EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
Contributory fault
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
A deputy head teacher was friendly with a fellow teacher, who was arrested and suspended for having indecent images of children (not at the Appellant School). She maintained a friendship, discreetly. Some nine months after it was indicated to her by the School and LEA that there was nothing wrong in her continuing with this, and without more than three days prior warning, she was suspended from post and disciplinary proceedings initiated. On appeal, it was held that her actions had not brought the School into disrepute, nor did they pose a safeguarding risk to children at the School, but nonetheless the head teacher had lost confidence in her such that her continued employment at the School was untenable, and her dismissal was confirmed. The school maintained this was SOSR. The Employment Tribunal accepted this, but found the dismissal unfair in the circumstances, especially since the employer had not only failed to warn her of the risk to her employment but had appeared to condone her conduct in maintaining a friendship.
It was contended (by reference to Perkin, McAdie and Ezsias) that in a case of dismissal for SOSR for loss of confidence an ET was not entitled to have regard to the causes of that loss, but should be restricted merely to the fact of it. This was rejected: s.98(4) entitled the ET to take a broader view, this was consistent with observations in the three cases principally relied on, and the context was analogous to a dismissal for conduct in which case a warning or its absence would be highly relevant to any consideration of fairness.
Further grounds of appeal on the basis of inconsistency in the Judgment, and substitution of view, were rejected on a fair understanding of the Judgment. Procedural irregularity was rejected as a ground given that there was no prejudice which could not be remedied. However, the ET failed to address arguments which had been made to it in respect of one of two distinct aspects of alleged contributory fault, and that issue would have to be remitted.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0527 – 11 – 2504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459931

EAT TRANSFER OF UNDERTAKINGS – Transfer
TUPE. Service provision change. Tribunal erred in law in finding that the Claimant’s employment had transferred under TUPE. On the findings in fact, the Claimant (the Second Respondent) himself could not be an ‘organised grouping of employees’ nor was it shown that the Claimant had as his principal purpose the activities which were taken ‘in house’ by the Appellant’s client (the First Respondents).
Cross appeal under reference to regulation 15 of TUPE was ill founded. The fact that a transferee was already a party to Tribunal proceedings did not relieve transferors of the obligation to give notice under reg 15(5).

Judges:

Lady Smith

Citations:

[2012] UKEAT 0034 – 11 – 1904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459930

EAT PRACTICE AND PROCEDURE
Amendment
On an application to strike out a Claimant’s claims an issue arose as to whether the claim form contained a claim of automatically unfair dismissal. The Employment Tribunal Judge decided that it did not and refused an application to amend.
Appeal against those decisions dismissed. On a proper construction of the claim form it made no claim of automatically unfair dismissal. There was no error in the exercise of discretion on the application to amend.

Judges:

Luba QC

Citations:

[2012] UKEAT 0097 – 11 – 1603

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459917

EAT UNFAIR DISMISSAL
The Appellant authority suspended the Claimant after receiving information from the police that he had been involved in dishonesty which had serious financial and reputational consequences for them. There was no contractual right to suspend without pay. The Claimant was not in custody but was available for work. The Employment Tribunal upheld his claim for arrears of salary which the Appellant did not pay during the period between his suspension and his subsequent dismissal. There had not yet been any trial; the Appellant did not seek to prove that the Claimant had committed the misconduct for which he had been suspended and then dismissed.
On appeal, held that:
(1) It was not reasonably arguable that the Claimant’s salary was not properly payable within s13(3) of the Employment Rights Act 1996, in the absence of any contractual right to suspend without pay or
(2) That the Claimant by conduct, which was alleged but not proved, had put himself in a position in which he was unable to work or
(3) That the Claimant had given no consideration for his salary; he was ready and able to work as required Burns v Santander [2011] IRLR 639 distinguished.

