EAT Sex Discrimination : Burden of Proof – UNLAWFUL DEDUCTION FROM WAGES
The Employment Tribunal found that the Appellant was unfairly dismissed and discriminated against by reason of her sex. The Appellant’s claims for unlawful deduction of wages failed. The Appellant and the Respondent both appealed.
The EAT dismissed the Respondent’s appeal that the ET had erred (1) in its approach to the burden of proof when considering the complaints of discrimination: Hewage v Grampian Health Board [2012] ICR 1054 applied; and (2) in finding that deductions from the Appellant’s wages were made in breach of contract: Sim v Rotherham MBC [1987] ICH 216 applied. The Respondent failed to show the reason why there was reduced or no work and that it involved a breach of contract by the Appellant. However ET erred in failing to restrict its decision on harassment to the matters identified in the Agreed List of Issues.
Appellant’s appeal against unlawful deduction of wages from May 2007 succeeded and issue of quantum remitted to the ET for determination.

Supperstone J
[2014] UKEAT 0222 – 11 – 0804
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523584

EAT Transfer of Undertakings : Transfer
An appeal by the Appellant companies against the Employment Tribunal’s decision that there was a TUPE transfer under Regulation 3(1)(a) and that individual Claimants had locus and were entitled to bring protective award claims in their own names.
No error of law was found to be disclosed in the Tribunal’s reasoning or conclusions on either transfer or locus and the appeal was dismissed.

Cox DBE J
[2014] UKEAT 0127 – 13 – 0404
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523457

EAT Practice and Procedure : Striking-Out/Dismissal – Withdrawal
The issue is whether the application for dismissal made to the Employment Tribunal following the Appellant’s withdrawal of their earlier claims for race discrimination had to be in writing for the purposes of rule 25 of Schedule 1 to the 2004 Regulations and whether the ET erred in failing to appreciate this. The EAT, following the decision in Drysdale v Dept. Transport (The Maritime and Coastguard Agency) (UKEAT/0171/12, 13 February 2013), found that the ET correctly concluded that there was no jurisdiction to hear the complaints of race discrimination. There is no valid purpose in requiring a written application to the ET office when the parties are present at a hearing and the matter can be addressed there and then. To require a written application, with the possibility that a further hearing may then be necessary, would be inimical to the overriding objective, which includes dealing with cases expeditiously and saving expense. The ET may deal with the question of dismissal on an oral application made at a hearing when a claim has been withdrawn. Accordingly the appeal failed.

Supperstone J
[2014] UKEAT 0365 – 13 – 0402
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523454

EAT Victimisation Discrimination : Detriment – Other forms of victimisation
The appeal is against the Employment Tribunal’s findings that the detriments of suspension and referral to a disciplinary hearing were not on the grounds of the Claimant’s protected act.
The appeal is dismissed; the Employment Tribunal’s Judgment is to be read in its entirety; the conclusions on these issues were sufficiently reasoned and properly open to the Employment Tribunal given its findings of fact.

Eady QC J
[2014] UKEAT 0226 – 13 – 0302
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523455

EAT Unfair Dismissal – (1) Whether the Employment Tribunal misapplied the Polkey principle.
Applying Software 2000 Ltd v Andrews and Ors [2007] ICR 825, concluded Employment Tribunal’s use of the language of probability rather than chance disclosed a possible error of approach. Moreover, the failure to make any Polkey reduction was puzzling given the ET’s finding of 50% contributory fault on the Claimant’s part and the reasons failed to address this and the fact of the final written warning to which the Claimant remained subject at the time of the dismissal
Appeal allowed on this point and the Polkey issue remitted to the same ET.
(2) Whether the Employment Tribunal erred in failing to apply the 50% reduction in respect of the Claimant’s contributory conduct to all elements of the award made.
Allowing the appeal on this ground also:
The Tribunal approach to the notice pay award and the compensation for the employer’s recoupment of training costs disclosed an error in that these were treated as breaches of contract, when no such claim was before the ET. There was simply no explanation for the failure to apply the reduction to the award for loss of statutory rights.
In any event, agreeing with the Respondent, the operation of section 123(6) ERA did not permit the differential treatment of different elements of the compensatory award in this regard: the Tribunal’s discretion went to the decision to make any reduction for contributory fault and to the percentage of that reduction, not to its subsequent application.
The Tribunal’s Judgment set aside and the appropriate reduction made to each of these elements of the award.

Eady QC
[2014] UKEAT 0105 – 13 – 3101
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523453

EAT Contract of Employment : Damages for Breach of Contract – UNFAIR DISMISSAL – There were two issues before the Employment Tribunal: whether the Claimant had been unfairly dismissed, and whether he had broken his contract with the Respondent so that the Respondent could succeed on a contractual claim for its loss. He was genuinely thought by the Respondent, on reasonable grounds, to have diverted the Respondent’s property and labour when that was used to build a porch for another employee without the Respondent’s knowledge and permission, and, having chosen not to participate in a disciplinary hearing, was held dismissed by a fair process after reasonable investigation. The Employment Tribunal then concluded, (without acknowledging that a different test applied, i.e that it had itself to decide if the Claimant had actually done what was alleged, rather than merely asked what the Respondent had reasonably thought he had) that the Claimant had broken his contract. The wrong test was in fact applied; there was insufficient evidence of breach and the appeal against the contractual decision was allowed.

Langstaff P J
[2014] UKEAT 0199 – 13 – 2801
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523396

EAT Age Discrimination – JURISDICTIONAL POINTS – Extension of time: just and equitable
The Employment Tribunal dismissed the Claimant’s age discrimination claim on the basis that it was time-barred and that it was not just and equitable to extend time.
On appeal it was held that no error of law was disclosed in the Tribunal’s reasoning and the appeal was dismissed.

Cox J
[2014] UKEAT 0390 – 13 – 2301
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523362

EAT Practice and Procedure : Costs – Costs orders were made against both the C and her rep following dismissal of her claims. Appeals were brought against both orders. Both appeals allowed and costs applications remitted to same ET.
On order against C, ET had not considered whether an order was ‘appropriate’ or given C an opportunity to put forward evidence and representations on her means.
On order against her rep, ET had found him negligent in failing to advise the claims be abandoned on the basis of a waiver of privilege by C and his failure to present evidence of advice given but no such waiver was clear and the rep had not been invited to present evidence himself; further, the ET made no finding as to the effect of any such negligence; and the ET found that the claim was brought on the initiative of the rep on the same flawed basis as their finding of negligence.

