EAT Unfair Dismissal : Reinstatement or Re-Engagement – Claimant a cabin crew member held to have been unfairly dismissed but to have contributed to a high degree to his dismissal (80%) and Tribunal held that a fair dismissal might well have occurred in any event so that a Polkey reduction of 50% was made.
At a remedy hearing, the Claimant sought reinstatement or re-engagement which was contested on the basis that it was not practicable given the Respondent’s belief in the Claimant’s misconduct and not just. The Tribunal decided both were practicable, but reinstatement would not be just in light of the high level of contribution. It held that re-engagement would be just because the contributory conduct could be reflected by making no arrears of pay award, thus obviating injustice to the Respondent.
Held: allowing the appeal. To make an order described as a re-engagement order but reinstating the Claimant to his former role on the same terms as previously held was wrong in principle where the Tribunal had decided that reinstatement would not be just. Further, had the Tribunal considered whether re-engagement was just as required by the statute, it would inevitably have reached the same conclusion.

Simler J DBE
[2014] UKEAT 0056 – 14 – 2606, [2014] IRLR 683, [2014] ICR D29
Bailii
England and Wales
Cited by:
Cited – McBride v Scottish Police Authority (Scotland) SC 15-Jun-2016
The court was asked whether the employment tribunal had been correct, after finding that the appellant had been unfairly dismissed, to order her reinstatement. She had worked as a fingerprint officer, but her reinstatement was to be on terms that . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 December 2021; Ref: scu.527198

EAT Unfair Dismissal : Constructive Dismissal – Contributory fault – The Employment Judge found that the employer/Appellant had acted in repudiatory breach of contract in the way they had dealt with a disciplinary hearing which resulted in the Claimant’s dismissal. The Claimant had appealed against the dismissal and made it clear in the course of the appeal hearing that he wanted his job back. His appeal succeeded and the Appellant said he was reinstated but he resigned claiming constructive unfair dismissal. The EJ rejected the Appellant’s affirmation defence.
The EAT upheld the appeal on the grounds:
(1) that the EJ had not considered whether the Claimant had resigned ‘in response to’ the breach of contract;
(2) that the EJ had wrongly concluded that in the circumstances the Claimant had not affirmed the contract of employment in relation to the breach on the basis of authorities which were not relevant;
(3) that the EJ had wrongly left out various aspects of the Claimant’s conduct in considering contributory fault having found that they were part of the s98(1) ERA reason for the dismissal (albeit constructive).
Although the merits indicated very strongly that the Claimant’s claim would fail, since the EJ had not addressed the reason for the resignation the EAT could not exclude the possibility that the Claimant had resigned (and been entitled to resign) in response to something the Appellant had done after the hearing of the appeal and the case therefore had to be remitted for re-hearing before a fresh ET.

Shanks HHJ
[2014] UKEAT 0489 – 13 – 2705
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.527197

EAT Practice and Procedure : Amendment – UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Judge entitled to refuse Claimant’s application to amend form ET1 to add a complaint of disability discrimination (failure to make reasonable adjustments) to a claim of unfair dismissal; this was a new cause of action based on different facts.
Further, the EJ was entitled to conclude that the Claimant’s dismissal by reason of ill-health incapability was fair. Claimant’s appeals dismissed.

Peter Clark HHJ
[2014] UKEAT 0510 – 13 – 0404
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.527196

EAT Unfair Dismissal : Reasonableness of Dismissal – A number of grounds were raised to challenge an Employment Tribunal’s decision that the dismissal of the Claimant for failing deliberately to obey a reasonable management instruction. All failed on the facts.

Langstaff P J
[2014] UKEAT 0400 – 13 – 0702
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.527195

EAT Practice and Procedure : Restriction of Proceedings Order – 30 claims and numerous applications within claims brought in the Employment Tribunal, almost all were weak or hopeless and conducted vexatiously. S.33 order made

Mitting J
[2014] UKEAT 0435 – 13 – 1203
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.526974

EAT Unfair Dismissal – The Employment Tribunal was not wrong in law, or perverse, or in breach of Article 8 to conclude that, in all the circumstances described by the ET, the Respondent decision taker was reasonable in holding a genuine belief that the Appellant’s failure to disclose to her employer the fact of her relationship with a convicted sex offender was gross misconduct.
Arising out of that, the finding of the ET that the dismissal was unfair was correctly limited to the circumstances of the internal appeal procedure and the findings under ‘Polkey’ and by way of contribution could not be faulted.

Wilkie J
[2014] UKEAT 0409 – 13 – 2002
Bailii
England and Wales
Cited by:
Appeal from – A v B Local Authority and Another CA 19-Jul-2016
The appellant was a head teacher at a primary school, of which the second respondent was the governing body, until she was summarily dismissed for gross misconduct in May 2011. The reason for her dismissal was that she had failed to reveal to the . .
At EAT – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 December 2021; Ref: scu.526973

EAT Unfair Dismissal – Definition of ‘disabled person’. An Employment Tribunal had erred in its approach to whether the Claimant had an impairment having a substantial adverse effect on her.
However, the Tribunal had found on unimpeachable grounds that any such effect was not long-term. It follows that the definition was not met. Additionally, the appeal was wholly academic. The Tribunal had held that the claims of disability-related discrimination would have failed on their merits, given the facts of the case, even if she had been a disabled person.

Luba CQ Rec
[2014] UKEAT 0520 – 13 – 0804
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.526976

EAT Unfair Dismissal : Constructive Dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
JURISDICTIONAL POINTS – Claim in time and effective date of termination
C brought two claims: unfair dismissal (constructive), and direct race discrimination. Although the Employment Tribunal concluded there had been two acts of direct race discrimination/harassment against C by a fellow worker, the general manager had not (as he had promised) told C of the outcome of his first informal complaint about the first of those, and (after a properly considered grievance was rejected, and C complained about the outcome to Head Office) the HR director had purported to carry out further investigation (though she had not in fact done anything much if at all, after significant delay), and C resigned only 6 weeks later. Both claims were dismissed. The ET thought that the resignation was too late for C still to be entitled to accept the employer’s repudiation (which it found as fact); and that the second of two acts by Herbert was 8 months before the claim and it would not be just and equitable to extend time in respect of it.
Held: Both these decisions were in error – the first because the ET did not set out its reasons for concluding it was too late, especially since C was off sick at the time and inferences could not so readily be drawn as to affirmation of contract where he was not actively working, and it looked as if the ET regarded passage of time alone as sufficient in itself; the second because the ET had had an argument addressed to it that there was a continuing act/continuum of behaviour, until at least a time within three months of the claim, and had failed altogether to deal with it.

