Category: Employment

Adams v GKN Sankey Ltd: EAT 1980

The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of dismissal from this company with effect from 5.11.79. You will not be expected to work out your notice but will receive money in lieu of notice . .’
Held: The date of dismissal therefore was at the end of that period of notice. Where an employee is dismissed with notice but given pay in lieu of working out the notice period this is a dismissal with notice which does not cut down the period of employment. There is a distinction between an immediate dismissal but with a payment equivalent to what would have been a later period of employment.
Where the employer relies on a notice of termination having a particular effect, he is required to demonstrate unambiguously that it has that effect. Ambiguities in the notice properly construed, must be resolved in favour of the employee, since otherwise an employee may be left in doubt as to where he stands and may lose his statutory rights.

Slynn J
[1980] IRLR 416
England and Wales
Cited by:
Cited – Calor Gas Ltd v Dorey EAT 26-Sep-1997
The employee had complained of unfair selection for redundancy. The effect of a letter dismissing him with notice was questioned.
Held: The appeal was allowed. The Tribunal had erred in not allowing that there might be alternative situations . .
Cited – Chapman v Letheby and Christopher Ltd 1981
Date of termination of employment – employer required to show that the notice was clearly to the particular effect asserted by him. . .
Cited – Hannigan v A B Stratos Ltd EAT 11-Feb-1993
Claim by defendant that the tribunal did not have jurisdiction, saying that it had been filed out of time. . .
Cited – Bestwide Ltd (T/A Telford Hotel Golf and Country Club) v Butler EAT 29-Mar-1993
Query as to the date of termination of employment . .
Cited – Tallon v Manchester TEC Ltd EAT 18-Jan-1996
. .
Cited – Mostyn House School v Stovell EAT 20-Feb-1998
. .
Cited – Graham Group Plc v Garratt EAT 20-Feb-1997
Whether claim in time – effective date of termination . .
Cited – HQ Service Children’s Education (MOD) v Davitt EAT 28-Jan-1999
. .
Cited – MMD (Shipping Services) Ltd v Philpott EAT 1-May-1999
. .
Cited – Enesco European Giftware Group Ltd v Birkett EAT 6-Dec-2001
. .
Cited – Opare-Addo v Wandsworth EAT 5-Dec-2002
. .
Cited – Pace Telecom Ltd v Mcauley CANI 5-Oct-2011
. .
Cited – Gibson v St Patrick Visitor Centre Ltd NIIT 16-Jan-2012
. .
Cited – McCabe v Greater Glasgow Health Board EAT 10-Jun-2014
EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
UNFAIR DISMISSAL – Dismissal/ambiguous resignation
A claim for unfair dismissal was held out of time on the basis that the . .
Cited – Mehta v London Borough of Haringey EAT 3-Jul-2006
EAT held that on the factor of this case the letter of dismissal was unambiguous and there was therefore no place for the application of the contra proferentem rule of construction. There was therefore no need to follow Chapman v Letheby and . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.453057

Van Winkelhof v Clyde and Co Llp and Another: EAT 26 Apr 2012

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. Applying Lawson v Serco, Duncombe (No. 2) and Ravat, on any view Employment Tribunal entitled to conclude that it had jurisdiction territorially to entertain both whistleblowing claim (ERA) and claims under Equality Act 2010.

Peter Clark J
[2012] UKEAT 0568 – 11 – 2604
Bailii
Equality Act 2010 230(3)
England and Wales
Citing:
See Also – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .

Cited by:
See Also – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
See Also – 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, Discrimination

Updated: 30 November 2021; Ref: scu.459933

Ellis v Joseph Ellis and Co: CA 1905

A member of a partnership formed to work a mine worked in it as foreman. He took weekly wages from the profits. He suffered a fatal accident in the mine and his widow sought compensation under the 1897 Act from the surviving partners. To qualify he had to have been a workman, which was defined broadly in the Act and extended beyond employees strictly defined: ”Workman’ includes every person who is engaged in an employment to which this Act applies, whether by way of manual labor or otherwise, and whether his agreement is one of service or apprenticeship or otherwise and is expressed or implied, is oral or in writing’. The Court was asked whether, given his position as a partner, he came within the definition. Could he be regarded as a workman in the employ of the partnership with the other partners being his employer?
Held: The action failed.
Lord Collins MR thought that he could not: ‘The supposition that the deceased man was ’employed’, within the meaning of that term as used in the Act, would appear to involve that he, as one of the partners, must be looked upon as occupying the position of being one of his own employers. It seems to me that, when one comes to analyse an arrangement of this kind, namely, one by which a partner himself works, and receives sums which are called wages, it really does not create the relation of employers and employed, but is, in truth, a mode of adjusting the amount that must be taken to have been contributed to the partnership assets by a partner who has made what is really a contribution in kind, and does not affect his relation to the other partners, which is that of co-adventurer and not employee. Such a partner cannot put himself in the position of not being a partner when he is one, or of being a workman employed, when that position would involve that he would be both employer and employee. The definition of a ‘workman’ given in the Act might cover a person in such a position, apart from the difficulty that arises from the consideration that he would be his own employer; but that is not conclusive, because the applicability of the Act appears to depend not merely on the question whether the injured man was a workman within the definition given by the Act, but also on the existence of the relation of employer and workman. Sect.1 sub-s.1 provides that, ‘if in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act.’ That section appears to me clearly to contemplate a relation between two opposite parties, of whom one is employer and the other employee. It seems to me obvious, when the true position of the deceased is analysed, that he was not such a workman as is contemplated by the Act, and that a person cannot for the purposes of the Act occupy the position of being both employer and employee’.
Mathew LJ stated that it was legally impossible for the same person to occupy the position of being both master and servant, employer and employed.
Cozens-Hardy LJ held that ‘the Act only applies where there is on one side an employer, and on the other side a workman, who are different persons.’