Shanks J
[2014] UKEAT 0425 – 13 – 3103
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523368

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – Reasonableness of dismissal
Compensation
Contributory fault
The Employment Judge substituted his decision for that of the employer in deciding whether dismissal for refusal to obey a specific instruction against a background of warnings for similar conduct fell outside the band of reasonable responses of a reasonable employer. London Ambulance Service NHS Trust v Small [2009] IRLR 567 and Davies v Sandwell MBC [2013] IRLR 374 applied. Appeal allowed.

Birtles J
[2014] UKEAT 0623 – 12 – 3103
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523366

EAT Victimisation Discrimination : Whistleblowing – Detriment

Serota QC J
[2014] UKEAT 0449 – 12 – 2703
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523365

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal. The Appellant was the employer of both Respondents. The Appellant dismissed both employees, arguing that they had committed gross misconduct in their treatment of service users in their care. The Employment Tribunal found that the dismissals were unfair. The Appellant argued that the Employment Tribunal had substituted its own view for that of the employer. Held, the Employment Tribunal had come to a decision to which it was entitled to come and had therefore not erred in law. While the ET appeared to have come near to substitution, it had not done so. Appeal dismissed.

Lady Stacey
[2013] UKEAT 0513 – 12 – 2503
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523169

EAT Unfair Dismissal : Reasonableness of Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Redundancy dismissals found by Employment Tribunal to be unfair, subject to Polkey deductions.
No procedural unfairness, nor impermissible substitution of view by ET. Employer’s liability appeal dismissed.

Peter Clark J
[2014] UKEAT 0358 – 13 – 2503
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523166

EAT Unfair Dismissal – Importance of clearly separating out decision on reason for dismissal and the fairness of the dismissal for that reason. Here the Employment Tribunal had fallen into error in eliding the two questions.
Further, the Employment Tribunal had wrongly fallen into the ‘substitution mindset’ identified in London Ambulance Services NHS Trust v Small [2009] EWCA Civ 220.
Appeal allowed on these bases.
Obiter: before making an uplift in compensation for a breach of the ACAS Code, the Employment Tribunal first needed to find that the failure to comply had been ‘unreasonable’, s. 207A(2)(c) TULR(C)A 1992.

Eady QC
[2014] UKEAT 0165 – 13 – 1701
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523165

EAT Jurisdictional Points – Immunity
A Police Misconduct Board before whom the Claimant Police Officer admitted misconduct decided that she should be dismissed from the force. She had no right to claim for unfair dismissal under the Employment Rights Act 1996, and a claim to that effect was struck out. But she also claimed that continuing to conduct proceedings against her, and failing to make appropriate adjustments in the light of her disability (PTSD), and deciding to dismiss her constituted acts of discrimination related to her disability, and harassment of her because of it. The Employment Tribunal upheld a claim that allegations of this sort could not be pursued, since the Board was entitled to judicial immunity. On appeal, this decision was upheld on the basis upon which the Judge had reached it. The principles in Heath v Commisioner of Police of the Metropolis applied. Although the decision in Lake v British Transport Police did not turn merely on statutory interpretation and the principles expressed were not limited to the very particular facts of that case, this did not have the result that a claim involving allegations of discrimination arising entirely out of the conduct of the Board could proceed.

Langstaff J
[2014] UKEAT 0449 – 13 – 2503
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523167

peackockEAT0314

EAT Contract of Employment – DAMAGES FOR BREACH OF CONTRACT
IMPLIED TERM/VARIATION/CONSTRUCTION OF TERM; HOLIDAY PAY
From evidence before an Employment Judge showing that the consistent practice of the Respondent employer in a number of redundancies between the early 1980s and 2002 had been to make redundancy payments based on statutory terms but without a cap on either years of service or the amount of a weekly wage, and some evidence (though generalised) as to the position between 2002 and 2006, the Judge held that a contractual term that redundancy payments would be made without either cap, but otherwise on statutory terms could be inferred. The evidence as to the position between 2006 and 2012 (when the redundancies giving rise to the claims arose) was not so clear cut, and could be said to show an inconsistency of practice. An argument that the employees concerned were not entitled to enhanced redundancy payments (on statutory terms, without cap) was rejected by the Judge. On appeal his decision was upheld: by 2006 he thought a term to be agreed. Nothing since then showed that that term had lawfully been varied. On the evidence, the Judge was entitled to conclude as he did.
A cross-appeal relying on apparent inconsistency of result as between the claims of two Claimants said to be in identical circumstances, was rejected, since one could and did prove her entitlement to holiday pay to the Judge’s satisfaction, whereas the evidence of the other was vague and uncertain and thought by him to be insufficient.

Langstaff J
[2014] UKEAT 0315 – 13 – 2503
Bailii
England and Wales

Employment

Updated: 02 December 2021; Ref: scu.523168

Lord Johnston
ScotC
Scotland

Employment

Updated: 02 December 2021; Ref: scu.252573

[2006] ScotCS CSIH – 21
Bailii
Scotland

Employment

Updated: 02 December 2021; Ref: scu.240073

EAT Transfer of Undertakings : Transfer – The Employment Judge did not err in holding that a hope and wish that following a service provision change activities would be carried out by a transferee in connection with a task of short term duration was not an intention that they would be so carried out. Accordingly the Employment Judge did not err in holding that the exception in Transfer of Undertakings (Protection of Employment) Regulations 2006 Regulation 3(3)(a)(ii) did not apply to exclude the transfer of activities from the scope of TUPE.
The Employment Judge erred in holding that a Claimant who was prohibited from carrying out work with a client, X, was assigned to the group of employees working with X which group was subject to the service provision change. Fairhurst Ward Abbotts Ltd v Botes Building and others [2003] UKEAT/1007/00/DA and [2004] IRLR 304 and United Guarding Services Ltd v St James Security Group Ltd and another [2004] UKEAT/0770/03/RN considered. Decision that the Claimant was not so assigned substituted. Accordingly the appeals in relation to Claimants 1 to 6 were dismissed and that in relation to Claimant 7 allowed.