Judges:

Burke QC

Citations:

[2012] UKEAT 0547 – 11 – 0903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459916

EAT PRACTICE AND PROCEDURE
Striking-out/dismissal
Imposition of deposit
Applications to strike out on the basis that there is no reasonable prospect of success should only be made in the most obvious and plain cases in which there is no factual dispute and which the applicant can clearly cross the high threshold of showing that there are no reasonable prospects of success. Applications that involve prolonged or extensive study of documents and the assessment of disputed evidence that may depend on the credibility of the witnesses should not be brought under rule 18(7)(b) but must be determined at a full hearing. Applications under rule 18(7)(b) that involve issues of discrimination must be approached with particular caution. In cases where there are real factual disputes the parties should prepare for a full hearing rather than dissipate their energy and resources, and those, of Employment Tribunals, on deceptively attractive shortcuts. Such applications should rarely, if ever, involve oral evidence and should be measured in hours rather than days. The Respondent failed to establish that the instant claims had neither a reasonable prospect of success nor little reasonable prospect of success.

Judges:

Serota QC J

Citations:

[2012] UKEAT 0495 – 11 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459929

EAT UNFAIR DISMISSAL – Contributory fault
The Claimant was dismissed after having been sent to prison for breaking a restraining order while on a suspended sentence. He was dismissed, not for misconduct but because the Respondent believed that the contract of employment was frustrated. The Employment Tribunal held that no fair reason for dismissal had been demonstrated but that the Claimant was guilty of contributory conduct, assessed at two-thirds. They rejected reinstatement/re-engagement.
On appeal by the Claimant (there being no appeal against the finding of unfair dismissal:
(1) The ET were entitled, on the facts as found, to find contributory conduct which was causative of the dismissal. The EAT would not interfere with their decision as to the amount of reduction.
But
(2) The ET had given no reasons at all for their decision as to reinstatement/re-engagement; that issue must be remitted to the ET to re-consider and to give reasons.

Judges:

Burke QC

Citations:

[2012] UKEAT 0535 – 11 – 2703

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459918

EAT PRACTICE AND PROCEDURE
Application/claim
Case management
The ET1 in both cases was settled by the same firm of solicitors. The ET1 in one case ran to 27 pages. The other was also extremely long. An Employment Judge gave a direction in each case that the Claimant should reduce their ET1 to one side of A4 paper. The Appellants objected that this would require them to omit claims and other important material.
The Particulars of Claim seem to have been witness statements. Such a practice is not helpful and does not further the overriding objective. The ET Rules state what should be in an ET1. Parties need to specify the claims they are making: Chapman v Simon. Without being prescriptive, the essentials to be pleaded are likely to be: (1) the legal basis for the claim: unfair dismissal, direct race discrimination etc; (2) what the act or omission complained of was; (3) who carried out the act; (4) when the act or omission complained of occurred; (5) why complaint is made of the act/omission; (6) anything affecting remedy.
It is an error of law/perverse for an EJ to limit what there is in an ET1. If some paragraphs set out irrelevant matters or are embarrassing (in the legal sense) to plead to, there could be an application to strike out the offending paragraphs. At the end of a hearing question of costs may arise if the ET1 (or 3) is unreasonably prolix leading to waste of costs. The appropriate way of dealing with prolix pleadings is by identifying issues at a case management discussion (see Mummery LJ in Hendricks at para 53). The issues must not be over elaborate or numerous (Mummery LJ in St Christopher’s Fellowship v Walters-Ennis [2012] EWCA Civ 921). Appeals allowed; directions given for CMDs.

Judges:

Slade J

Citations:

[2012] UKEAT 0139 – 12 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459915

EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Polkey deduction
The Employment Tribunal misunderstood the basis of a Polkey reduction and made no deduction as it concluded that were there to be a further dismissal process the Respondent would again not conduct a fair procedure. The Employment Tribunal held that the proper approach to a Polkey deduction was to assume that the employer would have carried out a proper procedure.
At the parties’ invitation and with their agreement, and in order to save the expense of a further hearing the Employment Appeal Tribunal assessed the appropriate Polkey deduction.

Judges:

Serota QC J

Citations:

[2012] UKEAT 0035 – 12 – 2304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459928

EAT UNFAIR DISMISSAL – Polkey deduction
Employer appeal allowed by consent against Employment Tribunal finding of no Polkey deduction based on the balance of probabilities.
Case remitted to same ET to determine percentage chance that Claimant would have remained in employment following a fair procedure.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0582 – 11 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459935

EAT JURISDICTIONAL POINTS
Extension of time: reasonably practicable
Extension of time: just and equitable
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Tribunal erred in failing to have regard to the issue of fault on the part of the Appellant. The Employment Tribunal erred in failing to apply a sufficiently stringent test before deciding to strike out the claim.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0614 – 11 – 1904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459919

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal claim. Employer’s case that dismissal was for gross misconduct (failure to comply with reasonable instruction).
Employment Tribunal rejected Claimant’s claim. Appeal brought on basis that the Tribunal’s reasons do not identify precisely what the instruction was. Without that, it could not properly determine whether it was ‘reasonable’.
Appeal dismissed
The Tribunal had found as a fact what the instruction was and had made no error in reviewing employer’s decision that it was a reasonable instruction, non-compliance with which warranted dismissal.