Lord Collins MR, Cozens-Hardy, Mathew LJJ
[1905] 1 KB 324
Workmen’s Compensation Act 1897
England and Wales
Cited by:
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
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, Company, Personal Injury

Updated: 30 November 2021; Ref: scu.465969

Heinisch v Germany: ECHR 21 Jul 2011

The applicant alleged, in particular, that her dismissal without notice from her employment as a geriatric nurse on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement had infringed her right to freedom of expression.
Held: Article 10 extended to a geriatric nurse in a nursing home who reported her employers to the prosecuting authorities because of the understaffing. Her dismissal without notice on the ground that she had lodged a whistleblowing complaint against her employer and the failure of the domestic courts to order her reinstatement had violated her rights under article 10. Her right to impart information could be restricted if this was in accordance with the law, pursued a legitimate aim (in this case to protect the rights and reputation of the employer), and was proportionate to that aim. The court considered a number of factors relevant to the proportionality calculation, bearing in mind the duty of loyalty owed by an employee to her employer. It was important to establish whether the employee was acting in good faith and had reasonable grounds for the complaint, whether the information disclosed was in the public interest, and whether there was any more discreet means of remedying the wrongdoing; proportionality also required a careful analysis of the severity of the penalty imposed upon the whistle-blower and its consequences (see paras 62 to 70). Hence article 10 operates as a protection for whistle-blowers who act responsibly.

Dean Spielmann, P
28274/08, [2011] ECHR 1175, [2011] IRLR 922, (2014) 58 EHRR 31, 32 BHRC 252
Bailii
European Convention on Human Rights 10
Human Rights
Citing:
Cited – Kudeshkina v Russia ECHR 24-Feb-2009
Article 10 applies to the workplace in general, and a professional person such as a judge is entitled to the freedom to criticise the judicial system. . .

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.

Human Rights, Employment

Updated: 30 November 2021; Ref: scu.442079

Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust: EAT 5 Jan 2010

EAT JURISDICTIONAL POINTS
EXTENSION OF TIME: JUST AND EQUITABLE
A claim form alleging victimisation/discrimination on the grounds of race was lodged 4 hours and 20 minutes out of time by an unqualified representative.
The Employment Tribunal refuses to extend time, largely on the basis of the default of the Representative.

[2010] UKEAT 0356 – 09 – 0501
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.396730

Calor Gas Ltd v Bray: EAT 12 Sep 2005

EAT The Tribunal had been incorrect in holding that a consultation period regarding redundancy during maternity leave was extended to the end of the maternity leave. The Tribunal had displayed clear hostility and partiality during hearing amounting to bias.

Ansell J
UKEAT/0633/04, [2005] UKEAT 0633 – 04 – 1209
Bailii, EATn
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.230155

Calor Gas Ltd v Dorey: EAT 26 Sep 1997

The employee had complained of unfair selection for redundancy. The effect of a letter dismissing him with notice was questioned.
Held: The appeal was allowed. The Tribunal had erred in not allowing that there might be alternative situations arising. Whether and employee was dismissed with or without notice when not required to work any notice was a question which needed to be answered.

Hicks QC J
[1997] UKEAT 651 – 97 – 2609
Bailii
England and Wales
Citing:
Cited – Adams v GKN Sankey Ltd EAT 1980
The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of . .
Cited – Delaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.207705

Redcar and Cleveland Borough Council v O’Donoghue: EAT 20 Apr 1999

[1999] UKEAT 106 – 99 – 2004, [1999] UKEAT 1457 – 96 – 2004
Bailii, Bailii
England and Wales
Cited by:
Appeal from – O’Donoghue v Redcar and Cleveland Borough Council CA 17-May-2001
The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The . .
See Also – Redcar and Cleveland Borough Council v O’Donoghue EAT 21-Jan-2000
. .
See Also – O’Donoghue v Redcar and Cleveland Borough Council EAT 17-May-2000
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.205112

Bull Information Systems Ltd v Joy and Rose: EAT 13 Apr 1999

The claimants complained of unfair dismissal. The appellant company said that the contracts, as apprenticeships, did not give rise to continuous service accruals. The company appealed against a refusal of an adjournment of the hearing.
Held: The appellant had not made out a sufficient error in law to allow the tribunal to overturn the interlocutory decision.

Peter Clark J
[1999] UKEAT 452 – 99 – 1304
Bailii
England and Wales
Citing:
Mentioned – Bastick v James Lane (Turf Accountants) Ltd 1979
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending.
Held: The court refused to interfere with the exercise of his dicretion . .
Cited – Carter v Credit Change Ltd CA 2-Jan-1979
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal’s exercise of its discretion. Stephenson LJ said: ‘All the reasons which he gave seem to me to be good reasons for the decision to which he came; many . .
Cited – Adams and Raynor v West Sussex County Council 1990
The EAT does not have a general power of review of interlocutory orders made by Industrial Tribunals or a Chairman. An appellant must convince the appeal tribunal that the Industrial Tribunal had erred in legal principle in the exercise of the . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.205059

Sridhar v Kingston Hospital NHS Foundation Trust (Practice and Procedure : Race Discrimination): EAT 21 Jul 2020

The Appellant appealed against the ruling of the Employment Tribunal at a Preliminary Hearing that certain of his race discrimination and racial harassment claims should be struck out because they were out of time. The appeal was allowed, on the basis that the Tribunal had not addressed the Appellant’s contention that apparently disparate acts and omissions were linked as being part of a continuing discriminatory state of affairs so as to amount to an act extending over a period for the purposes of Equality Act 2010, section 123(3)(a), following Hendricks v the Commissioner of Police for the Metropolis [2003] ICR 530 (CA). The EAT substituted a finding that it was premature to strike out the relevant parts of the Appellant’s claim, as the Hendricks issue should be determined by the Tribunal at the Full Merits Hearing, after hearing all the evidence.
The Appellant also appealed against the decision of the Employment Tribunal at the Preliminary Hearing that the Appellant would not be able to advance a victimisation claim at the Full Merits Hearing. This ground of appeal was dismissed, on the basis that the Tribunal had been right to refuse the victimisation claim to be advanced, as it was not pleaded in the ET1 and had not been included in the list of issues that had been agreed by counsel for both parties and approved by the Tribunal at a previous Preliminary Hearing, and because the Appellant had not applied to amend to add the victimisation claim.
The third ground of appeal, which was that the Tribunal had been wrong to dismiss the Appellant’s reconsideration application because it was out of time was dismissed. The Appellant was right that the Tribunal had erred in finding that the reconsideration application was out of time, but the subject-matter of the reconsideration application consisted of grounds of appeal, rather than a valid reconsideration application, and the subject-matter had been dealt with in this appeal. Accordingly, no purpose would be served by allowing the appeal on this ground and remitting the reconsideration application to the Employment Tribunal.