Slade J DBE
[2014] UKEAT 0336 – 13 – 1303
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006 3(3)(a)(ii)
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522643

EAT Harassment : JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Employment Tribunal failed to consider the Respondent’s time point taken in the claim of racial harassment. The Respondent’s appeal is allowed.
There was a misdirection as to the test for harassment in the sexual harassment claim. The Claimant’s cross-appeal is allowed.
The case is remitted to the same Employment Tribunal for re-consideration

Peter Clark J
[2014] UKEAT 0182 – 13 – 3101
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522637

EAT Unfair Dismissal : Reasonableness of Dismissal – Taken as a whole the Employment Tribunal’s Judgment contained enough material to suggest that after starting out well by directing themselves in terms of the BHS v Burchell case, the Employment Tribunal has slipped into ‘the substitution mindset’. Large parts of the Judgment consist of assertion without any explanation as to how the conclusions have been arrived at. The case was remitted to a differently constituted Employment Tribunal for a complete re-hearing.

Judge Hand QC
[2014] UKEAT 0505 – 12 – 1601
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522639

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke – The Claimant worked as a part-time nurse from 1982 to 2010. She claimed that she was entitled to pension rights or compensation for the lack of those rights in respect of 3 periods, 1982 to 1988, 1988 to 1991 and 1991 to 2010.
Her claim for the first period had already been dealt with. The Employment Tribunal found in her favour as to the second period and made a declaration. Her appeal based on the inadequacy of the declaration made by the ET as to her rights in respect of that period was resolved by agreement, on the basis of an explanation by the EAT, at paras 11 to 13 of the judgment, of the meaning and effect of the ET’s declaration.
For the third period, the Claimant claimed compensation for breach by the employers of the implied term, derived from Scally (1991 IRLR 525), that they should take reasonable steps to draw her attention to her entitlement under the NHS pension scheme. The issue was whether such reasonable steps had been taken; the Tribunal resolved that issue in favour of the employers.
Held on appeal that the Tribunal had reached a factual decision on the question of the reasonableness of the steps taken by the employers to inform their staff of their pension rights which was open to them and which was not perverse. Their reference to the sending of information by leaflet to all staff was intended as a statement that it was sent to both part-time and full-time staff and not that it was successfully sent to each and everyone of the 500 plus staff; the Tribunal had not lost sight of the undisputed evidence that a very small (about 15) number of part-time staff had complained that they had not received the leaflet. No error of law was made out.

Jeffrey Burke QC
[2014] UKEAT 0304 – 13 – 1203
Bailii
England and Wales
Citing:
Cited – Scally v Southern Health and Social Services Board HL 1991
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 December 2021; Ref: scu.522641

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal. Whether Employment Tribunal adopted the correct approach in a case where the potential consequences for the employee were sufficiently grave that this was a relevant circumstance for the purpose of s.98(4) Employment Rights Act 1996 and warranted a heightened assessment of the Respondent’s investigation and decision, see A v B [2003] IRLR 405, EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, CA.
Held: notwithstanding the ET’s failure to make express reference to the Roldan line of authorities, it was entitled to reach the view that it had. The evidence taken into account by the Respondent was not dependent upon the word of one witness and the investigation and decision taken withstood the more stringent assessment required in such cases.

Eady QC J
[2014] UKEAT 0292 – 13 – 2003
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522642

EAT Sex Discrimination : Other Losses – UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Compensation
The Employment Tribunal had erred by not considering whether the psychiatric illness, which resulted in the loss in this case, had divisible causes and whether, if it did, the award fell to be apportioned. In concluding that there had been a failure to mitigate commencing three years after the date of dismissal the Employment Tribunal had failed to give any comprehensible account as to why that date had been chosen. Both of these matters raised on the Employer’s appeal were remitted for further consideration by the same Employment Tribunal on the evidence already heard and the facts already found
On the cross-appeal mathematical errors of calculation in the judgment were remitted to the Employment Tribunal for reconsideration, but although the cross-appeal was also allowed in relation to a decision made by the Employment Tribunal wrongly limiting the scope of the cross-examination of the Employer’s psychiatric expert witness, no further order was made because the terms of the remission in relation to the appeal rendered the point academic.

Judge Hand QC
[2014] UKEAT 0243 – 13 – 1301
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522636

ECJ Request for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Concept of ’employment conditions’ – Notice period for the termination of a fixed-term employment contract – Difference in treatment between workers on contracts of indefinite duration

C-38/13, [2014] EUECJ C-38/13
Bailii
Directive 1999/70/EC
European

Employment

Updated: 01 December 2021; Ref: scu.522489

ECJ Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Universities – Associate lecturers – Successive fixed-term employment contracts – Clause 5(1) – Measures to prevent the abusive use of fixed-term contracts – Concept of ‘objective reasons’ justifying such contracts – Clause 3 – Concept of ’employment contract of indefinite duration’- Penalties – Right to compensation – Difference in treatment between permanent workers

C.G. Fernlund, P
C-190/13, [2014] EUECJ C-190/13
Bailii
Directive 1999/70/EC
European

Employment

Updated: 01 December 2021; Ref: scu.522488

EAT Unfair Dismissal : Polkey Deduction – The Appellant employed the Respondent as course manager and head green keeper until May 2012. The Respondent was suspended by the Appellant on 8 May 2012. Disciplinary procedure followed including a disciplinary hearing and an appeal. On 3 July 2012 the Respondent was told that his appeal had not succeeded. The Respondent lodged a claim of unfair dismissal which was successful. The Employment Tribunal found that no reduction should be made for the chance that the Respondent might have been dismissed fairly (Polkey). It also found that the Respondent had contributed to his own dismissal and that it would be just and equitable to make a deduction of 33% from his compensatory award. The Appellant argued that a Polkey reduction should have been made and that the deduction in respect of contribution was too low.
Held: the ET explained why it made no reduction under Polkey and did not err in law. The matter of the percentage of reduction in respect of contribution was a matter for the Tribunal at first instance and was adequately explained by the judgment. Appeal dismissed.

Lady Stacey
[2013] UKEAT 0033 – 13 – 1012
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522372

EAT Practice and Procedure : Striking-Out or Dismissal – Employment Judge was wrong to dismiss claim in accordance with earlier order following settlement at court; but that outcome was plainly and unarguably correct given that the Claimant had then withdrawn his claim under ET r.25 (2004 Rules).
Claimant’s appeal dismissed.