Judges:

Luba QC

Citations:

[2012] UKEAT 0573 – 11 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459926

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
JURISDICTIONAL POINTS – Worker, employee or neither
There was no evidence that would justify the decision of the Employment Tribunal that the Claimant had raised a prima facie case of discrimination such as to bring into play the reverse burden of proof in s.63A of the Sex Discrimination Act.
Although the ET rejected the Respondent’s explanation for the Claimant’s dismissal (redundancy) it found that the reason for her dismissal was her refusal to work from her office, as opposed to her home. Accordingly the finding of direct sex discrimination by the ET could not stand.
The decision of the ET that the Claimant was an employee throughout the relevant period was correct on the facts before it, and its self direction as to the relevant law was impeccable.

Judges:

Serota QC J

Citations:

[2012] UKEAT 0307 – 11 – 1405

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459938

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
An appeal alleged bias (actual and apparent) where the EJ had given evidence 7 years earlier in a possession action brought by the local authority against a former partner of his, to which he was not party, and had shortly thereafter had a charging order placed on residential property he owned together with his partner in respect of her liability for the costs of that action. The order had been discharged by payment of the debt on the day of a hearing to grant a power of sale to enforce the order, in respect of which the judge had noted his desire to appear to object to sale. He had not disclosed these circumstances to the parties. A finding of unfair dismissal was made by the ET, and no appeal made against that other than on grounds of bias. Antipathy to the Authority was (it was said) supported by making a decision as to absence of contribution in favour of the claimant, without first inviting submissions, and by one overstatement of evidence in favour of the claimant. Held that on the established test there was no realistic possibility of bias.

Judges:

Langstaff J P

Citations:

[2012] UKEAT 0581 – 11 – 0205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459937

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
Effective date of termination. Date of letter in which Claimant intimated resignation ‘with immediate effect’ held to be the EDT notwithstanding its delivery to the Respondents the previous day in circumstances in which she reasonably believed it would not be read until the date on her letter and, objectively, had no reason to believe otherwise.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0039 – 11 – 1704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459934

EAT PRACTICE AND PROCEDURE – Costs
Challenge on various grounds to the Tribunal’s decision to refuse the successful employer’s application for costs at the end of a full hearing. Held – the Tribunal did not err in law; guidance in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 applied.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0021 – 12 – 1604

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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: 31 October 2022; Ref: scu.459920

EAT TRANSFER OF UNDERTAKINGS – TUPE. Employment Tribunal found that there had been an assignation of a lease of commercial premises from the Claimant’s father (who employed her) to the Appellants. There were no other findings relevant for TUPE purposes. The Tribunal made no findings as to whether there was an identifiable economic entity before the assignation of the lease and if so, what it was. Nor did they make any findings as to whether there was a transfer of any such economic entity. The Claimant’s case was, simply, that since the lease had transferred, there had been a ‘classic’ TUPE transfer and the Tribunal agreed with that proposition. On appeal, Tribunal held to have erred in law. Whilst TUPE can apply where there is an assignation of a lease, it requires to be shown that there was an economic entity (i.e. an organised grouping of persons and assets enabling or facilitating the exercise of an economic activity in pursuit of a specific objective) before the assignation which retained its identity afterwards. The only relevant fact found was that there was an assignation of a lease; that was insufficient to establish that TUPE applied.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0058 – 11 – 1105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459936