Langstaff J P
[2014] UKEAT 0201 – 13 – 2603
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.526975

EAT JURISDICTIONAL POINTS – Worker, employee or neither
Extended definition of ‘worker’ etc for the purposes of Part IVA Employment Rights Act 1996 – approach to section 43K(1)(a)(i) (‘worker’) and section 43K(2)(a) (’employer’).
In construing these provisions, it was relevant to have regard to the fact that section 43K was explicitly introduced for the purpose of providing protection to those who have made protected disclosures and it was appropriate to adopt a purposive construction, to provide protection rather than deny it, where one can properly do so, see per Wilkie J in Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303, EAT. The whole purpose of this statutory extension to the definition of ‘worker’ and ’employer’ was to go beyond the normal contractual focus of those terms for statutory purposes in the employment field and did not require the existence of a contract, see per Cox J in Sharpe v (1) The Worcester Diocesan Board of Finance Ltd and (2) The Bishop of Worcester UKEAT/0243/12/DM, and extended to the situation where (as here) the individual had been introduced or supplied by an agency and was operating through their own service company (see Croke).
In the present case, the Employment Tribunal had proper regard for the contractual provisions between the parties and reached conclusions on the questions whether the Claimant was ‘introduced or supplied’ (section 43K(1)(a)(i)) that were open to it on the evidence.
As for the question of the substantial determination of the terms of the Claimant’s engagement for the purposes of section 43K(1)(a)(ii) or section 43K(2)(a), the Tribunal was entitled to look at the various contracts relevant to the relationship and to see how these worked in practice. To the extent that there was a distinction between the approach to be taken in respect of each subsection, the Tribunal made no error of law but again reached conclusions that were properly open to it on the evidence.
Appeal dismissed.

Eady QC
[2014] UKEAT 0019 – 14 – 2006
Bailii
England and Wales

Employment

Updated: 05 December 2021; Ref: scu.526977

The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed.

Hamblen J
[2009] EWHC 1253 (QB)
Bailii
England and Wales
Citing:
Cited – Fowkes And Another, Executors and Co, v The Manchester And London Life Assurance And Loan Association 1-May-1863
A life policy of insurance was entered into with a Company on the life of HF, which was founded on a written declaration of the assured agreed to be the basis of the contract between the parties, and contained a proviso that ‘if any statement in the . .
Cited – Revell v London General Insurance Co 1934
MacKinnon J said: ‘if there is an ambiguity in this question so that upon one view of the reasonable meaning which is conveyed to the reasonable reader of it the answer was not false, the company cannot say that on the other meaning of the words the . .
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Wishart v National Association of Citizens Advice Bureaux Ltd CA 1990
Mustill LJ said: ‘Undeniably, it is possible for an employer to make an offer conditional on something to be objectively determined (for example, the passing of a medical examination).’ . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – Zeller v British Caymanian Insurance Company Ltd PC 16-Jan-2008
(Cayman Islands) The Board considered the effect of a misdeclaration on a proposal for medical insurance.
Lord Bingham considered a statement which was said to be ‘complete and correct to the best of my knowledge and belief’. Lord Bingham . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Avon Insurance v Swire Fraser Ltd 2000
The claimant sought damages, alleging misrepresentation.
Held: Damages under section 2(1) of the 1967 Act are assessed on the fraud measure. The court drew a distinction between a factor which is observed or considered by a plaintiff, or even . .
Cited – Moore Large and Company Ltd v Hermes Credit and Guarantee Plc ComC 20-Jan-2003
An insurance company is not entitled to go outside the scope of the questions it asks. The proposer is entitled to assume that the company asks for the information it wants. . .
Cited – Peek v Gurney HL 31-Jul-1873
A prospectus for an intended company was issued by promoters who were aware of the disastrous liabilities of the business of Overend and Gurney which the company was to purchase. The prospectus made no mention of a deed of arrangement under which . .
Cited – Schwarzkopf Limited v Desmond Quinn SCS 25-Jun-2002
. .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – 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 . .
Cited – Koo Golden East Mongolia v Bank of Nova Scotia and others CA 19-Dec-2007
When making an order for the production of documents by a third party to an action, Sir Anthony Clarke MR said that it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy. . .
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Cited – Moores v Bude-Stratton Town Council EAT 27-Mar-2000
EAT Unfair Dismissal – Reason for dismissal including substantial other reason
Lindsay J said: ‘As for determining whether a wrongdoer is on his own business, just as no single test is nowadays seen to be . .
Cited – Regina v Secretary of State for Trade ex parte Perestrello 1981
When an investigating body is acting in a policing role, looking into whether suspicions of wrongdoing are justified by what they find, ‘it is wholly inappropriate for the case to be approached in the same way as one would approach a person . .
Cited – Regina v Avon County Council Ex Parte Crabtree CA 15-Nov-1995
Rules of natural justice need not always be followed if the context requires. The scope of the common law rule against bias and its application to the facts of a particular case depends on what the facts are, as does the content of the obligation to . .
Cited – Chandler v London Borough of Camden Admn 13-Feb-2009
Forbes J considered the test for whether apparent bias was shown when it was suggested that the local authority may have already made up its mind on a school re-organisation. . .
Cited – Baron v Crown Prosection Service 13-Jun-2000
Morison J said: ‘Equally, citizens have an unfettered access to the Courts to resolve disputes and to conduct those proceedings forcefully, causing legitimate aggravation to the other party within the procedural rules. Persons will or may feel . .
Cited – Allen v London Borough of Southwark CA 12-Nov-2008
The claimant appealed against a strike out of his claim for harrassment after being subjected to five sets of possession proceedings by the defendant, each of which relied upon the same bad point.
Held: The Court refused to strike out a claim . .
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Doubted – Royscot Trust Ltd v Rogerson 1991
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would . .
Cited – Kapfunde v Abbey National Plc and Dr Daniel and Another CA 25-Mar-1998
A Doctor employed by a potential employer to report on the health of applicants for employment, owed no duty of care to those applicants. . .
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 – Thomas v News Group Newspapers Ltd and Simon Hughes CA 18-Jul-2001
A civilian police worker had reported officers for racist remarks. The newspaper repeatedly printed articles and encouraged correspondence which was racially motivated, to the acute distress of the complainant.
Held: Repeated newspaper stories . .
Cited – Cain v Francis CA 18-Dec-2008
The court was asked under what circumstances it should exercise its discretion to extend the limitation period under section 33.
Held: Lady Justice Smith said: ‘It appears to me that there is now a long line of authority to support the . .
Cited – Hewison v Meridian Shipping Pte, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd CA 11-Dec-2002
The claimant was awarded damages for injuries suffered in his work as a seaman. The respondents claimed that he should not receive damages, since he had made false declarations as to his health in order to obtain employment, hiding his epilepsy . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation, Standard Chartered Bank v Pakistan National Shipping Corporation and Others and Another and Others (Nos 2 and 4) HL 6-Nov-2002
Fraudulent Misrepresentation by Company Director
Fraudulent bills of lading had been issued in order to rely upon letters of credit issued by the bank. The director signing the bills sought to avoid personal liability, saying it was the Act of the company. The defendant company also appealed on . .
Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd CA 11-Jan-2007
A substantial private archive of valuable books had been damaged when the defendant’s water mains burst. The court was asked to assess the value.
Held: The water company’s appeal failed save to a small extent. The articles were of substantial . .
Cited – British Transport Commission v Gourley HL 1955
It is a universal rule that the plaintiff cannot recover more than he has lost and that realities must be considered rather than technicalities. The damages to be awarded for personal injury including loss of earnings should reflect the fact that . .
Cited – Komercni Banka, A S v Stone and Rolls Ltd and Another ComC 15-Nov-2002
Toulson J discussed a set off against a claim for damages: ‘The question whether an alleged benefit should or should not be taken into account cannot be determined by mere application of the ‘but for’ test. Where the wrongful conduct consists of . .
Cited – Midco Holdings Ltd and Another v Piper CA 6-Apr-2004
Where a defendant in a deceit claim, or in a negligence claim, contends that the claimant must give credit against its losses for financial benefits which are alleged to have resulted from the tort, the evidential burden rests on the defendant to . .
Cited – R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others (No 4) ComC 10-Jul-2006
. .
Cited – R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others ComC 27-Jan-2006
It had held that the defendant insurance intermediaries were liable to the claimants, a German reinsurance company, because of a conspiracy to defraud the claimants on the part of one of the defendants’ employees. The court had to decide issues of . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 December 2021; Ref: scu.346900