Peter Clark J
[2013] UKEAT 0576 – 12 – 1712
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522371

EAT Redundancy : Collective Consultation and Information – The Appellant is a local authority which was contemplating redundancies of staff and also transfers of some employees to third parties. The Employment Tribunal found that it had breached the consultation and information requirements in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006 No. 246). It went on to make a protective award under the 1992 Act and an award of compensation under the 2006 Regulations. In calculating the periods for which those awards should be made it took as a starting point the maximum that is available in law and worked down from that.
Held (1) The Tribunal had misdirected itself in law because the starting point of the maximum was, in accordance with Court of Appeal and EAT authority, only to be used where the employer had not engaged in any consultation at all. Those were not the circumstances of the present case. The case would therefore be remitted to the same Tribunal, which was familiar with the evidence, having conducted a two day hearing, to reconsider its decision in accordance with the judgment of the Appeal Tribunal. (2) The Tribunal had also erred in law in failing to make a declaration that the Second Respondent (the transferee in one case) was jointly and severally liable for breach of the 2006 Regulations under regulation 15(9). A declaration to that effect would therefore be made by the Appeal Tribunal. (3) The Second Respondent’s cross-appeal would be dismissed, as any question of apportionment as between that Respondent and the Appellant was a matter for the ordinary courts and not for the Employment Tribunal.

Singh J
[2013] UKEAT 0191 – 13 – 1912
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006 13
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522369

EAT Contract of Employment : Sick Pay and Holiday Pay – This is a case in which it is said there was an insufficiency of evidence. The Claimant was a construction worker, who claimed holiday pay. He said that he would have taken holidays, but could not tell the Employment Tribunal exactly which holidays he had taken. He said that the sites he had worked on were sometimes closed due to bad weather or perhaps other reasons. The Employment Judge made an order giving payment for Bank Holidays but declined to guess as to the rest of the holidays.
The second matter in the case relates to consequential loss, and it is said that submissions were made, to put it at its broadest, about consequential loss but that the Employment Judge did not deal with the matter, although the parties were prepared and, on one view at least, the paperwork raised the matter. While I cannot resolve any dispute of fact between the Claimant’s representatives on the one hand and the Employment Judge on the other, I do hold that I should err on the side of caution and if there is any doubt that the Claimant was afforded a fair trial in the sense of having what he wanted to have put before the Employment Judge put before him, then I should err on the side of caution and allow the Claimant to have that part of his claim heard.
I have heard the parties on it today and I have done that because it seems to me to be in the interest of justice to do so.

Lady Stacey
[2013] UKEAT 0325 – 13 – 0512
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522373

EAT Practice and Procedure : Application/Claim – Amendment
The Claimant made claims in respect of disability. In her forms ET1 she stated that she suffered from stress incontinence following a prolapse. She stated that the consequence of the incontinence was that she could not control her bodily functions which gave rise to comment from her colleagues and made it difficult for her to work in an open-plan office. She claimed that she became anxious and stressed and suffered from insomnia. At a Pre-Hearing Review to determine whether or not she was disabled it became apparent that the Respondents expected evidence to be led on her physical condition only. She sought to amend to include stress and anxiety and insomnia. The Employment Judge allowed her amendment to the extent of including insomnia only. She appealed. Held that the case should be remitted to the Employment Tribunal for a PHR on all of the Claimant’s claims including that she suffered from stress and anxiety as a result of the underlying condition of stress incontinence.

Lady Stacey
[2013] UKEAT 0445 – 13 – 2910
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522351

EAT Unfair Dismissal : Polkey Deduction – The dismissal of a bus driver for using foul language, in front of the schoolchildren he was driving, towards a female passenger was held unfair because the proprietor of the bus undertaking had summarily dismissed the Claimant without an adequate hearing. Four weeks loss of wages was awarded as compensation for future loss, since the Employment Tribunal regarded it as 100% likely there would then have been a fair dismissal. The Employment Judge rejected evidence from other passengers relating to an earlier incident as irrelevant. The Respondent appealed arguing she should not have done so and that the assessment of Polkey losses should have taken it into account.
Held: the appeal was misconceived. The focus on a claim of unfair dismissal is on the employer’s reasoning and behaviour at the time of dismissal: the complaints from the other passengers first surfaced months later. Polkey involves an assessment of the chances of future dismissal, which involves the question whether there may be a fair dismissal and, if so, when. Here the EJ had assessed four weeks: within that period nothing was known of the later complaints, so they could make no difference to the result.
Observations made about the proper approach to ‘Polkey’ assessments.

Langstaff P J
[2013] UKEAT 0040 – 13 – 2410
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522355

EAT Unfair Dismissal : Reasonableness of Dismissal – The Appellant contended that the EAT should lay down general guidance to the effect that an appeal panel decision must be followed by an employer in the absence of exceptional circumstances. He also contended that, if the Respondent was entitled not to follow the decision of the appeal panel in this case, he had not had an effective appeal hearing.
Held, the EAT would not place a gloss on the statutory test of reasonableness in s.98(4) of the Employment Rights Act 1996. The Appellant had not been denied an effective appeal hearing. The Employment Tribunal was entitled to reach that conclusion and the conclusion overall that the Appellant’s dismissal had been reasonable. There was no error of law in that conclusion.

Singh J
[2013] UKEAT 0311 – 13 – 1112
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522368

EAT Unlawful Deduction From Wages – Construction of increment and pay protection provisions of the National Pay Scale for NHS doctors, (NHS Hospital, Medical and Dental Staff and Doctors Public Health, Medicine and the Community Health Service England and Wales terms and conditions of service (‘TCS’)).
Application for costs – grounds under r 34(a) EAT Rules 1993 not made out.

