were brought against the union after blacking had continued, despite the fact that the union through its national and local . .
Cited – Jacques v AUEW 1987
Warner J said: ‘The effect of the authorities may I think be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the . .
Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .

Cited by:
Cited – Unison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 December 2021; Ref: scu.174453

[1993] UKEAT 96 – 92 – 1101
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.210428

[1978] IRLR 551
England and Wales
Cited by:
Cited – R P Charles v P J R Ellis and W J E Ellis T/A Property Services EAT 10-Jul-1999
The appellant appealed against the dismissal of his claim for unfair/constructive dismissal. He had left work claiming to be sick. His employer disputed that he was sick. He was not paid, on time, and eventually claimed that this was a constructive . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 December 2021; Ref: scu.179854

Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence establishments in Germany; under the NATO Status of Forces Agreement of 1951 he was part of the civil component of British Forces in Germany and treated as resident in the UK for various purposes. Mr Crofts was a pilot employed by a company which was a wholly owned subsidiary of, and provided aircrew for, Cathay Pacific Airways Ltd, the Hong Kong airline; but he was based at Heathrow under the airline’s ‘permanent basings policy’. Companies based in England took on these employees under contracts making the employments subject to UK law. Employment claims were made and the companies asserted that the UK employment laws did not apply.
Held: The sections had previously included a provision limiting jurisdiction, but that had been removed. The situations differed each on their facts, but a claim was available in principle: ‘it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was ‘rooted and forged’ in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary.
Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home.

Lord Hoffmann, Lord Woolf, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2006] UKHL 3, [2006] 1 ICR 250, Times 27-Jan-2006, [2006] 1 All ER 823, [2006] IRLR 289
Bailii
Employment Rights Act 1996 94(1) 230(1), Employment Tribunals (Constitution and Rules of Procedure) Rules 2001 SI 2001/1171
England and Wales
Citing:
At EAT – J Botham v Ministry of Defence EAT 1-Nov-2004
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke. . .
Leave to appeal – Botham v Ministry of Defence CA 14-Mar-2005
Leave given for appeal to the House of Lords . .
Appeal from – Crofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
Appeal from – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Ex parte Blain; In re Sawers CA 1-Aug-1879
Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere.
James LJ referred to ‘broad, general, universal principle that English legislation, unless the . .
Cited – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
Cited – Wilson v Maynard Shipbuilding Consultants AB CA 1978
The applicant, a management consultant was said by his employer to ‘ordinarily work outside Great Britain’ and thus to be outside the protection of UK employment legislation.
Held: The legislation had in ‘deceptively simple-looking words’ . .
Cited – Shelley’s case; Wolfe v Shelley 1581
If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were . .
Cited – Van Grutten v Foxwell 1897
It would be dangerous to allow a jury, eight years after the event, to decide that a woman executing a deed had been incompetent to do so when at the time she had been certified competent. It is one thing to put the rule in a nutshell and another to . .
Cited – Todd v British Midland Airways CA 2-Jan-1978
The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – Re Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
Cited – Carver (Nee Mascarenhas) v Saudi Arabian Airlines CA 17-Mar-1999
The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in . .
At EAT – Lawson v Serco Ltd EAT 12-Dec-2002
EAT Jurisdiction . .
Cited – Financial Times Ltd v Bishop EAT 25-Nov-2003
The Tribunal considered the applicability of the 1996 Act to those employed abroad after the repeal of s196: ‘In our view the repeal of section 196 (2) cannot be taken to have had the effect that employees who had or whose employment had a . .
Cited – Jackson v Ghost Ltd and Another EAT 2-Sep-2003
The EAT rejected jurisdiction over a claim for unfair dismissal. The employment must have ‘a sufficient, that is substantial connection with this country’. . .
Cited – Bryant v The Foreign and Commnonwealth Office EAT 10-Mar-2003
Section 94(1) of the 1996 Act did not apply to protect a British national locally engaged to work in the British Embassy in Rome. . .

Cited by:
Cited – Smith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families CA 14-Dec-2009
The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Bleuse v MBT Transport Ltd and Another EAT 21-Dec-2007
EAT Working Time Regulations
Unfair Dismissal – Exclusions including worker/jurisdiction
The claimant, a lorry driver, worked mainly in Austria and Germany, but had a contract of employment with a . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SCS 22-Jun-2010
The pursuer, living in England was dismissed from a post by the defenders whilst he was working for them in Libya. He claimed unfair dismissal. They said that his employment was not subject to British Law.
Held: The employment was governed by . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
Cited – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 December 2021; Ref: scu.238141

[1996] UKEAT 1318 – 95 – 2011
Bailii
England and Wales

Employment

Updated: 10 December 2021; Ref: scu.208690

[2003] EAT 0034 – 03 – 2008, [2003] UKEAT 0034 – 03 – 2008
Bailii, Bailii
England and Wales
Citing:
See Also – Mitie Lindsay Ltd v Lynch EAT 6-Jun-2003
EAT Practice and Procedure – Bias, misconduct and procedural irregularity. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 December 2021; Ref: scu.191770

(Judgment) Officials – Annulment of a compulsory resignation.
Where a bill of exchange has been negotiated by means of a forgery of the name of the payee as indorser, a Court of equity will restrain even a bona fide holder of the bill from suing the acceptor, and will direct the forged instrument to be delivered up to be cancelled.