Civil service – Officials – Middle management post – Rejection of candidacy – Vacancy notice – Selection procedure – Obligation to state reasons – Equality between men and women

T-253/18, [2019] EUECJ T-253/18, ECLI:EU:T:2019:488
Bailii
European

Employment

Updated: 05 December 2021; Ref: scu.665161

Renewed application for permission to appeal

Rimer LJ
[2014] EWCA Civ 828
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526738

EAT Practice and Procedure : Amendment – C remained employed by the transferor of part of an undertaking, in which both he and the transferor said he worked so much as to be assigned to it, after that part was transferred to a transferee employer. He accepted in writing and orally, though not always consistently, that he had not complained to the ET that the transferee’s refusal to accept him as an employee was a dismissal by it. He filed his ET1 asking for compensation in respect of the transfer, because he thought himself at risk of redundancy. Those fears proved justified: he was made redundant by the transferor some 6 months after the transfer. He did not take a number of opportunities to clarify to what his claim for compensation related, despite being asked by R to particularise it; at 3 successive CMDs it was identified as being in respect of a failure to consult. After the second of those, C filed an ET1 claiming dismissal by the transferee. It was not until some 5 months after this that he sought to amend his existing claim to add a complaint of dismissal, arguing that it was intrinsic to his existing claim, and arose out of the same facts. An EJ refused the amendment, on the basis of the principles in Selkent v Moore. C argued that the discretion was flawed in law, in part because the EJ had applied a ‘balance of prejudice’ test whereas Mummery J had referred in Selkent to balancing ‘injustice and hardship’,
Held: The Judge directed himself appropriately, and did not take into account any irrelevant factor or leave out of account any relevant one. There was meaningful difference between ‘prejudice’ on the one hand and ‘injustice and hardship’ on the other. Appeal dismissed.

Langstaff J P
[2014] UKEAT 0049 – 13 – 0603
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526664

The applicant sought judicial review of the respondent’s decision to select candidates for redundancy by means of a lottery-type exercise.

[2014] NIQB 7
Bailii
Northern Ireland
Cited by:
Cited – McCord, Re Judicial Review QBNI 28-Oct-2016
The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 December 2021; Ref: scu.526615

Application for judicial review challenging the decision of The Industrial Tribunals and The Fair Employment Tribunal of Northern Ireland dismissing his request for a full merits review and refused to state a case to the Court of Appeal.

Treacy J
[2014] NIQB 23
Bailii
Northern Ireland

Employment

Updated: 04 December 2021; Ref: scu.526620

[1999] UKEAT 422 – 97 – 2604
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205093

[1999] UKEAT 154 – 99 – 2704
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205102

[1999] UKEAT 380 – 99 – 2104
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205087

[1999] UKEAT 104 – 99 – 2304
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205113

[1999] UKEAT 124 – 99 – 1404
Bailii
England and Wales
Citing:
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 December 2021; Ref: scu.205071

[1999] UKEAT 252 – 95 – 0904
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205079

[1999] UKEAT 222 – 98 – 2704
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205078

[1999] UKEAT 1429 – 98 – 2604
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205066

[1999] UKEAT 803 – 98 – 0104
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205085

[1999] UKEAT 89 – 99 – 1504
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205074

[1999] UKEAT 255 – 99 – 2204
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205099

[1999] UKEAT 498 – 99 – 2704
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205067

[1999] UKEAT 1382 – 98 – 2403
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205012

[1999] UKEAT 1332 – 98 – 1404
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205061

[1999] UKEAT 98 – 99 – 2303
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.205017

In this case the Tribunal held that the Claimant was not the employee of the Respondent. It considered that while the tests in Ready Mix Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497 were largely satisfied the Respondent did not possess a sufficient degree of control over the Claimant to constitute him an employee of the Respondent. There was no written contract of employment that specified the rights and obligations of the parties. The Claimant appealed arguing that the facts found by the Tribunal implied that the Respondent had ultimate control of the Claimant and that the Tribunal had misdirected itself by focussing on whether the Claimant in fact acted independently. It was submitted that the true question was whether the facts and circumstances showed that the Respondent had the ultimate right to control the Claimant. Held (1) that there were insufficient facts found proved by the Tribunal from which it could be implied that the Respondent had retained ultimate control of the Claimant and was therefore an employee of the Respondent; (2) that the Tribunal had found that the degree of control exercised by the Respondent was insufficient to imply that the Respondent had ultimate control or such a degree of control as warranted a finding that the Claimant was an employee of the Respondent; and that there was an insufficient basis for holding that the Tribunal had erred in law.

Lord Summers
[2020] UKEAT 0010 – 19 – 1908
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.653917

EAT Jurisdictional Points : Worker, Employee or Neither – WORKING TIME REGULATIONS – Worker
CONTRACT OF EMPLOYMENT – Whether established
Employment status. The Claimant lodged a claim of unfair dismissal, age discrimination and a claim for holiday pay. The Respondent denied that he was an employee, arguing that he was a self-employed independent contractor. The Respondent is a private company limited by guarantee. It is the governing body of football in Scotland. It is responsible for administration of football refereeing in Scotland. All referees who officiate at matches under its jurisdiction have to register with it. The Claimant was registered and was a category 1 referee, having passed examinations and fitness tests. The Employment Judge found that the Claimant was not an employee for the purposes of section 230 of the Employment Rights Act 1996; she found that he was an employee for the purposes of the Equality Act 2010 and a worker for the purposes of the Working Time Regulations 1998.
Held: the EJ was entitled to find as she did. She considered all of the circumstances of the Claimant’s connection with the Respondent. She correctly analysed the facts and applied the law.

Lady Stacy
[2013] UKEAT 0024 – 13 – 1212
Bailii
Employment Rights Act 1996 230
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526536

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 Judge erred in determining that an Employment Tribunal at a liability hearing would not be likely to find that the Claimant was dismissed for taking part in trade union activities. He erred in so deciding on the basis that it was not likely that the Tribunal would find that the true reason for the dismissal was the activity as opposed to the way in which it was carried out. Absent certain features not present in this case, the way in which trade union activities are carried out is not material to the question of whether they fall within the scope of sections 161 and 152. Bass Taverns Ltd v Burgess [1995] IRLR 596 applied.

Dlade DBE J
[2014] UKEAT 0139 – 14 – 2305
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 161
England and Wales
Citing:
Applied – Burgess v Bass Taverns Ltd CA 31-Mar-1995
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 . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 December 2021; Ref: scu.526528

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – Reasonableness of dismissal
An Employment Tribunal judgment dismissing a ‘conduct’ unfair dismissal claim, which was notably sparse and succinct was criticised on appeal for being too brief and not dealing with a number of the Claimant’s points. These criticisms were rejected, on the facts and in the particular circumstances of the case. Enough was said to tell the Claimant why she had lost her claim.