[2020] UKEAT 0066 – 20 – 2107
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.653916

Delaney v Staples: HL 15 Apr 1992

The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The claim was a claim in contract, and as such had to be presented to the County Court. ‘Wages’ were a payment for services rendered through the employment. A payment in lieu of notice arose from the termination of the employment contract not from a request for payment for services done, rather than to the provision of services by the employee, and were not ‘wages’. The industrial tribunal had no jurisdiction to deal such a claim. At the same time the Secretary of State should consider extending the jurisdiction of the tribunals to allow such claims.
Lord Browne-Wilkinson set out the four ‘principal categories’ of payment in lieu of notice in the following terms: ‘(1) An employer gives proper notice of termination to his employee, tells the employee that he need not work until the termination date and gives him the wages attributable to the notice period in a lump sum . . (2) The contract of employment provides expressly that the employment may be terminated either by notice or, on payment of a sum in lieu of notice, summarily. In such a case if the employer summarily dismisses the employee he is not in breach of contract provided that he makes the payment in lieu . . (3) At the end of the employment, the employer and the employee agree that the employment is to terminate forthwith on payment of a sum in lieu of notice . . (4) Without the agreement of the employee, the employer summarily dismisses the employee and tenders a payment in lieu of proper notice . . The employer is in breach of contract by dismissing the employee without proper notice. However, the summary dismissal is effective to put an end to the employment relationship . .’ In construing the definition of ‘wages’ 1986 Act 1986 Lord Browne-Wilkinson said that ‘it is important to approach such definition bearing in mind the normal meaning of that word’ and ‘bearing in mind the normal meaning of that word. I agree with the Court of Appeal that the essential characteristic of wages is that they are consideration for work done or to be done under a contract of employment. If a payment is not referable to an obligation on the employee under a subsisting contract of employment to render his services it does not in my judgment fall within the ordinary meaning of the word ‘wages’. It follows that if an employer terminates the employment (whether lawfully or not) any payment of wages in respect of the period after the date of such termination is not a payment of wages (in the ordinary meaning of that word) since the employee is not under obligation to render services during that period.’

Lord Browne-Wilkinson
Gazette 15-Apr-1992, [1992] 2 WLR 451, [1992] 1 AC 687, [1992] ICR 483
Employment Protection (Consolidation) Act 1978 49, Wages Act 1986 7
England and Wales
Citing:
Appeal from – Delaney v Staples CA 1991
Any failure by an employer to pay any amount of wages properly payable to an employee amounts to a deduction from his wages for the purposes of section 7. The basic object of the 1986 Act is ‘to see that workers receive their wages in full at the . .

Cited by:
Cited – Krasner v McMath; in Re Huddersfield Fine Worsteds Limited CA 12-Aug-2005
The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Revenue and Customs v Stringer, Ainsworth and Others HL 10-Jun-2009
In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed . .
Cited – Calor Gas Ltd v Dorey EAT 26-Sep-1997
The employee had complained of unfair selection for redundancy. The effect of a letter dismissing him with notice was questioned.
Held: The appeal was allowed. The Tribunal had erred in not allowing that there might be alternative situations . .
Cited – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Cited – Discount Tobacco and Confectionary Ltd v Williamson EAT 12-Jan-1993
The company appealed against a finding that they had made an unlawful deduction from the claimant’s salary. He was manager of a store where there had been shortfalls of stock, and had deducted part of its value from his salary on dismissing him. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2021; Ref: scu.79889

Hulley and Kirkwood Consulting Engineers Ltd v Marston: EAT 21 Feb 2014

EAT Unfair Dismissal : MATERNITY RIGHTS AND PARENTAL LEAVE – Unfair dismissal
Unfair dismissal, sex and maternity discrimination. The Claimant was employed by the Respondent from 2006 to 2011. The Respondent claimed that she was redundant and dismissed her at a time when she was on maternity leave. The Employment Tribunal found that she was unfairly dismissed and that she had been discriminated against by reason of her sex and because she was on maternity leave. The Respondent appealed on the basis that the ET had failed to give reasons for its decisions; had substituted its own judgment for that of the Respondent; had failed to explain what discriminatory acts that it had found, and had failed to apply the law in regard to the burden of proof.
Held: the ET had erred in law by failing to give adequate reasoning for its decisions. The case it will be remitted to a fresh Tribunal to be heard again.

Lady Stacey
[2014] UKEAT 0078 – 13 – 2102
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.521650

Abertawe Bro Morgannwg University v Local Health Board and Another: EAT 18 Feb 2014

EAT Disability Discrimination : Reasonable Adjustments – EXTENSION OF TIME: JUST AND EQUITABLE
PERVERSITY
An employee, who suffered from the effects of a significant depressive illness, was subject to a PCP that she should attend work in her usual post. In deciding that an employer had failed in its duty to make reasonable adjustments in the light of her agreed disability, by failing to redeploy her to an alternative post ‘in line with’ the advice of its Occupational Health doctor, the ET erred, since as to a period before August 2011 it did not have any clear idea what features such a job would have to have to avoid the PCP causing substantial disadvantage to the claimant, and though it asked whether the adjustment would have done so, conspicuously failed to answer that question. (Though it thought that the failure to make the adjustment had caused additional difficulty to the Claimant, this did not answer the question whether to make it would have avoided the disadvantage in the first place). The answer was not self-evident. As to the period after August 2011 it wrongly assumed that the doctor was advising that she could work if only some adjustments were made in connection with a particular alternative post, whereas he was in fact saying (at the time) that she could not work at all and would only be able to do so if her condition improved. This same material misconception of fact vitiated a finding of discrimination related to disability.
Two findings of harassment were made which were also subject of appeal. The incidents giving rise to them arose in one case some three years before the claim was made. It was unclear whether the tribunal, when accepting in relation to that case that the approach of a manger in a meeting had caused the proscribed ‘environment’ had meant to say that it caused that during the meeting, but not more broadly, and since it did not refer to any evidence of ongoing consequence or perpetuated difficult atmosphere probably gave too wide a scope to ‘environment’ which refers to an ongoing state of affairs and not a short-lived one-off incident (Weeks v Newham College applied). The appeal in relation to the other finding was rejected.
Finally, the ET had erred in its exercise of discretion to extend time on the basis that it was just and equitable to do so: each allegation was separate, and should have been considered separately rather than globally; the ET had not considered a central question – the claimant’s reason in each case for being out of time ; and in reaching a decision that the matter was ‘finely balanced’, but that what tipped the balance was that otherwise the claimant would be denied well-founded claims, had taken into account a view of the merits of the claims that was (after this appeal) shown to be erroneous.
The appeal was allowed; the decision was in part reversed and the balance, including the issue of extension of time in all cases, remitted for further submissions and consideration in the light of the judgment.