C-12/87, [1988] EUECJ C-12/87
Bailii
European

Employment

Updated: 06 December 2021; Ref: scu.134549

Unfair Dismissal – Reasonableness of Dismissal – Contributory fault – The decision that the Claimant was unfairly dismissed and had not contributed through his fault to his dismissal was a judgment that the Tribunal was entitled to make on the facts before it. Although it had perhaps veered towards the substitution mindset in its analysis of the misconduct of the Claimant that led to his dismissal there were several features that entitled the Tribunal to conclude that the dismissal was unfair and outside the band of reasonable responses. Those included the failure of the Respondent to consider the Claimant’s 27 years’ service, his personal mitigation and health problems and steps he was taking to address the issues that led to the outburst that amounted to bullying behaviour and the insight he had shown into the incident. The Tribunal had also found the appeal process to have been a charade and on the evidence, there could be no appeal from that finding Newbound v Thames Water Utilities Ltd [2015] IRLR 734 CA followed.
The decision not to make a reduction for contributory fault was the Tribunal’s to make in accordance with section123 ERA and London Ambulance Service NHS Trust v Small [2009] IRLR 563, CA. Whilst other Tribunals might have taken a different view, the Tribunal has a wide discretion and the Tribunal’s Judgment did not clear the high hurdle of perversity.

[2018] UKEAT 0192 – 17 – 1009
Bailii
England and Wales

Employment

Updated: 06 December 2021; Ref: scu.632224

ECJ (Judgment Of The Court) Freedom to provide services – Temporary employment agency – Secondment of workers by an agency established in another Member State – Restriction – Undertaking using the workforce – Tax on the income of those workers withheld at source – Obligation – Payment to national budget – Obligation – Situation of workers seconded by a national agency – Absence of such obligations

A. Tizzano (Rapporteur), P
C-53/13, [2014] EUECJ C-53/13, ECLI:EU:C:2014:2011
Bailii
European

Employment

Updated: 05 December 2021; Ref: scu.527255

EAT Unfair Dismissal : Reasonableness of Dismissal – The Claimant appealed against the Employment Tribunal’s dismissal of his complaint of unfair dismissal. The issue was the ET’s approach to the overall reasonableness of the dismissal in a redundancy situation, and specifically to the employer’s efforts to find suitable alternative employment.
The ET were found to have erred in focussing on the narrow issue of whether a particular post, identified by the Claimant as offering suitable alternative employment for him, was vacant because it was under review; and in failing to resolve questions relating to that post, which were clearly relevant to the overall question of the reasonableness of the Claimant’s dismissal as at the time it occurred.
Case remitted for re-hearing before a freshly constituted Tribunal.

Cox J DBE
[2014] UKEAT 0094 – 13 – 2101
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.527194

EAT Redundancy : Fairness – Genuine redundancy situation at a solicitor’s firm. Pool of four solicitors in the relevant department. One post must go. Managing partner devises and applies a scoring matrix based on eight criteria. Lowest scorer is longest serving, most experienced solicitor. Tribunal find age discrimination in earlier acts of the managing partner directed towards Claimant and then an unfair dismissal based on an unfair procedure designed to produce the result that the Claimant was selected.
On employer’s appeal, grounds relating to age discrimination withdrawn.
Appeal against unfair dismissal judgment dismissed.
The question for the Tribunal had been whether the dismissal of the Claimant for redundancy had been fair. It decided that it had not been. It delivered a fully reasoned judgment which contained no misdirection or other error of law.

Luba QC Rec
[2013] UKEAT 0551 – 12 – 2511
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.527203

EAT Equal Pay Act : Part-Time Pensions – PRACTICE AND PROCEDURE – Amendment – The Claimant applied to the Employment Appeal Tribunal for leave to amend his Notice of Appeal. The Claimant seeks retrospective admission to the Teachers Pension Scheme for periods of part-time employment. At a preliminary hearing, HH Judge David Richardson gave the Claimant leave to lodge a draft amended Notice of Appeal to substitute grounds challenging the decision of an Employment Judge that there was no stable employment relationship between the Claimant and the Respondent between dates during the period for which retrospective admission to the scheme was claimed. The decision of the Employment Judge means that retrospective admission cannot be claimed under the current ET1 for the whole period. Although Additional Amended Grounds of appeal on another point were lodged, no draft amended grounds on the stable employment issue were provided in compliance with the Order of HH Judge Richardson. There was a lengthy delay in serving a draft amended Notice of Appeal and application to amend for which there was no acceptable explanation. Further, the draft amended grounds had little merit. Applying the principles in Khudados v Leggate and others [2005] ICR 1013 and the overriding objective of the Employment Appeal Tribunal Rules as amended in 2013, the application was dismissed.

Slade J DBE
[2014] UKEAT 0108 – 12 – 2006
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.527200