Langstaff P J
[2013] UKEAT 0161 – 13 – 1302
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526530

EAT Redundancy : Fairness – DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant (C) was one of several carpenters made redundant by the Employer (E). He brought claims of unfair dismissal (UD), direct disability discrimination (DD) and failure to make reasonable adjustments (RA). C attended the hearing with bundle of undisclosed documents seeking to raise all aspects of UD claim. E opposed late admission of the documents and claimed that the UD issues had been narrowed by concession at an earlier CMD. If the hearing was to proceed, E said it should be limited only to issue of whether C had a disability.
Employment Tribunal (ET) admitted the late documents, held that all issues of UD were ‘live’, and declined to restrict scope of hearing to disability alone. ET upheld the UD claim, dismissed the DD claim and allowed the RA claim.
On E’s appeal it was contended: (1) the hearing should have been restricted to the disability issue or wholly postponed; and/or (2) the ET had not explained why the RA claims were ‘in time’ for the purposes of the statutory provisions, nor applied the Matuszowicz decision.
HELD:
(1) Ground 1 dismissed. It was impossible to say that the decision to proceed had been a perverse exercise of case management powers.
(2) Ground 2 allowed. The ET had not referred to the relevant statutory provision nor the Matuszowicz. The RA claim would go back to them to consider afresh whether it had been brought in time.

Luba QC Rec
[2013] UKEAT 0101 – 13 – 1212
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526538

EAT Jurisdictional Points – CONTRACT OF EMPLOYMENT – Incorporation into contract
Deductions from wages under Employment Rights Act 1996, sections 13 and 27.
The Claimant contended that unlawful deductions had been made from his wages following the Respondent issuing and the Claimant accepting a new contract of employment. The Respondent issued the contract in furtherance of a strategy to eradicate discrimination in pay. The Claimant argued that he was entitled to pay protection in respect of a bonus which had been paid under the original contract but was not paid under the new contract.
Held: the Employment Judge was entitled to find that the new contract had no term, express or implied in any way that pay protection would be paid. Appeal dismissed.

Lady Stacey
[2013] UKEAT 0006 – 13 – 0907
Bailii
Employment Rights Act 1996 13 27
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526533

EAT Unfair Dismissal : Reasonableness of Dismissal – Reason for dismissal including substantial other reason
Unfair dismissal; apparent bias; improper conduct by Employment Judge.
The employer dismissed three Claimants for gross misconduct. The Employment Tribunal found that the first and second Claimants had been fairly dismissed and that the third had been unfairly dismissed. The first and second Claimants appealed arguing that their dismissals had been unfair, and that the ET had substituted its judgment for that of the employer, and had made findings for which there was no factual basis. The Respondent appealed arguing that the third Claimant had been fairly dismissed and the ET had substituted its view for that of the employer.
Separately the Respondent argued that the EJ had the appearance of bias. His daughter was and is a partner in the firm which represented the third Claimant, but he had not disclosed that to parties. If he had done so, the Respondent might have asked him to recuse himself. Further and separately, the EJ had interrupted one of the Respondent’s witnesses when giving evidence and had thereby prevented her giving all the evidence she wished to give.
Held: the appeals are all refused. The ET looked at the investigation carried out by the Respondent, the decision made by it at first instance and the appeal which followed in great detail. It was entitled to decide as it did that the investigation was not of the best quality, and the first instance decision was flawed; but that the appeal cured the defect. It was entitled to find that the Respondent had before it sufficient material to find the first and second Claimants guilty of gross misconduct. The ET was entitled to find the investigation into the third Claimant was inadequate and that his dismissal was unfair.
The allegation of apparent bias was not made out. Neither was the allegation of improper conduct.

Lady Stacey
[2013] UKEAT 0041 – 12 – 1705
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526531

EAT Unfair Dismissal : Reasonableness of Dismissal – Reason for dismissal including substantial other reason
Unfair dismissal; apparent bias; improper conduct by Employment Judge.
The employer dismissed three Claimants for gross misconduct. The Employment Tribunal found that the first and second Claimants had been fairly dismissed and that the third had been unfairly dismissed. The first and second Claimants appealed arguing that their dismissals had been unfair, and that the ET had substituted its judgment for that of the employer, and had made findings for which there was no factual basis. The Respondent appealed arguing that the third Claimant had been fairly dismissed and the ET had substituted its view for that of the employer.
Separately the Respondent argued that the EJ had the appearance of bias. His daughter was and is a partner in the firm which represented the third Claimant, but he had not disclosed that to parties. If he had done so, the Respondent might have asked him to recuse himself. Further and separately, the EJ had interrupted one of the Respondent’s witnesses when giving evidence and had thereby prevented her giving all the evidence she wished to give.
Held: the appeals are all refused. The ET looked at the investigation carried out by the Respondent, the decision made by it at first instance and the appeal which followed in great detail. It was entitled to decide as it did that the investigation was not of the best quality, and the first instance decision was flawed; but that the appeal cured the defect. It was entitled to find that the Respondent had before it sufficient material to find the first and second Claimants guilty of gross misconduct. The ET was entitled to find the investigation into the third Claimant was inadequate and that his dismissal was unfair.
The allegation of apparent bias was not made out. Neither was the allegation of improper conduct.

Lady Stacey
[2013] UKEAT 0040 – 12 – 1605
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526532

EAT Practice and Procedure : Striking-Out or Dismissal – Costs – Procedural error. At a PHR the Employment Tribunal dismissed a case and made an award of costs against the Claimant. Prior to the hearing the Claimant had written to the ET stating the he would not attend the PHR but would provide written submissions, which he did. He also asked that the PHR be heard by a three person Tribunal. An Employment Judge decided to grant that request and the Claimant was so advised, by letter. Due to an administrative error the hearing was listed for a Tribunal comprising only a legally qualified Employment Judge.
The first Judge listed recused herself and a second Judge took the case, who by coincidence was the Judge who had granted the request. No one reminded him of the request and he had no memory of it. The Claimant argued that it was a fundamental error to have the case decided by a Tribunal other than one comprising three persons. Further he argued that the reasons were insufficient to explain the decisions made. The Respondent argued that if an error was made it was not fundamental and in any event that the case was so clear that no Tribunal no matter how constituted could come to a different decision; and that the reasons were concise clear.
Held: in the circumstances the error was fundamental. Further the reasons were not sufficiently clear to show why the case was dismissed, nor were the order for costs in the particular sums made clear. The appeal is allowed and remitted to a freshly constituted Tribunal comprising three members.

Lady Stacey
[2014] UKEAT 0114 – 13 – 0304
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526526

EAT Unfair Dismissal : Constructive Dismissal – Unfair constructive unfair dismissal.
The Appellant employer argued that the Employment Tribunal had not made findings from which it could conclude that the employee had been constructively dismissed. The Respondent employee argued that the ET had made findings of fact which were not perverse and they should not be altered.
Held: the ET erred in failing to ask itself the correct question, which is whether the employee acted in such a way as to breach the implied term of the contract between employer and employee. No finding of constructive unfair dismissal should be made unless there are findings to support it, that is findings that the actions of the employer were such as to be calculated, or likely, to destroy the necessary trust and confidence between employer and employee. In this case there insufficient reasons to show that question had been asked. Further the decision made was perverse as there were internally contradictory findings.