Langstaff J P
[2014] UKEAT 0305 – 13 – 1802
Bailii
England and Wales

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.521649

Western Union Payment Services Uk Ltd v Anastasiou: EAT 21 Feb 2014

EAT Victimisation Discrimination : Protected Disclosure – Detriments on the grounds of a protected disclosure:
(1) What has to be shown such as to amount to a disclosure of ‘information’ (s.43(B)(1) ERA 1996) and ‘any legal obligation’ (s.43(B)(1)(b) ERA); Cavendish Munro Professional Risk Management Limited v Geduld [2010] ICR 325, EAT and Fincham v HM Prison Service EAT/0925/01 and EAT/0991/01 applied.
(2) The approach to be adopted to determining whether a detriment is ‘on the grounds of’ a protected disclosure: whether the disclosure ‘materially influenced the decision or action in question, per Elias LJ in NHS Manchester v Fecitt and ors [2012] IRLR 64, at para. 45.
Employment Tribunal’s departure from the agreed list of issues; whether re-casting an issue and adding a further detriment to the list required the ET to permit the parties to make further representations.

Eady QC J
[2014] UKEAT 0135 – 13 – 2102
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.521654

Abertawe Bro Morgannwg University Local Health Board v Morgan: EAT 18 Feb 2014

EAT Disability Discrimination : Reasonable Adjustments – EXTENSION OF TIME: JUST AND EQUITABLE
PERVERSITY
An employee, who suffered from the effects of a significant depressive illness, was subject to a PCP that she should attend work in her usual post. In deciding that an employer had failed in its duty to make reasonable adjustments in the light of her agreed disability, by failing to redeploy her to an alternative post ‘in line with’ the advice of its Occupational Health doctor, the ET erred, since as to a period before August 2011 it did not have any clear idea what features such a job would have to have to avoid the PCP causing substantial disadvantage to the claimant, and though it asked whether the adjustment would have done so, conspicuously failed to answer that question. (Though it thought that the failure to make the adjustment had caused additional difficulty to the Claimant, this did not answer the question whether to make it would have avoided the disadvantage in the first place). The answer was not self-evident. As to the period after August 2011 it wrongly assumed that the doctor was advising that she could work if only some adjustments were made in connection with a particular alternative post, whereas he was in fact saying (at the time) that she could not work at all and would only be able to do so if her condition improved. This same material misconception of fact vitiated a finding of discrimination related to disability.
Two findings of harassment were made which were also subject of appeal. The incidents giving rise to them arose in one case some three years before the claim was made. It was unclear whether the tribunal, when accepting in relation to that case that the approach of a manger in a meeting had caused the proscribed ‘environment’ had meant to say that it caused that during the meeting, but not more broadly, and since it did not refer to any evidence of ongoing consequence or perpetuated difficult atmosphere probably gave too wide a scope to ‘environment’ which refers to an ongoing state of affairs and not a short-lived one-off incident (Weeks v Newham College applied). The appeal in relation to the other finding was rejected.
Finally, the ET had erred in its exercise of discretion to extend time on the basis that it was just and equitable to do so: each allegation was separate, and should have been considered separately rather than globally; the ET had not considered a central question – the claimant’s reason in each case for being out of time ; and in reaching a decision that the matter was ‘finely balanced’, but that what tipped the balance was that otherwise the claimant would be denied well-founded claims, had taken into account a view of the merits of the claims that was (after this appeal) shown to be erroneous.
The appeal was allowed; the decision was in part reversed and the balance, including the issue of extension of time in all cases, remitted for further submissions and consideration in the light of the judgment.

Langstaff J
[2014] UKEAT 0305 – 13 – 0218
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.521648

London Underground Ltd v O”Sullivan: EAT 18 Feb 2014

EAT Disability Discrimination : Reasonable Adjustments – UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal finding of capability unfair dismissal upheld. However, reasonable adjustment question remitted to same ET for reconsideration. EAT decisions in Romec, Ashton and Foster (not cited below) considered.

Peter Clark J
[2014] UKEAT 0355 – 13 – 1802
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.521652

The Solicitors Regulation Authority v Mitchell: EAT 17 Feb 2014

EAT Sex Discrimination : Direct – The Claimant and a male comparator were permitted to work from home on certain days each week to facilitate child care arrangements. The Claimant’s right to do so was revoked, although she was offered the facility of more flexible working hours. The explanation for the Claimant’s apparently less favourable treatment was rejected by the Employment Tribunal which went on to find that the reverse burden of proof in Section 63A of the Sex Discrimination Act 1975 had come into play and that the Respondent had failed so show a non-discriminatory reason for its treatment of the Claimant.
Evidence of unreasonable and less favourable treatment coupled with a difference in protected characteristic is not sufficient evidence in itself without ‘something more’ to reverse the burden of proof; [the Zafar trap]. Something more’ is required to entitle the Employment Tribunal to infer, in the absence of a satisfactory explanation, a discriminatory reason for the less favourable treatment and thus reverse the burden of proof.
In appropriate circumstances the ‘something more’ can be an explanation proffered by the Respondent for the less favourable treatment that is rejected by the Employment Tribunal.
The finding that the Respondent had given a false explanation for the less favourable treatment did therefore constitute ‘something more’ and the Employment Tribunal was accordingly entitled, if not bound, to conclude that the Claimant had suffered discrimination.
Dicta of Sedley LJ in Anya v University of Oxford [2001] IRLR 377, Elias J in Law Society v Bahl [2003] IRLR 640, and Langstaff J in Birmingham City Council v Millwood [2012] UKEAT 0564 followed.

Serota QC J
[2014] UKEAT 0497 – 12 – 1702
Bailii
Sex Discrimination Act 1975 63A
England and Wales

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.521653

Kidron House v Howie: EAT 21 Jan 2014

EAT Unfair Dismissal : Compensation
The Claimant was employed by the Respondent as a chambermaid at Kidron House Hotel, owned by the Respondent, between 1 June 2011 and 23 April 2012. She was dismissed and made a claim of unfair dismissal. The Employment Tribunal decided that she had been unfairly dismissed, by reason of being pregnant. An award was made in respect of a basic award and a compensatory award. The Respondent appealed alleging that the ET had erred in law by failing to make a Polkey deduction.
Held: that the ET had not explained in its reasons that it had considered the chance of the Claimant being dismissed fairly during the period for which it had made an award. It had made an award for the whole period sought. The ET erred in law by failing to give their reasoning for the decision that there was no chance of the dismissal and therefore no deduction. The case is remitted to the same Tribunal in order that they consider, on the facts already found, the matter of compensation afresh.