EAT PRACTICE AND PROCEDURE
Application/claim
Case management
The ET1 in both cases was settled by the same firm of solicitors. The ET1 in one case ran to 27 pages. The other was also extremely long. An Employment Judge gave a direction in each case that the Claimant should reduce their ET1 to one side of A4 paper. The Appellants objected that this would require them to omit claims and other important material.
The Particulars of Claim seem to have been witness statements. Such a practice is not helpful and does not further the overriding objective. The ET Rules state what should be in an ET1. Parties need to specify the claims they are making: Chapman v Simon. Without being prescriptive, the essentials to be pleaded are likely to be: (1) the legal basis for the claim: unfair dismissal, direct race discrimination etc; (2) what the act or omission complained of was; (3) who carried out the act; (4) when the act or omission complained of occurred; (5) why complaint is made of the act/omission; (6) anything affecting remedy.
It is an error of law/perverse for an EJ to limit what there is in an ET1. If some paragraphs set out irrelevant matters or are embarrassing (in the legal sense) to plead to, there could be an application to strike out the offending paragraphs. At the end of a hearing question of costs may arise if the ET1 (or 3) is unreasonably prolix leading to waste of costs. The appropriate way of dealing with prolix pleadings is by identifying issues at a case management discussion (see Mummery LJ in Hendricks at para 53). The issues must not be over elaborate or numerous (Mummery LJ in St Christopher’s Fellowship v Walters-Ennis [2012] EWCA Civ 921). Appeals allowed; directions given for CMDs.

Judges:

Slade DBE J

Citations:

[2012] UKEAT 0140 – 12 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459914

EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
National Minimum Wage. Sheltered Housing Residential Wardens provided with ‘tied accommodation’ rent and council tax free. Contracts provided for salaried hours work of 36 hours per week. In addition, required to be ‘on call’ at tied houses outwith normal working hours on four nights during the working week. Whether entitled to NMW for entirety of ‘on call’ (or only in respect of any hours when actually called on to work)? On appeal, judgment of Employment Tribunal that wardens in fact engaged on 71 hours salaried hours per week set aside; Tribunal had failed to recognise that this was an ‘on call’ case of the type identified in British Nursing Association v Inland Revenue [2002] EWCA Civ 494 and Scottbridge Construction Limited v Wright [2003] IRLR 21, that, accordingly, reg 16 of the National Minimum Wage Regulations 1999 applied and that, further, the circumstances were such that they came within the exception provided for in reg 16(1A).

Judges:

Lady Smith

Citations:

[2012] UKEAT 0048 – 11 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459912

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants, the social worker responsible for the care of Baby P and her team manager, were held not to have been unfairly dismissed by Haringey for their respective failures in dealing with this case. The Employment Tribunal did not err in concluding that the Respondent was not precluded from conducting second formal disciplinary proceedings against them when a different view was taken of the seriousness of their defaults than that of the previous senior management. It was thought that the previous record keeping and procedural charges against them which were dealt with using a Simplified Procedure, under which the maximum penalty was a written warning which they received, did not adequately reflect the seriousness of their failings. The previous proceedings were rightly taken into account in determining the fairness of the dismissals. R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 AC 146 and Sarkar v West London Health NHS Trust [2010] IRLR 508 considered.
The ET did not misdirect themselves or come to a perverse conclusion in deciding that the delay between the events which formed the basis of the complaints against the Appellants and the second disciplinary proceedings did not cause them prejudice or render the dismissals unfair. A v B [2003] IRLR 405 and Slater v Leicestershire Health Authority [1989] IRLR 16 considered.
The ET did not err in law or come to perverse conclusions in dismissing the Appellants’ claims for unfair dismissal.

Judges:

Slade DBE J

Citations:

[2012] UKEAT 0298 – 11 – 2505

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Coke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .
Cited – Sarkar v West London Mental Health NHS Trust CA 19-Mar-2010
The doctor had been summarily dismissed for gross misconduct. He now appealed against the EAT’s reversal of the finding of unfair dismissal. The original procedure adopted was appropriate to a lesser level of misconduct, but the employer had later . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2022; Ref: scu.459906

EAT FIXED TERM REGULATIONS
Fixed term contracts
An employee on a fixed term contract applied to the Employment Tribunal for a declaration that she was permanently employed.
She relied on previous periods of service under earlier fixed term contracts as meeting the qualifying period under Regulation 8 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
The employer responded that the previous periods could not count as they fell within the exclusion from the regulations of certain types of employment under Government schemes as contained in Regulation 18.
The Employment Tribunal Judge held that as Regulation 18 provided that the Regulations did not apply to employments of the type described in Regulation 18, such periods of employment could not be used to accumulate the qualifying period.
Appeal allowed.
On a true construction, Regulation 18 was concerned only to exclude the application of the regulations to employees presently employed under a contract to which that regulation applied.
The employee’s current contract was not caught by Regulation 18 and nothing in Regulation 8 disqualified the employee from relying on past employment which would have been within Regulation 18.