Eady QC
[2013] UKEAT 0369 – 13 – 1212
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522367

EAT Transfer of Undertakings : Insolvency – Haulage company B was in severe financial difficulty HMCR had issued a winding-up petition. It ceased to trade on a Friday; on the following Monday the Appellants started to perform B’s major contracts, using B’s ex-employees, save for some who did not wish to accept lower terms as offered by the Appellant. Before B closed, a firm of insolvency practitioners were at B’s premises at B’s invitation. The Tribunal found that there had been a transfer of undertakings from B to the Appellant unless B was ‘under the supervision of an insolvency practitioner within Reg. 8(7) of TUPE 2006, in which case Regs 4 and 7 of TUPE did not apply and the Appellant was not required to take on B’s employees on the same terms. The Tribunal found that the insolvency practitioners were on site only to advise, had never been appointed to act and B was not under their supervision.
Held on appeal that the issue was not one of pure fact and that there needed to be a clear line; Slater v Secretary of State for Industry (2007 IRLR 928) and Key2Law v De Antiquis (2012 URLR 212) followed; they established that an appointment (formal or informal) was necessary before there could be said to be supervision by an insolvency practitioner; in the present case there had been no such appointment. Appeal dismissed.

Jeffrey Burke QC
[2013] UKEAT 0249 – 13 – 1610
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522357

EAT Unfair Dismissal : Reasonableness of Dismissal – Conduct unfair dismissal. No error of law in Employment Judge’s approach. Court of Appeal guidance in Bowater and Graham v DWP considered and applied.

Peter Clark J
[2013] UKEAT 0317 – 13 – 0711
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522359

EAT Practice and Procedure : Striking-Out or Dismissal – The Employment Tribunal dismissed the Claimant’s claim for race discrimination. It then made an award for costs against the Claimant in the sum of andpound;8,900, which represented part of the Respondent’s costs. It did so because it considered that the Claimant had put forward false evidence. It therefore concluded that the Claimant had conducted the proceedings unreasonably and said that it was as simple as that.
Held, The Tribunal had misdirected itself in its approach to the exercise of its discretion on costs, because it considered that the simple fact that the Claimant had lied meant that she had conducted the proceedings unreasonably. It should have considered all the circumstances of the case, including the procedural history and the extent to which the Claimant’s lies had made a material impact on its actual findings. The case would therefore be remitted to the Employment Tribunal to be reconsidered according to the correct approach in law. It was not necessary in the interests of justice in this case to remit to a differently constituted Tribunal because this Tribunal was already familiar with the evidence which it had heard at a hearing lasting some 5 days.

Singh J
[2013] UKEAT 0352 – 13 – 1212
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522366

EAT Unfair Dismissal : Reasonableness of Dismissal – The Claimant was employed as a cashier supervisor by the Respondent. Her employment began in 1985 and ended on 30 March 2012 when she was dismissed. The Claimant had received a final written warning in connection with an incident related to failure to follow instructions which took place on 9 August 2010. The essential complaint against her was that she had disregarded an express instruction from a Ms Russell, who was senior to her. Following a disciplinary hearing on 10 September 2010 the Claimant received a final written warning which was to stay on her record for 15 months. She appealed against that but no appeal was ever heard. A further incident took place on 2 December 2011 when the Claimant failed to follow instructions given to her. A disciplinary hearing was heard in March 2012, following which she was dismissed. The person conducting it was aware of the final writing warning previously put on her record and was aware that the appeal had not been determined. The Appellant appealed against the decision to dismiss her and the decision was upheld on appeal. The Employment Tribunal found that the dismissal was not unfair. On appeal to the EAT, the Claimant sought to argue that the ET had misapplied the law in relation to the original final warning. Held the ET did not err in law. There was no reason for the ET to hear evidence on the reason for the imposition of the first final warning as there was nothing to indicate that it was manifestly inappropriate or in any way invalid. Further, the ET considered fully the fairness of the dismissal, including the circumstance that there was an appeal outstanding. It reached the view that the decision to dismiss was a decision which a reasonable employer could have reached. There is no error in law and the appeal is dismissed.

Lady Stacey
[2013] UKEAT 0020 – 13 – 1510
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522354

EAT Disability Discrimination : Reasonable Adjustments – Duty to make reasonable adjustments. Reasonableness question answered by Employment Tribunal, on remission following first appeal, in favour of Respondent. No error of law in that approach. Claimant’s appeal dismissed.

Peter Clark J
[2013] UKEAT 0046 – 13 – 0810
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522353

EAT Unfair Dismissal – Disability Discrimination – Disability – The Appellant raised the issue of disability to explain his dismissal for gross misconduct. The Employment Judge was correct to find on the evidence before him that the Appellant was not disabled.

Birtles J
[2013] UKEAT 0158 – 13 – 0512
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522365

EAT Age Discrimination – The Employment Tribunal has clearly found on the facts that the Claimant was not dismissed by reason of his age.

Serota QC J
[2013] UKEAT 0529 – 12 – 2310
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522350

EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
At the material time the Treasury had imposed a pay freeze on public sector workers including the Claimants. They claimed that, in spite of that pay freeze, they were entitled to increases in their pay from 2010 which were referable to guaranteed pay progression points. They contended that those progression points had been agreed in the pay round which had led (in substance if not in form) to a collective agreement in 2008. Accordingly, they claimed that the Respondent had unlawfully deducted wages to which they were entitled under their individual contracts of employment, which incorporated the terms of the collective agreement. That agreement was reflected in a letter sent by management to union representatives in 2008. The Employment Tribunal accepted the Claimants’ contentions. The Respondent appealed on the ground that the Employment Tribunal had erred in its construction of the agreement. In particular it contended that the letter of 2008 set out what was agreed for a two year period only because the pay increase agreed at that time was to last only for the years 2009/10.
Held, on its true construction, the agreement in this case dealt with two subjects. The first was the pay increase for staff generally, which was limited to the years 2009/10. However, there was also agreed a structural change, which introduced guaranteed pay progression points: that structural change was not limited in time to those two years. The Employment Judge had not erred in failing to have regard to relevant background evidence or other matters. Accordingly, its construction was correct and the appeal would be dismissed.

Singh J
[2013] UKEAT 0262 – 13 – 1312
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522363

EAT Practice and Procedure : Imposition of Deposit – The Employment Judge failed to address rule 20(2) and 20(3) of the 2004 ET Rules as she failed (a) not to refer to the material she considered (b) how she engaged with key material and (c) how she arrived on the figures for deposit orders, Simpson v (1) Chief Constable of Strathclyde Police (2) Scottish Police Services Authority UKEATS/0030/11/BI, 10/1/12 considered.