Stacey J
[2014] UKEAT 0036 – 13 – 2101
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.521646

Moseka v Sheffield Teaching Hospital NHS Foundation Trust: EAT 16 Jan 2014

EAT Practice and Procedure : Striking-Out/Dismissal – JURISDICTIONAL POINTS – Claim in time and effective date of termination
Whether Employment Tribunal erred in law in approach to deciding whether complaints of race and disability discrimination amounted to ‘conduct extending over a period’. Save in respect of the characterisation of one complaint (relating to grievance complaint), ET approach and decision upheld.

Eady QC J
[2014] UKEAT 0517 – 13 – 1601
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.521647

Croesus Financial Services Ltd v Bradshaw and Another: QBD 25 Nov 2013

The defendants had contracted to provide financial services advice as agents for the claimant. The claimant now sought orders restraining the use of what was said to be their confidential information and other breaches of the post contractual restrictions.

Simler J
[2013] EWHC 3685 (QB)
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.518417

Hoppe v Revenue and Customs and Others (Whistleblowing, Protected Disclosures): EAT 11 Oct 2021

WHISTLEBLOWING, PROTECTED DISCLOSURES
The proceedings in the employment tribunal are ongoing. The claimant is a former civil servant and employee of HMRC who was dismissed on the given ground of conduct. Over a period of years, before and after the dismissal, he presented a number of claims to the employment tribunal. His complaints included that he was subjected to detrimental treatment, and unfairly dismissed, for having made protected disclosures. He also alleged various wrongdoing in relation to an application made by him following dismissal for civil service injury benefit in relation to ill health. His case is that his ill health has been caused by his wrongful treatment by HMRC. The claims were and are disputed and defended. A number of decisions of the tribunal were the subject of appeals to the EAT. The following matters were considered at the hearing in the EAT giving rise to the present decision.
(1) The tribunal struck out 18 complaints of detrimental treatment on grounds of protected disclosures. This was the full hearing of the appeal against that decision. The tribunal was entitled to strike out 15 of the detriments. But it erred in relation to three of them, which should be considered at the full merits hearing alongside the complaints of unfair dismissal for having made protected disclosures and ordinary unfair dismissal.
(2) The tribunal struck out complaints against MyCSP, Health Management Limited and the Minister for the Civil Service. This was the full appeal hearing in respect of that decision. The complaints against each of those respondents were sustainable only on the basis that they acted as agents of HMRC in respect of the matters alleged against them. The tribunal was not wrong to conclude that there was no reasonable prospect of that being shown.
(3) There was a challenge to the partial refusal of a disclosure application. That was not reasonably arguable, and was not permitted to proceed to a full appeal hearing.
(4) In another decision the tribunal had determined that the Cabinet Office and Health Assured Limited were not agents of HMRC in respect of the matters alleged against them. The EAT refused to extend time in respect of an out-of-time appeal against that decision.
(5) An appeal against a refusal by the tribunal to reconsider that same decision of the tribunal had no reasonable prospect of success and was not permitted to proceed to a full hearing.
(6) Appeals against case management decisions taken in respect of the remaining live complaints against HMRC were not arguable and were not permitted to proceed to a full hearing.

[2021] UKEAT 2020-000093
Bailii
England and Wales

Employment

Updated: 30 November 2021; Ref: scu.668644

Kemeh v Ministry of Defence: CA 11 Feb 2014

The claimant, a British Army cook, had been racially abused whilst serving in the Falklands by a worker for an independent contractor and by a Sergeant. The EAT had overturned the finding that the respndent was liable for the acts of the first, and had reduced from andpound;12,000 the damages awrd for the second incident.

Elias, Lewison, Kitchin LJJ
[2014] EWCA Civ 91, [2014] IRLR 377, [2014] WLR(D) 59, [2014] Eq LR 259, [2014] ICR 625
Bailii, WLRD
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521134

Veolia Environmental Services Uk v Gumbs: EAT 7 Feb 2014

EAT Race Discrimination : Inferring Discrimination – Burden of proof
The submission that both Madarassy v Nomura International plc [2007] ICR 867 and Hewage v Grampian Health Board [2012] ICR 1054 support the proposition that an Employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations as to the reason for demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given could not be accepted. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

Judge Hand QC
[2013] UKEAT 0487 – 12 – 0702
Bailii
England and Wales
Citing:
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Hewage v Grampian Health Board SC 25-Jul-2012
The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521104

Crown Prosecution Service v Fraser: EAT 7 Feb 2014

EAT Disability Discrimination – PRACTICE AND PROCEDURE – Review
The CPS appealed against the Employment Tribunal’s decision, on review, to revoke their earlier remedy judgment, made in the absence of the Claimant, and to order a new remedy hearing.
In addition to the importance of the finality of litigation, the ET were found to have had proper regard, in the exercise of their discretion, to the relevant factor that the Claimant’s mental impairment may have influenced the way in which he had conducted the litigation, which the CPS described as ‘unreasonable’. Reference to the equality duty and the ‘judicial function’ exemption in the Equality Act 2010, and the guidance provided in the Judicial College Equal Treatment Bench Book as to the fair treatment of people with mental disabilities.
The appeal was dismissed.

Cox J
[2014] UKEAT 0021 – 13 – 0702
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.521102

Gebremariam v Ethiopian Airlines Enterprise (T/A Ethiopian Airlines): EAT 4 Feb 2014

EAT UNFAIR DISMISSAL – Constructive dismissal
SEX DISCRIMINATION – Inferring discrimination
There were multiple points in this appeal in which the Claimant appealed against the rejection of her claims for constructive unfair dismissal, direct discrimination, indirect discrimination and detriment by protected disclosure, and the Respondent cross appealed.
Held
(1) On the cross appeal, the so-called ‘Johnson exclusion zone’ did not apply to a case of constructive dismissal based on fundamental breach in the redundancy selection process when the Respondents had withdrawn their notice of dismissal as a result of the Claimant’s appeal, but the Claimant then resigned.
(2) The Employment Tribunal had erred in law in finding that the withdrawal of the notice of dismissal cured their breach: see Buckland (2010 IRLR 45); but
(3) The ET had not considered or made a finding as to whether the Claimant had affirmed the contract before she resigned; remission necessary.
(4) Of the 5 protected disclosures relied upon, which the ET had not addressed in their reasons, the third to fifth either made only allegations (see Geduld 2010 ICR 325) or did not lead to any detriment; but the first and second could not be disposed of in that way; remission necessary.
(5) The ET had permissibly found that the Respondents did not apply the PCP on which the indirect discrimination claim was based.
(6) As to direct discrimination, the ET had adequately considered the issues and were entitled to go, where they had, directly to the ‘reasons why’ question. Their reasoning should not be subjected to an ‘overly critical analysis’; see Hewage (2012 IRLR 70).