Judges:

Luba QC

Citations:

[2012] UKEAT 0397 – 11 – 0305

Links:

Bailii

Statutes:

Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 18

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459907

EAT PRACTICE AND PROCEDURE – Costs
75 per cent of Respondent’s costs awarded to reflect the proportion of Claimant’s case which fell within the trigger criteria for awarding costs. No error of law. Yerrakalva (CA) and Arrowsmith (CA) considered and applied.

Judges:

Peter Clark

Citations:

[2012] UKEAT 0538 – 11 – 0903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459910

EAT Practice and Procedure – Appeal against refusals to extend time to complete step.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 1137 – 11 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459908

EAT UNFAIR DISMISSAL
Compensation
Contributory fault
Employment Tribunal (to whom the matter was remitted following an earlier decision for which the reasoning has been so scanty that it could not be known whether there had been an error of law) determined that the Claimant’s compensation should be reduced by reason of contributory conduct without identifying with any detail what that conduct was, and whether it was blameworthy, taking apparent account of a number of matters which could not be blameworthy, and misunderstanding the approach to take to a loss of trust and confidence between one employee and another in the context of a sizeable employer. It was in error to do so. A cross-appeal was also allowed because the ET had failed to consider when the period of loss for which it was making provision might end without unfairness on the part of the employer.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0623 – 11 – 3003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459913

Several former employees of the defendant claimed for payment of discretionary bonues. The bank replied that the bonuses were at their absolute discretion.
Held: They had indeed been wrongfully denied their contractual entitlement to certain discretionary bonuses for the calendar year 2008 promised by their employers.

Judges:

Owen J

Citations:

[2012] EWHC 1468 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2022; Ref: scu.459804

Supplementary judgment

Judges:

Sales J

Citations:

[2010] EWHC 1463 (Admin), [2011] 3 All ER 73

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459750

The claimant had been MD of the defendant company. On termination of the contract the company agreed to ay him salary in lieu of notice. It later (before payment) discovered misconduct which it thought would have permitted instant dismissal. The court was asked whether the sum was an accrued debt and as salary was payable in any event.
Held: It was.

Judges:

Mummery, Hallett, Tomlinson LJJ

Citations:

[2012] EWCA Civ 697, [2012] ICR 1231, [2012] 5 Costs LR 835, [2012] IRLR 679, [2012] WLR(D) 164, [2013] 1 WLR 238

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.459678

Citations:

[2000] UKEAT 852 – 99 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.264864

Claim for unlawful deduction from wages.

Citations:

[2007] EWCA Civ 19, [2007] IRLR 440, [2007] ICR 983

Links:

Bailii

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.248014

EAT Unlawful Deduction from Wages
Appeal against finding of unlawful deduction from wages.

Judges:

Peter Clark HHJ

Citations:

EAT/338/02, [2002] UKEAT 0338 – 02 – 2012

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.203301

Citations:

[2002] UKEAT 0950 – 01 – 2012

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.203292

Officials – Action for annulment – Measures and instructions falling within the ambit of discipline in the workplace – Measure adversely affecting an official – Action for damages – Inadmissibility.

Citations:

T-213/99, [2000] EUECJ T-213/99

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 31 October 2022; Ref: scu.173734

Citations:

[1996] EWCA Civ 519

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.140386

The Court considered the role of an Employment Tribunal in assessing an employer’s classification of conduct as gross misconduct, justifying summary dismissal.
Held: If an issue of conduct is being considered upon the facts of the case that is before the Industrial Tribunal, it should not venture into expressions of its own opinion on whether the issue is really one of capability, thus distorting the matter from not an assessment of what the employer did on a reasonable basis, which is the task of the tribunal, but rather as to whether the tribunal had their own personal view that what had happened was reasonable.
Neil LJ said: ‘where an employer has an established disciplinary procedure and the employer follows that procedure both in the classification of the matters to be investigated and the method of investigation, an Industrial Tribunal has to be very careful before it makes a reclassification. A reclassification of the facts may make it difficult to see how a reasonable employer might reasonably respond to those facts.’
Ward LJ said: ‘The Tribunal in fact found that the reason for dismissal shown by the employer related to the capability of the employee, not to her conduct. In my judgment, it was entitled so to find. What it was not entitled to find was that the employer ought to have approached the question of dismissal on that basis. In treating this as a capability case where a warning to improve was appropriate before dismissal, the Tribunal was guilty of substituting its classification of the reason for dismissal for the employers and substituting its decision as to the right course to adopt for that of the Council. In so doing, it erred.’

Judges:

Neil, Ward LJ

Citations:

[1996] EWCA Civ 561

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Clancey Ltd v Akram EAT 20-Oct-1997
. .
Cited – Sterzo v London Borough of Lewisham EAT 2-Oct-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2022; Ref: scu.140428

The claimant sought damages for the consequences of having been suspended from work as a teacher. He later recovered damages for unfair dismissal, and the court had struck out his claim for damages over and above those already awarded.
Held: There is no absolute bar against a claim for damages not covered by the Employment Tribunal. The claimant had suffered psychiatric damage during the period of suspension. The Johnson case said that common law claims for damages should not survive the system for compensating for unfair dismissal, but this applied only to damages associated with the dismissal. The right to claim damages could not be left to depend upon whether the employer actually dismissed the employee.

Judges:

Lord Justice Auld, Lord Justice Brooke, Lord Justice Sedley

Citations:

Times 28-Dec-2002, [2002] EWCA Civ 1887, [2003] IRLR 87, [2003] ICR 501, [2003] PIQR P19

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Gogay v Hertfordshire County Council CA 26-Jul-2000
The employee sought damages for breach of the implied term of trust and confidence, even though she remained throughout the employment of the Council against whom she was bringing proceedings.
Held: Her remaining in employment was a factor . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Appeal from – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2022; Ref: scu.178536

The failure to comply with the right to have three councillors to hear an appeal was breach of the employers procedure, but the dismissal remained fair. The non-compliance did not itself and necessarily make the procedure unfair.

Citations:

Times 08-May-1996, Gazette 10-Jul-1996

Statutes:

Employment Protection (Consolidation) Act 1978 57(3)

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.90419

The Appellant, the Claimant below, challenged the fairness of his dismissal, which the Respondent said was for redundancy, on three grounds. These were (1) the purported redundancy reason was a sham; (2) there was no redundancy situation; and (3) even if the dismissal was by reason of redundancy, the dismissal was unfair. The Employment Tribunal fully addressed grounds (1) and (3) but, in relation to ground (2), the Tribunal simply stated its finding that there was a genuine redundancy situation, and did not explain or give reasons for its conclusion.
The appeal is allowed on this ground and the issue of whether there was a genuine redundancy situation is remitted to a differently-constituted Employment Tribunal.
The second ground of appeal, perversity, is dismissed.

Citations:

[2020] UKEAT 0237 – 19 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 October 2022; Ref: scu.653915

Citations:

[2000] UKEAT 984 – 99 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 October 2022; Ref: scu.265423

The appellant had been a ‘trainer manager’ involving presentations at induction courses. He was also a shop steward of a recognised trade union. At the induction course he was also permitted to give a presentation about the union. At the particular induction course in question the appellant had made disparaging remarks about the company and accepted that he had gone ‘well over the top’. Bass took exception to his remarks. It demoted him from the position of trainer in circumstances amounting to a constructive dismissal. The Tribunal rejected his claim under section 152 and found that the reason for the dismissal related to Mr Burgess’ conduct in abusing the privilege given to him by his employers to use the meeting as a recruitment forum. The EAT allowed his appeal and substituted a finding that the dismissal was on the grounds of trade union activities.
Held: The company’s appeal failed. it was not a permissible option for the Industrial Tribunal to find that dismissal was other than for trade union activities. The implied limitation on those activities contended for by the employer was unsustainable.
However, Pill LJ said: ‘I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term ‘trade union activities’ in s.58 of the Act.’