Stacey, Lady
[2014] UKEAT 0447 – 13 – 0104
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526525

EAT Practice and Procedure : Striking-Out or Dismissal – The Employment Judge erred, on a strike out application in respect of a claim of unfair dismissal, in asking the ‘prohibited’ question identified in Polkey. He asked whether an, apparent, procedural flaw would, if corrected, have made any difference to the outcome rather than whether it made the decision fair or unfair, leaving the question of whether it would have made any difference to be considered on the issue of remedy, if the dismissal was found to be unfair on the basis of that flaw.

Wilkie J
[2014] UKEAT 0437 – 13 – 1802
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526520

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – The Employment Judge held a Pre-Hearing Review on 6 December 2012 on the question of whether the Claimant had a disability. He heard evidence and submissions. He reached a decision, namely that the Claimant was disabled, and announced that orally at the end of the hearing. He gave no reasons, orally intending, it seems, that the reasons be given in writing. The tape of the hearing was lost. The Employment Judge indicated that he could no longer give reasons as he could no longer remember part of the case and there would need to be a re-hearing of the issue as to whether the Claimant was disabled.
He then conducted the re-hearing himself on 19 June 2013. He heard evidence and submissions and reached the same conclusion as he had on the earlier occasion. In his written reasons, he stated that he had reached a firm conclusion on the issue on 6 December 2012. He also indicated that he did not need to recuse himself from the hearing on 19 June 2013 as he had not given an indication of his conclusion and the rule against the appearance of bias did not reply.
In the circumstances, a fair-minded observer, knowing the facts, would consider that there was a real possibility of bias at the hearing on 19 June 2013. The Employment Judge had announced a firm conclusion – not a provisional view – at the hearing on 6 December 2012. In those circumstances, a fair minded observer would consider that there was a real possibility that the Employment Judge could not consider the issue impartially on 19 June 2013 but would be bound to be influenced by his earlier decision.

Lewis J
[2014] UKEAT 0497 – 13 – 2003
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526523

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke – DISABILITY DISCRIMINATION ACT
Employment Tribunal – adequacy of reasons.
Reading the judgment as a whole – and allowing that much of the basis for the Tribunal’s conclusions was to be derived from the findings of fact – the Employment Tribunal had complied with the obligation upon it to ensure that it was clear as to the issues it had to determine and gave adequate reasons for the conclusions it reached in this case.

Eady QC J
[2014] UKEAT 0176 – 13 – 2403
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526524

EAT Contract of Employment : Implied Term or Variation or Construction of Term – C (a project engineer) was subject to a contract which provided that if she did not work her notice, then to the extent that there was shortfall her employer would deduct a sum equal to the salary to be paid during the shortfall from her. The ET found she did not work her notice. The employer deducted a full month’s salary from money otherwise due to her, in the reckoning of which he did not include the notice pay that would have been due had she worked. C accepted this was the effect of the clause and argued that it thus operated as a penalty. An ET found it was not, but was, rather, a genuine pre-estimate of the losses that might be incurred if at short notice a senior professional such as a project engineer had to be recruited to fill an important gap. Her appeal against this decision failed, as did a related appeal against the ET’s refusal to consider documents tendered to it by the employer after the evidence had concluded but before submissions, which might have shown that the employer in this case had begun to recruit a replacement before C resigned.
Observations made about the proper construction of a clause such as an issue here in future cases: the EAT was not itself satisfied such a clause would usually be intended to operate as both parties here accepted it did in the present case, and did not wish this case to set an unfortunate precedent for later ones.

Langstaff P J
[2014] UKEAT 0045 – 13 – 0403
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526521

EAT Practice and Procedure : Striking-Out or Dismissal – Permissible strike-out. Ezsias considered. Appellant failed to co-operate in preparing the appeal for hearing and did not attend. Appeal dismissed on its merits.

Peter Clark J
[2014] UKEAT 0585 – 12 – 0204
Bailii
England and Wales
Citing:
Cited – Ezsias v North Glamorgan NHS Trust CA 7-Mar-2007
The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT.
Held: A claim should not be struck out where, as here, there were facts . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 December 2021; Ref: scu.526527

EAT Contract of Employment : Implied Term/Variation/Construction of Term – UNLAWFUL DEDUCTION FROM WAGES – Contract of employment. Deduction from salary under ERA 1996. The Claimant argued that in terms of his contract which had incorporated a collective agreement, he was entitled to payment when on sickness absence under two clauses of the agreement, numbers 3 and 28. The Respondent argued that he was entitled only to sick pay in terms of clause 28.
Held: the Employment Tribunal dismissed the case but made an inconsistent finding on a vital matter within the reasons which resulted in a judgment which was not clear and unequivocal. That must amount to an error of law. It would be necessary to have all of the evidence before the EAT before enabling it to decide the case. Case remitted to a freshly constituted Tribunal.

Lady Stacey
[2014] UKEAT 0043 – 13 – 2201
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526519

Maurice Kaye LJ considered the observations of Elias LJ in the case of Tilson v Alstom Transport and the impact of Jafri, saying: ‘However, even within the confines of the conventional approach, the Employment Appeal Tribunal can contain its application in a number of ways. First, provided that it is intellectually honest, it can be robust rather than timorous in applying what I shall now call the Jafri approach.’

Maurice Kaye LJ
[2014] EWCA Civ 716, [2014] ICR 835
Bailii
England and Wales
Citing:
Considered – Tilson v Alstom Transport CA 19-Nov-2010
The parties disputed whether the claimant agency worker was in law the employee of the respondent.
Held: The test was whether it was necessary to infer such a contract to explain the conduct of the parties (Elias LJ). The EAT were right to . .
Cited – Jafri v Lincoln College CA 16-Apr-2014
The claimant’s complaint of unfair dismissal for making a protected disclosure had been rejected by the ET and EAT. The court was asked whether the claimant could rely upon a point not previously raised.
Held: The appeal failed. Where a court . .

Cited by:
Cited – Way v Spectrum Property Care Ltd CA 22-Apr-2015
The appellant had been dismissed after using the company email to forward an inappropriate email in breach of the company’s policies. Later he was disciplined for making an appointment in breach of the company’s procedures. He again misused the . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 December 2021; Ref: scu.526264

EAT Unfair Dismissal : Reasonableness of Dismissal – Employee refused to return to work following illness if he was to remain managed by his Divisional Officer, against whom he had unsuccessfully raised grievances. He was otherwise fit to resume. At a meeting, he said he did not wish to leave the service of USDAW and would do anything. The General Secretary said he would inquire if any alternative work was available: what was in mind was a clerical job at the Manchester Central Office. Though saying he would do so (and thereby indicating it was materially relevant to the fairness of dismissal from the Claimant’s current post) the GS did not make any such inquiry, but told C at a dismissal hearing 4 days later there was no alternative post. The ET thought the dismissal (agreed as being for SOSR) was itself within the range of reasonable responses, but said that the procedure was unfair, and held the dismissal unfair. An appeal on the basis that the ET had asked as two separate questions what was in fact one – whether the employer had acted fairly or unfairly having regard to the reason for the dismissal, due regard being had to equity and the substantial merits of the case – was rejected. Read fairly, that was what the ET was determining. It had separated consideration of the procedural aspects from whether a dismissal for the reason given was within the range of reasonable responses because that was the way in which the parties had asked it to view the issues, and this was not a reason for concluding it had impermissibly separated the two. An argument that it would have been futile to offer a clerical job in the Central Office because it would not have been accepted, and hence the ET could not permissibly have reached the finding it did, was rejected: the focus had to be on what the employer did, and this employer had actually thought it important to assure C that other job possibilities would be explored. It did not find that the employer explicitly or impliedly thought that C would not have accepted a job if one had been offered. Finally, a reasons challenge was rejected.