Burke QC J
[2014] UKEAT 0439 – 12 – 0402
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521103

GM Packaging (UK) Ltd v Haslem: EAT 29 Jan 2014

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other
Reason for dismissal including substantial other reason
Reasonableness of dismissal
Disciplinary process delegated to external HR consultants by this small employer. The reason for dismissal was the set of facts/beliefs in the mind of the consultants, even although the recommendation for dismissal required approval from the employer.
The reason or principal reason for dismissal relates to the categories of potentially fair reasons in s98 Employment Rights Act 1996. Where the reason is solely ‘conduct’ all constituent parts of that reason are relevant to the reasonableness question under s98(4) not the principal act of misconduct.
Additionally, the Employment Tribunal substituted its view for that of employer as to sanction. Employer appeal against finding of unfair dismissal allowed. Finding reversed.

Peter Clark J
[2014] UKEAT 0259 – 13 – 2901
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.520829

Northumberland Tyne and Wear NHS Foundation Trust v Geoghegan: EAT 29 Jan 2014

EAT Disability Discrimination : Reasonable Adjustments – Sufficiency of reasons
VICTIMISATION DISCRIMINATION – Protected disclosure – Detriment – Sufficiency of reasons
Appeal allowed because (1) the Tribunal’s reasoning on the question of the Respondent’s actual and constructive knowledge of disability was flawed and insufficient; (2) the Tribunal did not give proper and sufficient reasons in respect of its findings that there were breaches of the duty to make reasonable adjustments; (3) the Tribunal did not apply Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664; (4) the Tribunal did not give proper and sufficient reasons in respect of its findings that the Claimant was subjected to detriment on the grounds of making protected disclosures; (5) certain findings made by the Tribunal were perverse, and these findings materially influenced the Tribunal’s assessment of the Respondent’s witnesses

[2014] UKEAT 0048 – 13 – 2901
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.520830

Robert Bates Wrekin Landscapes Ltd v Knight: EAT 30 Jan 2014

EAT Contract of Employment : Wrongful Dismissal – Implied term/variation/construction of term
UNFAIR DISMISSAL – Contributory fault
The Claimant was summarily dismissed. He brought a claim of wrongful dismissal. The Employment Judge found that he had been wrongfully dismissed, the conduct upon which the Respondent relied not being inadvertent and not in repudiatory breach. It was argued that the Respondent was entitled to rely upon an express term of the contract (clause 14.10) so that, even if the Claimant’s conduct was not repudiatory, the Respondent was entitled to dismiss him without notice.
Held: on its true interpretation, clause 14.10 did not apply to a minor or inadvertent breach.
The Claimant was also successful (subject to deductions for contributory conduct and Polkey) in a claim for unfair dismissal. The Respondent argued that by reason of clause 14.10 the deduction for contributory conduct should have been 100%. This argument failed both by reason of the Appeal Tribunal’s interpretation of clause 14.10 and in any event because section 122(2) and 123(6) of the Employment Rights Act 1996 require any assessment of contributory conduct to be made on a just and equitable basis.

Da vid Richardson J
[2013] UKEAT 0164 – 13 – 3001
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.520831

Norbrook Laboratories (GB) Ltd v Shaw: EAT 24 Jan 2014

EAT Victimisation Discrimination : Protected Disclosure
On the facts of this case the Employment Judge did not err in holding that three emails from the Claimant to the Respondent taken together can amount to a qualifying disclosure within the meaning of Employment Rights Act 1996 section 43B(1) even though they were not sent to the same individual or department and taken separately each email was not such a disclosure. Goode v Marks and Spencer plc UKEAT/0442/09 15 April 2010 para 37 applied. Further, drawing a dangerous state of affairs to an employer’s attention is capable of constituting a disclosure of information within the meaning of section 43B(1)(d). The information given in the emails was not too general to constitute disclosure of information within ERA section 43B(1). Appeal from the decision on the preliminary issue of whether the disclosures relied upon by the Claimant are capable of amounting to qualifying disclosure dismissed.

Slade J
[2014] UKEAT 0150 – 13 – 2401
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.520754

Budgen v Smith and Others: EAT 23 Jan 2014

EAT Age Discrimination – The Claimants were employed by the Respondent as civil servants. They were members of the Principal Civil Service Pension Scheme. The Respondent operated a compensation scheme whereby a lump sum was payable in respect of loss of office to the Claimants, who were leaving their posts on a voluntary basis. The amount payable depended on whether the Claimants were eligible to take a pension earned during employment with Respondent as at the date of termination, with no actuarial reduction. If so, the sum payable was 6 months salary. Other employees, who left before being entitled to pension immediately with no reduction, would be paid a lump sum equivalent to a maximum of 21 months salary, depending on the length of time between termination and their entitlement to full pension. The Claimants argued that entitlement to pension was dependent on their having reached the age of 60, which both had. They compared themselves to other employees, members of the same pension scheme, who were leaving, and who were younger and so were receiving higher compensation payments. The Employment Tribunal held a Pre Hearing Review on the preliminary point of whether the Claimants were in the same or not materially different circumstances to the comparators. It decided that they were in materially different circumstances and dismissed the claim.
Held: the ET erred in law. The circumstances of Claimants and comparators were not materially different. The difference between them was age, which is the protected characteristic. It cannot found the difference between Claimant and comparator. Case remitted to the same Tribunal to proceed to the second question of objective justification.