Judges:

Balcombe, Pill LJJ, Sir Ralph Gibson

Citations:

[1995] EWCA Civ 40, [1995] IRLR 596

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 152 192

Jurisdiction:

England and Wales

Citing:

Appeal from – Burgess v Bass Taverns Ltd EAT 2-Feb-1994
The Tribunal was asked whether the appellant was acting in the course of being a trade union representative at the time when he was dismissed. There was a finding that he was unfairly dismissed but the Appellant complained there had been no finding . .

Cited by:

Applied – Mihaj v Sodexho Ltd EAT 23-May-2014
EAT Trade Union Rights : Interim Relief – An Employment Judge dismissed the Claimant’s application for interim relief under Trade Union and Labour Relations (Consolidation) Act 1992 section 161. The Employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 October 2022; Ref: scu.259342

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

The Honourable Lord Johnston

Citations:

[2003] UKEAT 0032 – 02 – 3001, EATS/0032/02

Links:

Bailii, EAT

Jurisdiction:

Scotland

Employment

Updated: 27 October 2022; Ref: scu.202288

The IT can consider an unfair dismissal claim amended with new ground after time. Each claim for extension of time for filing is to be looked at individually. A second out of time application may be heard if a different ground-time is re-started.

Citations:

Gazette 17-Jan-1996, Ind Summary 15-Jan-1996, Times 20-Dec-1995

Statutes:

Employment Protection (Consolidation) Act 1978 67(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Marley (Uk) Ltd and Another v Anderson EAT 16-Dec-1993
An IT can consider a complaint of unfair dismissal amended with new a ground after time would otherwise have expired. . .

Cited by:

Appealed to – Marley (Uk) Ltd and Another v Anderson EAT 16-Dec-1993
An IT can consider a complaint of unfair dismissal amended with new a ground after time would otherwise have expired. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 October 2022; Ref: scu.83418

Where there were two questions on a strike vote ballot, the majorities were to be considered separately.

Citations:

Ind Summary 19-Sep-1994

Statutes:

Trade Union Act 1984 10(3)

Jurisdiction:

England and Wales

Employment

Updated: 26 October 2022; Ref: scu.90395

Judges:

Reid QC HHJ

Citations:

[2009] EWHC 727 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 October 2022; Ref: scu.393023

Citations:

[1837] EngR 150, (1837) 2 M and W 764, (1837) 150 ER 965

Links:

Commonlii

Jurisdiction:

England and Wales

Employment

Updated: 25 October 2022; Ref: scu.313267

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.

Judges:

Waller LJ, Laws LJ, Leveson LJ

Citations:

[2006] EWCA Civ 1462, [2007] IRLR 211, [2006] ICR 1565

Links:

Bailii

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001

Jurisdiction:

England and Wales

Citing:

Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Breeze Benton Solicitors (A Partnership) v Weddell EAT 13-May-2004
EAT Practice and Procedure – Bias, misconduct and procedural irregularity – Appeal based on refusal of ET Chairman to recuse himself following previous proceedings involving the same Respondent and his complaint . .

Cited by:

Cited – Dodsworth v Crown Prosecution Service Admn 8-Nov-2010
The defendant effectively sought to appeal against his conviction on his own guilty plea to possession of wild bird eggs. They had been collected before possession itself was made an offence, and he had received them before the 2004 Act, after which . .
Cited – Westlb Ag London Branch v Pan EAT 19-Jul-2011
EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Employment Judge, while rejecting a complaint of bias, ordered that a fresh panel be convened to continue the hearing of a case. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 October 2022; Ref: scu.246000

EAT National Minimum Wage

Judges:

His Hon Judge Birtles

Citations:

EAT/1097/02, [2003] EAT 1097 – 02 – 0306, [2003] UKEAT 1097 – 02 – 0306

Links:

Bailii, Bailii, EAT

Statutes:

National Minimum Wage Regulations 1999&

Jurisdiction:

England and Wales

Cited by:

Reconsidered – MacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 October 2022; Ref: scu.183590

Civil service – Officials – Moral harassment – Request for assistance – Rejection of the request – Interests of the service – Equivalence of posts – Reasonable time – Lack of prima facie evidence – Liability

Citations:

ECLI:EU:T:2020:590, T-705/19, [2020] EUECJ T-705/19

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 25 October 2022; Ref: scu.660727