Langstaff P J
[2014] UKEAT 0557 – 12 – 0104
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526260

EAT Practice and Procedure : Case Management – Bias, misconduct and procedural irregularity
Review
The Claimant brought proceedings which were vigorously contested. She sought to establish that she had suffered an unfair (constructive) dismissal. The hearing was fixed over two days. On the first day the Claimant unsuccessfully sought an adjournment. The Employment Tribunal read the witness statements and pleadings before the hearing commenced.
The Employment Judge gave a Case Management ruling on the order in which witnesses should be called to accommodate a witness travelling from abroad. The Claimant strongly disagreed with the decision of the Employment Judge and left the hearing making it clear she would not return. The Employment Judge advised her that the Employment Tribunal had noted that in order to establish her case the Claimant had to show that her evidence would be accepted rather than that of the Respondent’s witnesses. She was advised that if she declined to give evidence she ran the risk of her case being dismissed in her absence. The Claimant refused to stay. The Employment Tribunal went on to consider the case in her absence and dismissed her claims. The Claimant then sought a review of the judgment and requested that the original Employment Judge should not undertake the preliminary consideration of the application of review pursuant to rule 35(3) of the Employment Tribunal Rules of Procedure on the grounds that the Employment Judge was biased. An allegation of bias was wholly without merit and the only complaint against the Employment Judge was that she had made a ruling not to the Claimant’s liking. The Employment Judge did not consider that the mechanism of review was appropriate for allegations of bias, she declined to recuse herself and refused an application for a review on the basis that no grounds for her to order the review had been made out; it was not in the interests of justice for the decision to be reviewed.
On appeal the Claimant maintained that by reason of the allegation of bias that it was not ‘practicable’ for the original Employment Judge under the application to have the decision reviewed. The Employment Appeal Tribunal held that, ‘practicable’ meant ‘feasible’ rather than inconvenient and that it was wholly appropriate and sensible for the original Employment Judge to carry out the preliminary consideration of the application as provided for by the rule.

Judge Serota QC
[2013] UKEAT 0124 – 12 – 0306
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526124

EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal – Economic technical or organisational reason
The Employment Judge did not err in holding that dismissals of transferred employees for refusing to work in a different workplace following a transfer of an undertaking were not dismissals which entailed a ‘change in the workforce’ within the meaning of the unamended Transfer of Undertakings (Protection of Employment) Regulations 2006 Regulation 7(1)(b) and (2). Berriman v Delabole Slate Ltd [1985] ICR 546, Alemo-Herron v Parkwood Leisure [2013] ICR 1116 and the Collective Redundancies and Transfer of Undertakings (Protection of Employment) Regulations 2014 considered.

Slade J
[2014] UKEAT 0397 – 13 – 1605
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526093

EAT Unfair Dismissal – Race Discrimination – In the case of the First Claimant, the Employment Tribunal had made (unchallenged) findings that the Respondent had not established a fair reason for the dismissal and had no reasonable grounds for the reason it had relied on. The Respondent’s arguments on appeal failed to engage with these conclusions, which undermined both its case on unfair dismissal but also on discrimination.
In the Second Claimant’s case, the Tribunal’s findings of fact in respect of the race discrimination claim were not susceptible to challenge and undermined the Respondent’s arguments in respect of the unfair dismissal case.
Generally, the Employment Tribunal had not erred in its approach to construction of a hypothetical comparator. Applying Ahsan v Watt [2008] IRLR 243 HL, the Tribunal had been entitled to look at the Respondent’s treatment of other white employees, albeit that they were not strict comparators, in determining how a hypothetical comparator would have been treated in like circumstances.
Both liability appeals dismissed.

Eady QC HHJ
[2014] UKEAT 0441 – 13 – 2305
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526091

EAT Unfair Dismissal – constructive dismissal
1. This is an appeal against the judgment of Employment Judge Baron sitting at London South promulgated on September 2013. By that judgement, the Employment Judge struck out the Claimant’s claim for unfair dismissal based on an alleged constructive dismissal, as having no reasonable prospect of success on the basis that the Claimant had affirmed the contract by giving seven months notice of termination following the respondent’s alleged breach, in circumstances where he was contractually obliged to give only three months notice and the reason for giving seven months notice was ‘for his own ends rather than any altruistic reason’.
2. Against that conclusion, the Claimant appeals raising a short question of law in relation to section 95 (1)(c) of the Employment Rights Act 1996; namely whether in circumstances where an employee resigns giving notice that exceeds the contractual minimum period of notice, the common law concept of affirmation has any applicability in the context of post resignation employment and if so how it is to be applied.
3. The parties are referred to as the Claimant and the Respondent as they were before the Employment Tribunal. The Respondent was represented by Mr Andrew Blake of counsel both before the Employment Tribunal and on this appeal; the Claimant by Mr Daniel Tatton Brown, of counsel. Both counsel have presented their cases clearly and concisely, and I am grateful to them both.

Simler DBE J
[2014] UKEAT 0038 – 14 – 2105
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526087

EAT Practice and Procedure : Admissibility of Evidence – RACE DISCRIMINATION: INDIRECT, COMPARISON – A black consultant whose previous complaints of race discrimination against him by the respondent Trust had been settled complained of a policy, adopted amongst others by him, designed to meet a staffing crisis in the case of such as a pandemic, which would result in consultants working at the site he did potentially, if improbably, having to cover for the work usually done by registrars whereas white consultants at a sister site would not have to do so. He named the white consultants at that site as comparators. The ET held that they were not in like circumstances, since the two sites had different features which were significant and material to the policy. It also held that the reason for adopting the policy had nothing to do with the claimant’s race. It also ruled, at the outset of the hearing, that the Claimant could not rely on some passages in his witness statement as to the substance of which there had been no advance intimation, nor admit a large bundle of documents not earlier disclosed in support of them.
Held that an appeal on the ground that the ET had approached the comparison wrongly failed: although the ET was not logically entitled to regard the differences between the sites as relevant, the conclusion as to the ‘reason why’ the policy had been adopted rendered the decision unassailable – subject only to the second ground as to the admission of evidence. As to that, the majority of the Appeal Tribunal held that although an ET had a discretion to exclude evidence which was only of marginal relevance, and to refuse to accept documents which would disproportionately overburden and significantly prolong the hearing, it was wrong to exclude this evidence in this case since it was important in proving the possible motivation of the Respondents. In their view, the ET did not go through the process of deciding or evaluating the relevance of the evidence to the Claimant’s case. This was an error of law.

Langstaff J
[2014] UKEAT 0609 – 12 – 1605
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526090

EAT Unfair Dismissal : Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
Employer appeal against finding of unfair dismissal based on no reasonable investigation in conduct case dismissal.
No substitution of Employment Tribunal’s view/perversity. Unfair dismissal appeal dismissed.
Wrongful dismissal appeal allowed. Inadequate reasons. That aspect remitted for reconsideration by same ET at remedy hearing.