Lady Stacey
[2014] UKEAT 0309 – 12 – 2301
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.520734

Smith v Budgen and Others: EAT 23 Jan 2014

EAT Age Discrimination – The Claimants were employed by the Respondent as civil servants. They were members of the Principal Civil Service Pension Scheme. The Respondent operated a compensation scheme whereby a lump sum was payable in respect of loss of office to the Claimants, who were leaving their posts on a voluntary basis. The amount payable depended on whether the Claimants were eligible to take a pension earned during employment with Respondent as at the date of termination, with no actuarial reduction. If so, the sum payable was 6 months salary. Other employees, who left before being entitled to pension immediately with no reduction, would be paid a lump sum equivalent to a maximum of 21 months salary, depending on the length of time between termination and their entitlement to full pension. The Claimants argued that entitlement to pension was dependent on their having reached the age of 60, which both had. They compared themselves to other employees, members of the same pension scheme, who were leaving, and who were younger and so were receiving higher compensation payments. The Employment Tribunal held a Pre Hearing Review on the preliminary point of whether the Claimants were in the same or not materially different circumstances to the comparators. It decided that they were in materially different circumstances and dismissed the claim.
Held: the ET erred in law. The circumstances of Claimants and comparators were not materially different. The difference between them was age, which is the protected characteristic. It cannot found the difference between Claimant and comparator. Case remitted to the same Tribunal to proceed to the second question of objective justification.

Lady Stacey
[2014] UKEAT 0308 – 12 – 2301
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.520735

TNS UK Ltd v Swainston: EAT 22 Jan 2014

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – The employer decided that it could no longer afford to pay for the Claimant’s post as Business Development Director, and that it would cease to provide most of the services provided by the business development services and performed by the Claimant. The Employment Tribunal found that the dismissal of the Claimant was not by reason of redundancy but for ‘financial reasons’. The Employment Tribunal was in error because, on its findings. the Claimant was dismissed because the Respondent’s requirement for the performance of business development services carried out by the Claimant had ceased or diminished, or was expected to cease or diminish; see S139(1)(b) (i) ERA 1996. The fact that the decision to terminate the Claimant’s post for financial reasons supported the Respondent’s case that her dismissal was by reason of redundancy.
The rationale behind many redundancies is financial. The dismissal was however unfair by reason of the unfair procedure adopted by the Respondent.

Judge Serota QC
[2014] UKEAT 0603 – 12 – 2201
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.520736

Woods v W M Car Services (Peterborough) Ltd: EAT 1981

An employer will be guilty of a breach which entitles an employee to resign and claim constructive dismissal if the employer behaves in such a way as to destroy the relationship of trust and confidence. An employer shall not ‘without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’
Browne-Wilkinson P said: ‘In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v. Andrew [1979] IRLR 84. To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunals’ function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see BAC Ltd v. Austin [1978] IRLR 332 and Post Office v. Roberts [1980] IRLR 347. . . We regard this implied term as one of great importance in good industrial relations. Quite apart from the inherent desirability of requiring both employer and employee to behave in the way required by such a term, there is a more technical reason for its importance. The statutory right of an employee who ceases to be employed to complain that he has been unfairly dismissed is wholly dependent on his showing that he has been ‘dismissed’. In the ordinary case, where an employer in fact dismisses the employee (ie cases falling within s.55(2)(a) and (b)) this normally presents no difficulty. The difficulty arises in cases of constructive dismissal falling within s.55(2)(c) where the employee has resigned due to the behaviour of the employer. As is well known, there used to be conflicting decisions as to whether, in order to constitute constructive dismissal, the conduct of the employer had to amount to a repudiation of the contract at common law or whether it was sufficient if the employer’s conduct was, in lay terms, so unreasonable that an employee could not be expected to put up with it. In Western Excavating (ECC) Ltd v. Sharp (supra) this conflict was resolved in favour of the view that the conduct of the employer had to amount to repudiation of the contract at common law. Accordingly, in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the employer’s conduct amounts to a fundamental breach of the contract. . . . Any breach of that implied term is a fundamental breach amounting to a repudiation since it necessarily goes to the root of the contract: see Courtaulds Northern Textiles Ltd v. Andrew (supra) at paragraph 11.’

Browne-Wilkinson P
[1981] IRLR 347, [1982] ICR 693
England and Wales
Citing:
Appeal from – Woods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .

Cited by:
Considered – Morrow v Safeway Stores Plc EAT 21-Sep-2000
The complainant appealed a decision that she had not been constructively dismissed. She had been told off in public, causing her great distress. The tribunal had found the employer’s behaviour regrettable but not such as to break the duty of trust . .
Applied – Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd 1991
A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s . .
Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Approved – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .
Cited – 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 – 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 – Quinn v Weir Systems Ltd EAT 27-Apr-2001
Appeal at the instigation of the employee against a finding of the Employment Tribunal to the effect that he had resigned from his employment with the respondents in circumstances which did not amount to constructive dismissal. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 November 2021; Ref: scu.181285

Kirby v Manpower Services Commission: EAT 1980

The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected act.
Held: This was not victimisation within section 2. The relevant question was whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind. The claim failed, because the Manpower Services Commission would have treated in the same way any employee who gave away confidential information whatever its nature.

Slynn J
[1980] 3 All ER 334, [1980] 1 WLR 725, [1980] ICR 420
Race Relations Act 1976 2
England and Wales
Citing:
Applied – Ministry of Defence v Jeremiah CA 1980
The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice . .

Cited by:
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Aziz v Trinity Street Taxis Ltd CA 26-Feb-1988
An Asian member of the respondent association of taxi cab operators secretly recorded conversations with other members to gather evidence for a claim under the Act. He was expelled from the association for this conduct. He alleged race . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 29 November 2021; Ref: scu.181287

Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd: CA 30 Sep 2004

The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company director has additional, fiduciary duties over and above those of an employee. The duties are set and imposed by law. Whilst a director was under a fiduciary duty to disclose his wrongdoing to the company, this was not a separate and independent duty but was part of the more general obligation to act in what he in good faith considers to be in the best interests of the company. F was under a duty to disclose that he had a personal interest in the decision before the board. That duty could only be fulfilled by informing the board of his setting up of an independent and competing company. The director was entitled to an apportioned part of his salary until the date of the breach. The 1870 Act should be treated as a remedial Act and there is no justification for striving to restrict its operation, and it does indeed extend to apportionment of salaries when the employment ceased during a pay period.