Birtles J
[2013] UKEAT 0211 – 13 – 1812
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522362

EAT Victimisation Discrimination : Protected Disclosure – Whether the Employment Tribunal erred in law in striking out part of the Claimant’s claim of detriment on the ground of having made a protected disclosure. Specifically as to whether the Tribunal approached its task correctly in concluding that part of the Claimant’s claim should be struck out on the basis that he had no reasonable prospects of successfully demonstrating he had made a disclosure of information rather than having simply made allegations or complaints so as to come within the protection of s.47B Employment Rights Act 1996.

Eady QC
[2013] UKEAT 0359 – 13 – 1912
Bailii
Employment Rights Act 1996 47B
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522364

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – Respondent struck-out for intimidating behaviour at the Employment Tribunal; particularly a driving incident outside the building.
Appeal limited to questions of Meek-compliance. ET reasons sufficient. Appeal dismissed.

Peter Clark J
[2013] UKEAT 0171 – 13 – 2111
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522358

EAT Unfair Dismissal : Reasonableness of Dismissal – Where an Employment Tribunal concludes, as a matter of fact, that an employer has not taken into account any mitigating circumstances before applying the sanction of dismissal in a case of gross or serious misconduct and, therefore, that dismissal is not a reasonable action on the part of an employer in the circumstances of the case, there will not necessarily be a misdirection under section 98(4) of the Employment Rights Act 1996.

Hand QC
[2013] UKEAT 0174 – 13 – 1810
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522356

EAT Right To Be Accompanied – This appeal invited us to reconsider the recent EAT decision in Toal and Hughes v GB Oils Ltd [2013] IRLR 696 that the Employment Tribunal in considering whether where there has been a failure to allow an employee to be accompanied by the companion of his choice, where he reasonably requested a companion (s.10 ERA 1999), cannot consider the nature or qualities of the chosen companion as long as he is within s.10(3), and is limited to considering whether it was reasonable for the employee to request a companion.
We expressed some concern about the effect of Toal; what if the chosen companion had a history of disruptive behaviour? However, we followed Toal, having regard to the acceptance on behalf of the Claimant that if the rejection of the companion was on the facts justified the ET could reduce the compensation, even to nil.

Jeffrey Burke QC
[2013] UKEAT 0177 – 13 – 1410
Bailii
Employment Relations Act 1999 10
England and Wales
Citing:
Considered – Toal and Another v GB Oils Ltd (Statutory Discipline and Grievance Procedures) EAT 22-May-2013
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether choice of companion to accompany employee at grievance hearing must be ‘reasonable’ (No). Whether employee refused first choice of companion waives . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 December 2021; Ref: scu.522352

EAT Trade Union Rights – Circumstances in which a term can be implied into a trade union’s rulebook – scope of any such term to be implied – Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15 applied.

Keith J
[2013] UKEAT 0256 – 13 – 2811
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522361

EAT S.98A(2) ERA – Unfair dismissal. The Appellant appealed against a finding that it had unfairly dismissed the Respondent. The Employment Tribunal had found that the dismissal was unfair but that in light of section 118, 119, 122 123 of ERA 1996 the Respondent was not entitled to any monetary award, basic or compensatory. The reason for dismissal was gross misconduct, consisting of working at height on a roof without wearing a harness, despite instruction not to do so. The misconduct was admitted. The ET held that dismissal was an appropriate response but found that the Appellant had failed to establish overall that its decision to dismiss was fair.
Held: the ET misdirected itself in law by putting the onus on the Appellant to show that the dismissal was fair. Appeal allowed and finding that the dismissal was fair substituted.

Lady Stacey
[2013] UKEAT 0021 – 13 – 1107
Bailii
Employment Rights Act 1996 98A
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522336

EAT Practice and Procedure : Striking-Out/Dismissal – An appeal to this Tribunal is an opportunity for a litigant to ask for a further view to be taken of his claim but it is subject to procedural rules so as to enable this Tribunal to deal not just with that appeal but with a large number of other appeals, all of which must be dealt with in an orderly fashion if this Tribunal is to function effectively. If appellants who have been granted a full hearing do not comply with the Rules, they must understand that whilst some allowance may be made initially, if there is repeated non-compliance, eventually their appeal will be dismissed, because, in the interests of the administration of justice, that matter should not take up the time of this Tribunal any further. Appeal dismissed because of non-compliance with the rules and costs of andpound;1,500.00 ordered.

Hand QC J
[2013] UKEAT 0195 – 13 – 2810
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522344

EAT Practice and Procedure : Postponement or Stay – The Appellant’s solicitors made an application for an adjournment of a hearing on the grounds that the Appellant’s managing director was unable to attend by reason of a business commitment: no details of the commitment were given. The day prior to the hearing an Employment Judge refused the application, expressly stating that the application could be renewed if appropriate at the hearing. The Appellant did not attend the hearing, which proceeded in the Appellant’s absence. It was argued that the Employment Judge erred in law in refusing the application and that the hearing ought in any event to have been adjourned.
Held: appeal dismissed. The Employment Judge when refusing the application for an adjournment applied the correct legal test; and there was no error in proceeding with the hearing the following day. Transport for London v O’Cathail [2013] ICR 614 applied.

David Richardson J
[2013] UKEAT 0098 – 13 – 1109
Bailii
England and Wales
Citing:
Applied – Transport for London v O’Cathail CA 29-Jan-2013
The court considered an appeal against a refusal of a late application for an adjournment by an employment tribunal.
Held: The appeal was allowed. There had been no error of law in the decisions of the ET to refuse adjournments either in its . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 December 2021; Ref: scu.522338

EAT Unlawful Deduction From Wages – Appeal
Deduction from wages. Flexi-hours scheme. The Claimant was employed by the Respondent. The Respondent operated a flexi-hours scheme whereby the Claimant was entitled to take time off in respect of extra hours already worked. The contract of employment and the employees’ handbook were silent on the effect on the treatment of flexi-hours when an employee left for any reason. The Respondent made the Claimant redundant. The Respondent offered to make payment to the Claimant in respect of a restricted number of hours. The Claimant refused, arguing that he was entitled to be paid at an hourly rate for all flexi-hours. The Employment Tribunal found in favour of the Claimant, finding that the Claimant should not have to work hours for which he would not be paid.
Held: Appeal allowed. There was no express term that payment in money would be paid for flexi hours worked. There was no need to imply such a term. The ET erred in law by doing so.
Cross Appeal
Unfair dismissal. The Claimant argued in a cross-appeal that he had been unfairly selected for redundancy.
Held: The ET made no error in law in deciding that the employer carried out a fair procedure; that the reason for dismissal was redundancy and that selecting the Claimant was fair. Cross appeal refused.