Civil service – Officials – Surviving spouse – Survivor’s pension – Articles 18 and 20 of Annex VIII to the Staff Regulations – Conditions of eligibility – Duration of marriage – Exception of illegality – Equal treatment – Principle of non-discrimination on the basis of age – Proportionality

Citations:

, T-315/19, [2020] EUECJ T-315/19

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 25 October 2022; Ref: scu.660700

Renewed application for permission to appeal

Judges:

Moore-Bick LJ

Citations:

[2015] EWCA Civ 1444

Links:

Bailii

Statutes:

Employment Act 2000 32

Jurisdiction:

England and Wales

Employment

Updated: 25 October 2022; Ref: scu.560436

Citations:

[2001] UKEAT 1400 – 00 – 0105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.203845

Citations:

[1994] UKEAT 401 – 92 – 2501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.209648

Citations:

[2005] EWCA Civ 411, [2005] IRLR 891

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.224241

Citations:

[1996] UKEAT 828 – 95 – 1810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.208655

EAT Contract of service, or for services. TANTON. McFARLANE. Not a contract for personal service based on express contractual term providing for substitution. ET finding of contract of service overturned. Employer’s Appeal allowed.

Judges:

Peter Clarke J

Citations:

[2004] UKEAT 0022 – 04 – 1803, UKEAT/0022/04

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.196808

Citations:

[2001] EWCA Civ 724

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.201089

Unlawful deduction from wages.

Citations:

[2001] EWCA Civ 1032, [2001] IRLR 629

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 October 2022; Ref: scu.201125

The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Held: Stopping the case was a step which no reasonable tribunal, properly directing itself, would have taken in these circumstances, and the appeal against the Employment Tribunal’s decision must succeed. ‘The shortcut [of the submission of no case to answer] has once again led to a much longer journey for the parties at greater expense.’

Judges:

Lord Justice May Lord Justice Ward Lord Justice Carnwath

Citations:

[2003] EWCA Civ 1068, Times 04-Sep-2003, Gazette 02-Oct-2003, [2004] ICR 1, [2004] IRLR 63

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ridley v GEC Machines Ltd 1978
The claimant asserted constructive dismissal.
Held: ‘The argument has revolved around the fact that because of the invitation to the respondent employers to call no evidence their side of the story was never given and so the case was never . .
Cited – Coral Squash Clubs Ltd v Matthews 1979
Slynn J said: ‘We do not think there is a rigid rule of the kind which Mr Brooke first contended for [viz, that a submission of no case should never be allowed except perhaps if there was an error of law]. It is clear that in many cases it is of . .
Appeal from – J Logan v The Commissioners of Custom and Excise EAT 21-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal . .
Cited – Oxford v Department of Health and Social Security 1977
The tribunal had declined a submission of no case to answer.
Philips J said: ‘It seems to us that that the [decision] was a very proper course to have adopted, and we recommend it as being the course which is in most circumstances the right . .
Cited – Walker v Josiah Wedgwood and Sons Ltd 1978
‘The general approach, as we think, must be that in cases concerned with unfair dismissal, whether it be constructive dismissal or direct dismissal, the conception of submission of no case to answer is somewhat out of place.’ . .
Cited – Jones v Mid-Glamorgan County Council CA 13-May-1997
On being told he was to be dismissed, Mr Jones had taken early retirement. He made a claim in the County Court that his pension had been wrongly reduced, The court rejected his allegation that he had acted under duress. His subsequent claim of . .
Cited – Hackney London Borough Council v Usher 1997
‘ it is open to a tribunal to stop a case at half time where a party going first and upon whom the onus lies has clearly failed to establish what he set out to establish. . . Thirdly, there have been and will be utterly hopeless or frivolous cases . .
Cited – Audrey Margaret Clark v Watford Borough Council EAT 4-May-2000
EAT Procedural Issues – Employment Tribunal
‘(1) There is no inflexible rule of law and practice that a tribunal must always hear both sides, although that should normally be done: Ridley.
(2) The . .
Cited – Miller (T/A Waterloo Plant) v Cawley CA 30-Jul-2002
At the end of the claimant’s case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed.
Held: It is not . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .

Cited by:

Appealed to – J Logan v The Commissioners of Custom and Excise EAT 21-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 October 2022; Ref: scu.184875