Peter Clark HHJ
[2014] UKEAT 0205 – 13 – 0304
Bailii
England and Wales

Employment

Updated: 04 December 2021; Ref: scu.526085

EAT Jurisdictional Points : Worker, Employee or Neither – The Employment Judge was in error in finding the Claimant was employed under an express contract of employment as there was no consideration. He also failed to apply Tilson v Alstom Transport [2011] IRLR 169. In the absence of either an express or implied contract of employment it was also an error of law to find an implied term as to remuneration.

Birtles J
[2014] UKEAT 0293 – 13 – 3005
Bailii
England and Wales
Citing:
At CA (1) – Ajar-Tec Ltd v Stack CA 26-Apr-2012
The issue in this case is whether Mr Stack is either an employee or a worker employed by the appellant company. . .

Cited by:
At EAT – Stack v Ajar-Tec Ltd CA 5-Feb-2015
The court was asked whether the Appellant Mr Stack was at the material time either an employee or a worker employed by the Respondent company. Mr Stack has lodged claims before the Employment Tribunal for constructive unfair dismissal and . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 December 2021; Ref: scu.526086

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – Reasonableness of dismissal
The Employment Judge did not err in holding that the dismissal of the Claimant for refusing to agree to a rescheduling of her working hours was a dismissal for some other substantial reason within the meaning of section 98(1)(b) of the Employment Rights Act 1996. However the findings of fact did not support the two bases on which the Employment Judge held the dismissal to be unfair.
Appeal allowed. Case remitted to an Employment Tribunal for rehearing to consider the fairness of the dismissal, including if there is a finding of unfairness, any Polkey reduction in an award. The finding that the dismissal was for some other substantial reason for dismissal to remain in place.

Slade DBE J
[2014] UKEAT 0370 – 13 – 2802
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.526081

EAT UNFAIR DISMISSAL
The Claimant was dismissed for misconduct in relation to the employer’s email policy following an earlier final written warning for other misconduct involving breach of company policies.
At the Employment Tribunal hearing he sought to challenge the bona fides of the warning but, notwithstanding that the parties had agreed that the validity of the warning was in issue and written evidence had been served on both sides relating to the issue and the relevant witnesses were available to be cross-examined, the Employment Judge excluded evidence of the background to the warning. He went on to find that the dismissal was fair in the light of the warning.
The EAT decided that the EJ was wrong to exclude this evidence and that it would have been better if he had heard it and made findings on it. However, the EAT dismissed the Claimant’s appeal on the basis that in all the circumstances it would have made no difference to the outcome because: (1) the warning required the Claimant to read and abide by company policies and he had indicated that he understood it and had not appealed it; (2) during the appeal against his dismissal he had for the first time challenged the warning and his points had been investigated and rejected; it was agreed before the ET that no complaint was being made about the conduct of the appeal; (3) the manager who had issued the warning was not involved in the disciplinary hearing leading to the dismissal or the appeal therefrom.

Shanks HHJ
[2014] UKEAT 0181 – 13 – 0603
Bailii
England and Wales
Cited by:
Cited – Way v Spectrum Property Care Ltd CA 22-Apr-2015
The appellant had been dismissed after using the company email to forward an inappropriate email in breach of the company’s policies. Later he was disciplined for making an appointment in breach of the company’s procedures. He again misused the . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 December 2021; Ref: scu.526084

EAT Unfair Dismissal- – Employment Judge considering dismissal process as a whole; holding that the decision was fair notwithstanding some of the reasons initially relied on did not survive the appeal stage.
No error of law. Applying Taylor v OCS Group Ltd [2006] IRLR 613 EAT, the EJ had adopted the correct approach.
There could be no challenge to the EJ’s case management decision to exclude certain evidence and the decision reached on contributory fault was not susceptible to appeal on the basis of perversity.

Judge Eady QC
[2014] UKEAT 0410 – 13 – 2702
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.526080

EAT Unfair Dismissal – Reason for dismissal and fairness. Employment Tribunal considering question of fairness in respect of a different reason to that found to have been the reason for dismissal. That amounted to an error of law and it could not be said that the conclusion that the dismissal was unfair was plainly and unarguably right in these circumstances. Matter remitted to the same ET, if still practicable, for further consideration of the question of fairness in the light of the reason for the dismissal as found by the ET.

Eady QC J
[2014] UKEAT 0443 – 13 – 1003
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.526083

EAT Redundancy : Definition – An Employment Tribunal held that the Claimant had been unfairly dismissed, and less favourably treated, because of her age. She had occupied a senior post. The department in which she worked was restructured. The ET held that the loss of the Claimant’s post and her dismissal in consequence was not by reason of redundancy, but a dismissal for some other substantial reason, and it was entitled to do so. It found that it was an act of age discrimination not to appoint her to one of the new posts in the restructured organisation, and held her unfairly dismissed. On appeal, it was held that the ET was entitled to conclude that the dismissal was for SOSR, but since it had accepted that the appointment to the available post depended on interview, and that the person (a man) appointed to it had performed better than the Claimant, and for that reason had apparently rejected a claim of discrimination on the grounds of sex, there was no adequate basis on the facts which the ET had found for concluding that there had been age discrimination. The assessment of the fairness of the dismissal was flawed, but that issue would be remitted to an ET for determination.

Langstaff J P
[2014] UKEAT 0403 – 13 – 1403
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.526082

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Employment Tribunal failed to direct itself correctly on the approach it was to adopt when determining a dismissal for misconduct and the ET misapplied the correct test in material respects. The EAT refused to take the decision itself following Morgan v Electrolux Ltd (1991) ICR 369. The EAT remitted the case to a differently constituted Tribunal for determination.

Supperstone
[2014] UKEAT 0417 – 13 – 0702
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525180

EAT Unfair Dismissal : Reasonableness of Dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Tribunal found that the Claimant had been wrongfully but fairly dismissed for misconduct.
The ET failed to give any real reasons for its finding that the Respondent’s appeal panel had had reasonable grounds for its findings as to misconduct. Particularly in the light of the finding of wrongful dismissal, the ET ought to have given fuller reasons and addressed the points made by the Claimant as to the reasonableness of the panel’s findings of misconduct.
Appeal allowed and the matter remitted to the ET to consider whether the appeal panel had reasonable grounds for its findings as to misconduct.

Shanks HHJ
[2014] UKEAT 0296 – 13 – 1002
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525185

EAT Unfair Dismissal : Polkey Deduction – An Employment Tribunal approached Polkey by determining what the course of future events would be, rather than asking what the chances were. It had not set out the approach, nor had it asked what might have happened if unfair treatment in a number of respects identified in an earlier liability judgment had been remedied. A decision of 100% certainty that there would have been a fair dismissal, on the grounds of the employer’s belief as to the Claimant’s immigration status, when the evidence was both the employer and employee wished to continue the latter’s employment, and that only a matter of days after dismissal his entitlement in immigration law to work was recognised by the Home Office, was a surprising one since it allowed for no chance the result might have been otherwise.

Langstaff P J
[2014] UKEAT 0281 – 13 – 1802
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525179

EAT Practice and Procedure : Application for review of judgment in default
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004
ET1 sent to Respondent by Employment Tribunal but not received. Application for review initially failing to comply with requirements of r.33(2) ET Rules 2004. Later application/amendment of original application in correct form. Application still made out of time.
Employment Judge considering no discretion given failure to comply with r.33(2). Failing to consider second application/application as amended.
Wrongful fetter on discretion.
As unable to say how EJ would have exercised discretion, matter remitted to ET for re-hearing of application.