Ladt Stacey
[2013] UKEAT 0015 – 13 – 1707
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522337

EAT Unfair Dismissal : Constructive Dismissal – PRACTICE AND PROCEDURE – Striking-out/dismissal – Claim correctly struck out as having no reasonable prospect of success.

Mitting J
[2013] UKEAT 0261 – 13 – 2210
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522339

EAT Unfair Dismissal – Tribunal procedure. Whether, having given directions for a full hearing, and dismissed a subsequent application for a pre-hearing review, the Tribunal could then later direct a pre-hearing review.
Held: the Tribunal had no power, in the absence of changed circumstances, to make an order for a particular form of hearing when it had previously rejected an application for that form of hearing. Goldman Sachs Services Ltd v Montali [2002] ICR 1251 followed and applied.

Luba QC J
[2013] UKEAT 0431 – 13 – 2310
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522341

EAT Unlawful Deduction From Wages – UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
The Employment Judge had not specifically addressed the period when apparently the Appellant had been willing to carry out part of his duties and had wrongly concluded that Miles v Wakefield [1987] IRLR 193 disposed of the unlawful deductions claim for those weeks. That error was also reflected in her disposal of the issue of dismissal; her primary conclusion that there had been no dismissal was untenable (Geys v Societe Generale [2013] 1 AC 523) and made an impact on the issues dependent upon that. Remitted for re-consideration in accordance with the terms of the Judgment.

Hand QC J
[2013] UKEAT 0438 – 12 – 1410
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522345

EAT Practice and Procedure : Review – UNFAIR DISMISSAL – Dismissal/ambiguous resignation
An employee who worked for a building society was disciplined for carrying out personal transactions whilst serving at the branch. The disciplinary panel had not yet announced its decision when the Claimant’s trade union representative asked to appeal to the Chair. He did, and was told that the decision would be to dismiss her. He asked if he could consult the Claimant before it was announced, and whether if she resigned before the announcement she could have a ‘clean’ reference. He consulted her; she spoke to her husband; and then offered her resignation. The Employment Tribunal concluded this was a resignation, and not a dismissal.
The Claimant appealed, asserting untruthfully that the TU representative was an employee of the Respondent, and thus that she was pressured into resignation, such that it was not truly a voluntary choice but a dismissal. Leave to proceed to a full hearing was granted partly on that basis. When the true facts came to light, the Respondent sought a review of the grant of permission to proceed. Though it had to be emphasised that reviews of such a decision would very rarely if ever be granted, one was: but on review, the Claimant having declined to accept the hearing as the hearing of the appeal itself, it appeared there still remained an issue of law which should be determined at a full hearing, and the original decision was confirmed.

Langstaff P J
[2013] UKEAT 0028 – 13 – 2310
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522347

EAT Victimisation Discrimination : Protected Disclosure – whether it was the grounds for a dismissal
The Claimant maintained that she was dismissed by the Appellant on the grounds that she had made a protected disclosure. At the hearing before the Employment Tribunal the Appellant maintained that the decision maker who dismissed her knew nothing at all about any protected disclosure. The ET rejected that evidence and found that her protected disclosure had a material influence on the decision to dismiss. On appeal the Appellant maintained that the ET in considering the reasons for the dismissal had ignored the distinction between the making of a protected disclosure and the manner in which it was made or conduct associated with it. Because of the way the Appellant had run the case before the ET that distinction was not relevant and it was too late to raise it on appeal.

Shanks J
[2014] UKEAT 0235 – 13 – 1103
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522334

EAT Disability Discrimination : Direct Disability Discrimination – Reasonable adjustments
In this appeal the Respondent, Swissport, challenged the Tribunal’s decision under the DDA (a) that there was a failure to make reasonable adjustments, which would have enabled the disabled Claimant to return to work; and (b) that the Claimant’s dismissal was an act of direct disability discrimination.
The Claimant was a flight dispatcher employed at Gatwick Airport who, after an accident at work, had a lengthy absence from work as a result of his injuries and complications before being dismissed. There was no appeal against the finding of unfair dismissal.
The Respondent’s main submission was that the Tribunal fell into the trap identified in Royal Bank of Scotland v. Ashton [2011] ICR 632 and failed to apply the correct legal test in relation to failure to make reasonable adjustments. On appeal, the EAT held that this criticism was not well-founded and the appeal in relation to this finding was dismissed.
The EAT allowed the Respondent’s appeal against the finding of direct disability discrimination on the basis that, although identified in the judgment as an issue requiring determination, dismissal as an act of direct disability discrimination was neither pleaded nor pursued at the hearing and the finding was therefore arrived at in error.

Cox DBE J
[2014] UKEAT 0134 – 13 – 0703
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522333

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
UNFAIR DISMISSAL
Unfair dismissal. Application of transitional provisions in case of dismissal alleged to have been unfair under s98A Employment Rights Act 1996. Whether employers had reasonable grounds to believe in lack of capacity of senior employee.

Mitting J
[2013] UKEAT 0183 – 13 – 2510
Bailii
Employment Rights Act 1996 98A
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522348

EAT Unfair Dismissal : Reasonableness of Dismissal – Remedy hearing in respect of unfair dismissal. The Employment Tribunal substituted its own view for that of the Respondent. Remitted to ET to consider compensation afresh.

Stacey Lady
[2013] UKEAT 0170 – 13 – 0703
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522335

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellant had been dismissed allegedly for gross misconduct. The Employment Judge held the dismissal to have been unfair because no reasonable employer could have dismissed by reason of that misconduct in the case of an employee like the Claimant with long service, an exemplary record and the support of the tenants at the estate where he was the caretaker. In the context of wrongful dismissal the Employment Judge found that the conduct did not amount to gross misconduct but in the context of unfair dismissal he never explained or discussed why it was unreasonable for the Employer to have characterised the conduct as gross misconduct. Although the well known authorities (British Home Stores v Burchell [1980] ICR 303, Iceland Frozen Foods v Jones [2009] IRLR 563, Foley v Post Office [2009] ICR 1283, Sainsbury v Hitt [2003] ICR 111, London Ambulance Service NHS Trust v Small [2009] IRLR 563, Graham v SSWP [2012] IRLR 759, Barchester Healthcare v Tayeh [2013] IRLR 387 and JJ Food Service v Kefil [2013] IRLR 850) do not suggest that any finding as to the reasonableness of the characterisation of conduct as gross misconduct is called for, section 98(4) requires consideration of ‘all the circumstances’. If the Employer’s view that the misconduct is serious enough to be characterised as gross misconduct is objectively (as opposed to subjectively – see Sandwell v West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT/0032/09/LA) justifiable then that should be considered as one of the circumstances against which to judge the reasonableness or unreasonableness of treating the conduct as a sufficient reason for dismissal. The Employment Judge had erred by not doing that. He did not however substitute his own view for that of the Employer and his decision on contributory fault was not based on a misdirection. In the event, however, the matter was remitted for a complete re-hearing before a differently constituted Employment Tribunal.

Hand QC
[2014] UKEAT 0272 – 13 – 0701
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522332

Post terminaation employment restrictions

David Donaldson QC
[2014] EWHC 615 (Ch)
Bailii

Employment

Updated: 01 December 2021; Ref: scu.522320

EAT Unfair Dismissal – Reasons for adjourning an appeal hearing and giving permission to amend the Notice of Appeal.

Luba QC Rec
[2014] UKEAT 0349 – 13 – 2101
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522139

EAT Sex Discrimination : Direct – Pregnancy and discrimination
The Claimant appealed against the Employment Tribunal’s dismissal of her complaints of direct sex discrimination and/or pregnancy and maternity discrimination under ss. 13 and 18 of the Equality Act 2010. She was dismissed for periods of absence due to post-natal depression arising after her period of maternity leave ended and therefore outside the protected period. Consideration of the ECJ decisions in Hertz, Larsson and Brown v Rentokil and the EAT (Scotland) decision in Caledonia Bureau Investment v Caffrey (decided before Brown). The ET’s decision to reject her claims was upheld.
A second ground of appeal concerned the ET’s finding that there should be a Polkey reduction of 50%. The ET’s decision was found to disclose no error and was also upheld.

Cox DBE J
[2014] UKEAT 0348 – 13 – 1401
Bailii
Equality Act 2010 13 18
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522138

T-88/04, [2006] EUECJ T-88/04
Bailii
European

Employment

Updated: 01 December 2021; Ref: scu.408733

[1999] UKEAT 128 – 99 – 2204
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205114

[1999] UKEAT 244 – 97 – 2304
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205072

[1999] UKEAT 473 – 99 – 1304
Bailii
England and Wales
Cited by:
See Also – Gate Gourmet v Jangra EAT 7-Feb-2000
. .
See Also – Gate Gourmet v J B Jangra EAT 12-Dec-2000
EAT Unfair Dismissal – Other
The employer appealed a finding of unfair dismissal and disability discrimination. She suffered an apparently minor injury, but which led to long standing disability with varying . .
See also – Jangra v Gate Gourmet London Ltd EAT 8-Oct-2001
. .
See Also – S B Jangra v Gate Gourmet London Ltd EAT 3-Oct-2002
EAT Disability Discrimination – Adjustments
The claimant had suffered a cut finger at work. Severe complications resulted in her eventual dismissal for incapacity. She sought to allege disability . .
See Also – Gate Gourmet v J B Jangra EAT 12-Dec-2002
EAT Unfair Dismissal – Other . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.205080

[1999] UKEAT 901 – 98 – 0104
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: 30 November 2021; Ref: scu.205088

[1999] UKEAT 280 – 98 – 1504
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205111

[1999] UKEAT 180 – 99 – 1205
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205234

[2002] UKEAT 1486 – 00 – 0910
Bailii
England and Wales
Citing:
See Also – Landon v Lill EAT 25-Feb-2002
. .

Cited by:
See Also – Landon v Lill EAT 14-Nov-2002
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.203150

[1999] UKEAT 1482 – 98 – 2804
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205070

[1999] UKEAT 821 – 98 – 0104
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205064

[1999] UKEAT 1484 – 98 – 3004
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.205063

[2002] UKEAT 1486 – 00 – 2502
Bailii
England and Wales
Cited by:
See Also – Landon v Lill EAT 9-Oct-2002
. .
See Also – Landon v Lill EAT 14-Nov-2002
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.202521

[1999] UKEAT 9 – 99 – 0303
Bailii
England and Wales
Citing:
See Also – Shand v Leicestershire County Council and Another EAT 12-Nov-1999
. .

Cited by:
See Also – Shand v Leicestershire County Council and Another EAT 12-Nov-1999
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.205023

[1999] UKEAT 675 – 98 – 1803
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: 30 November 2021; Ref: scu.205025

The Respondents lodged a Notice of Appeal against a Prohibition Notice under the Health and Safety at Work Act 1974. Rule 105(1)(a) of the Tribunal Rules 2013 gave the Respondents 21 days to appeal. Rule 105(1)(b) gave the Employment Tribunal a discretion to excuse lateness provided it was not reasonably practicable to lodge the Notice of Appeal on time. The Respondents accepted that it would have been reasonably practicable to lodge it on time but contended that the Employment Judge had general dispensing powers under Rule 5. They argued that having regard to Rule 5 the Employment Judge was entitled to allow the appeal though late having regard to factors that lay outside Rule 105(1)(b). The Employment Judge accepted he had discretion under Rule 5.
Held that the dispensing power available was that provided under Rule 105 (1)(b) and that Rule 105 was a self-contained rule setting a time limit for appeals against Prohibition Notices and providing a discretion for non-compliance on a more restricted basis than that provided in the body of the Rules. In these circumstances the Employment Judge had no jurisdiction under Rule 5 to relieve the Respondents of non-compliance with the statutory time limit. As regards the cross appeal, the Employment Judge had been correct to hold that on a proper construction of Rule 105(1)(a) the 21 days for appeal included the day when the Prohibition Notice was issued.

[2020] UKEAT 0044 – 19 – 1003
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.653913

Post employment restrictions enforcement.

Pepperall J
[2018] EWHC 3483 (QB)
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.632211

[2000] EWCA Civ B3, [2001] Emp LR 98
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.632185