Eady QC HHJ
[2014] UKEAT 0423 – 13 – 2802
Bailii
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525178

Victimisation Discrimination : Whistleblowing – Protected disclosure
The Appellant was a policeman who was subjected to a series of detriments and was ultimately dismissed by his employer. During the course of his employment, the Appellant made a number of protected disclosures as defined in section 43B of the Employment Rights Act 1996. He contended that the fact that he had made those protected disclosures influenced the employer in acting as it did and was the reason, or the principal reason, for his dismissal. The tribunal concluded that the employer acted as it did because of the Appellant’s long term absence on sickness grounds together with the manner in which the Appellant had pursued his complaints. The Appellant would not accept any answer save that which he sought and, if he was not satisfied with the action taken following a complaint, he would pursue the matter to ensure that his view prevailed. As a result, the employer was having to devote a great deal of management time to responding to the Appellant’s correspondence and complaints and the Appellant became completely unmanageable. The Employment Appeal Tribunal held that the tribunal was entitled to treat those particular factors as separable from the fact that the Appellant had made protected disclosures and to decide that those factors were the reason why the employer acted as it did. Further, the Employment Appeal Tribunal held that tribunal had not approached the matter on the basis that, as the Appellant had made a number of protected disclosures, there came a time when subsequent disclosures of information could not qualify as protected disclosures; the tribunal had adopted a correct approach.

Lewis J
[2014] UKEAT 0436 – 13 – 1604, [2014] ICR D23
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525197

A person cannot be an employee of a body of partners of which he is also a member.

(1904) 6 F 496
Scotland
Cited by:
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 December 2021; Ref: scu.526001

It is not possible for an individual to be an employee of himself and his of co-partners.

[1989] IRLR 392
England and Wales
Cited by:
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 December 2021; Ref: scu.526000

The claimant’s complaint of unfair dismissal for making a protected disclosure had been rejected by the ET and EAT. The court was asked whether the claimant could rely upon a point not previously raised.
Held: The appeal failed. Where a court identified an error of law in a decision it must remit the case unless it felt able to decide without making any judgment as to the facts or the merit of the case. Where more than one outcome after correction of the the tribunal’s error of law, the decision must be left to the Tribunal.
Laws LJ said: ‘I must confess with great respect to some difficulty with the ‘plainly and unarguably right’ test elaborated in Dobie. It is not the task of the EAT to decide what result is ‘right’ on the merits. That decision is for the ET, the industrial jury. The EAT’s function is (and is only) to see that the ET’s decisions are lawfully made. If therefore the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal.’
Underhill LJ said: ‘If, once the ET’s error of law is corrected, more than one outcome is possible, the authorities are clear that it must be left to the ET to decide what that outcome should be, however well-placed the EAT may be to take the decision itself.’

Laws, Underhill LJJ, Sir Timothy Lloyd
[2014] EWCA Civ 449, [2014] WLR(D) 178
Bailii, WLRD
England and Wales
Citing:
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Appeal from – Jafri v Secretary of State for Justice and Another EAT 20-Feb-2013
jafri_ssjEAT2013
EAT Unfair Dismissal : Reasonableness of Dismissal
Unfair dismissal – attitude of third party making continued employment of employee impossible – whether tribunal considered whether employer took into . .

Cited by:
Cited – Doughty v The Secretary of State for Work and Pensions EAT 22-May-2014
EAT Practice and Procedure : Amendment – The Employment Judge refused an application for permission to amend the ET1 to claim victimisation. She approached the application on the footing that there was no clear . .
Cited – Way v Spectrum Property Care Ltd CA 22-Apr-2015
The appellant had been dismissed after using the company email to forward an inappropriate email in breach of the company’s policies. Later he was disciplined for making an appointment in breach of the company’s procedures. He again misused the . .
Cited – Burrell v Micheldever Tyre Services Ltd CA 23-May-2014
Maurice Kaye LJ considered the observations of Elias LJ in the case of Tilson v Alstom Transport and the impact of Jafri, saying: ‘However, even within the confines of the conventional approach, the Employment Appeal Tribunal can contain its . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 December 2021; Ref: scu.523829

[2014] EWCA Civ 491
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523824

EAT Practice and Procedure : Case Management – At a case management discussion in July 2011 the Employment Tribunal had said that if the Respondent disputed disability there should be a joint medical expert and fixed the hearing for January 2012. Because of the Claimant’s delays that hearing had to be adjourned and a new timetable fixed in December 2011. In February 2012 the Respondents were in a position to say they disputed disability but they also said they no longer considered that a medical expert was necessary, a position which they maintained up to the substantive hearing. Notwithstanding this the Respondent co-operated to an extent in seeking and naming some suitable experts but the Claimant took no active steps to push matters forward. The hearing had been re-fixed for June 2012, but that hearing was also adjourned due to the Claimant’s ill health. The hearing was re-fixed for February 2013. Shortly before the hearing the Claimant applied to strike out the defence on account of the Respondent’s failure to jointly instruct an expert; the ET refused the application. At the substantive hearing the Claimant applied for a further adjournment so that he could obtain expert medical evidence.
Having looked at the whole correspondence the ET agreed to the adjournment but only on condition that the Claimant make a contribution to the Respondent’s costs of andpound;1,200, at which point the Claimant withdrew his application for an adjournment.
On the Claimant’s appeal against the decision to make the adjournment conditional the EAT decided that the ET’s decision was a perfectly reasonable case management decision well justified in the light of the whole history and the strong element of fault on the Claimant’s side and dismissed the appeal.

Shanks J
[2014] UKEAT 0433 – 13 – 2402
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523670

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Compensation
Contributory fault
The Employment Judge erred in substituting his view of the fairness of the Claimant’s dismissal for gross misconduct in entering a Class C sewer without breathing apparatus contrary to an instruction rather than considering whether the conclusion on sanction of dismissal was within the range of reasonable responses of the reasonable employer in the circumstances. The conclusion of the EJ that the dismissal of the Claimant was unfair was based on erroneous views of the facts as found by him. Further, the alternative finding of unfair dismissal for difference in treatment of another employee was also reached on the basis of an erroneous view of the findings of fact and was unsustainable. Finding of unfair dismissal set aside and decision that the Claimant had been fairly dismissed substituted. The high hurdle in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 was reached in this case.
If the appeal on liability had not been allowed:
(a) the deduction for contributory fault was based on an erroneous view of the facts and would be increased to 50%. Hollier v Plysu Ltd [1983] IRLR 260 applied;
(b) appeal from withdrawal factor of 20% from the pension scheme dismissed;
(c) appeal from compensation in respect of a lump sum payable under the pension scheme dismissed.
Cross-appeal from reduction in awards for contributory fault dismissed.

Slade DBE J
[2013] UKEAT 0011 – 13 – 0904
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523673

EAT Unfair Dismissal : Reasonableness of Dismissal – Employment Tribunal erred in its approach to the question of reasonableness of this conduct dismissal. Employer appeal allowed and that issue is remitted to the same ET for re-consideration.

Peter Clark J
[2014] UKEAT 0379 – 13 – 0404
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523671