Mr Justice Holman, Lord Justice Mummery, Lady Justice Arden
[2004] EWCA Civ 1244, Times 21-Oct-2004, [2004] BCC 994, [2007] Lloyd’s Rep PN 17, [2005] ICR 450, [2005] 2 BCLC 91, [2004] IRLR 928
Bailii
Apportionment Act 1870, Companies Act 1985 310 317
England and Wales
Citing:
Appeal from – Item Software (UK) Ltd v Fassihi and Others ChD 5-Dec-2002
Enforcement of confidentiality clause in contract of employment on termination. . .
Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Horcal Ltd v Gatland CA 1984
The court considered the arguments presented as to the duty of a director of a company to disclose his own breach of fiduciary duty: ‘Counsel . . submitted, as a general proposition, that, putting fraud on one side, there is no general duty on . .
Cited – Boston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
Cited – Sybron Corporation v Rochem CA 1983
There was an allegation that the employee had failed to disclose breaches of contract by fellow employees. This had taken place at a time when a decision was being taken as to the payment to be made to him under the terms of a pension scheme. The . .
Cited – Re Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
Cited – Industrial Development Consultants Ltd v Cooley 1972
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the . .
Cited – Moriarty v Regent’s Garage and Engineering Co Ltd KBD 1921
A company director sought payment of his directors fees of andpound;150 per annum where during the course of the year he had ceased to be a director. There was no allegation of impropriety on his part. The company’s articles provided that the . .
Cited – JC Houghton and Co v Northard, Lowe and Wills HL 1927
The court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular . .
Cited – Capron v Capron 1874
By a will made before the 1870 Act, but amended by a codicil after the Act commenced to the use of his wife with remainders over. After her death having inherited the property, the parties disputed the apportionment of the rents.
Held: The . .
Cited – Inman v Ackroyd 1901
In the absence of some custom as to the method of payment a Director’s salary would not be payable until the years service was completed, which necessarily would require that it be paid outside the period of the year in which it was earned . .
Cited – Bhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Sim v Rotherham Metropolitan Borough Council 1981
The 1870 Act applied where an employee’s contract was terminated in the course of a period at the end of which payment would be made. Scott J said: ‘Mr Goudie submitted that the real question was whether a teacher was entitled to be paid for the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Healey v Societe Anonyme Francais Rubastic 1917
A director of the company claimed arrears of salary for work done notwithstanding that he had been summarily dismissed for misconduct. There was no question of a claim for damages for breach of duty. . .
Cited – Winkworth v Edward Baron Development Co Ltd HL 1986
A company director has duties to the company’s creditors as well as the shareholders. ‘Equity is not a computer. Equity operates on conscience . .’ . .
Cited – Meinhard v Salmon 1928
(New York Court of Appeals) Cardozo J said: ‘Equity refuses to confine within the bounds of classified transactions its precept of a loyalty that is undivided and unselfish’ and ‘[a] constructive trust is, then, the remedial device through which . .
Cited – Mutual Life Insurance Co of New York v Rank Organisation Ltd 1985
The duty of loyalty of a director to his company is the ‘time-honoured’ rule. The directors are under a duty to act fairly as between different shareholders. This applies not just where there were different classes of shareholder but also where . .
Cited – In Re Barings Plc, Secretary of State for Trade and Industry v Baker (No 5) ChD 25-Nov-1998
A person disqualified from acting as a company director might exceptionally be given permission to act as non-executive director in named companies where this appeared necessary and the cause of the original disqualification was unrelated.
As . .
Cited – Powdrill and Another v Watson and Another HL 23-Mar-1995
A receiver of a companies assets, who employed former staff of the company, beyond an initial period of 14 days, becomes personally responsible for their employment contracts, and consequently becomes liable for making redundancy payments. The 1870 . .
Cited – Moriarty v Regent’s Garage and Engineering Co Ltd CA 2-Jan-1921
Whilst the point was obiter in this case: ‘ . . it seems to me that there is no decision binding on the Court of Appeal as to whether directors’ fees are salary within the Apportionment Act in the case where the agreement . . is simply for payment . .
Cited – Re William Porter and Co Ltd 1937
. .
Cited – Treacy v Corcoran 1874
(Irish Court of Common Pleas) The holder of a public office as Clerk of the Crown was entitled to be paid half yearly. During the course of a half year the plaintiff, Treacy, had resigned from that office. At the end of the half year the salary for . .

Cited by:
Cited – Fulham Football Club (1987) Ltd v Tigana CA 19-Jul-2005
The defendant had acted as manager of the claimant. The claimant appealed dismissal of its claim for breach of contract and of fiduciary duty, and his claim for payment of sums due under share options granted to him.
Held: The appeal failed. . .
Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .

Lists of cited by and citing cases may be incomplete.

Company, Employment

Updated: 29 November 2021; Ref: scu.215858

McCarthy v Jaguar Cars Ltd: EAT 15 Nov 2013

EAT Disability Discrimination : Reasonable Adjustments – Claimant disabled employee on long term absence with depression. Redundancy situation. Selection for redundancy based on scores from assessment against detailed criteria. Claimant selected and dismissed. Claims unfair dismissal, direct disability discrimination and failure to make reasonable adjustments. Employment Tribunal finds fair process and procedure applied in genuine redundancy situation. Employer conceded scoring criteria would put Claimant at a substantial disadvantage. Made reasonable adjustment by applying criteria only to his pre-disablement employment record.
All claims dismissed.
Appeal on basis of failure to identify and strictly apply the approach to reasonable adjustment cases set out in Rowan v Environment Agency.
Appeal DISMISSED.
ET had expressly identified the PCP as the scoring criteria. Pool of comparators was obvious (others facing redundancy to whom same PCP applied but not disabled by depression). All parties knew of the concession that the PCP would put Claimant at substantial disadvantage. ET dealt fully with the real question in the case – did the adjustment remove the disadvantage – and gave sound reasons for finding that it did.

Luba QC
[2013] UKEAT 0320 – 13 – 1511
Bailii
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.520032

Tavistock and Summerhill School and Another v Richards and Others: EAT 4 Dec 2013

EAT Redundancy : Definition – CONTRACT OF EMPLOYMENT – PRACTICE AND PROCEDURE – Perversity – Definition of redundancy; reason for dismissal at EDT. Determining the terms of a contract of employment. See Autoclenz v Belcher. Perversity. Inconsistent findings as to term dealing with additional pay.

Peter Clark J
[2013] UKEAT 0244 – 13 – 0412
Bailii
England and Wales
Citing:
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 November 2021; Ref: scu.520041

Anderson v Cheltenham and Gloucester Plc: EAT 5 Dec 2013

EAT Practice and Procedure : Costs – Claimant failed to beat earlier Calderbank offer at remedy stage. Employment Tribunal made costs order against her limited to andpound;10,000. On consideration of EAT authorities, EAT concluded that ET had failed to take into account relevant factors. Having done so, costs order set aside and appeal allowed. – Observations made about setting off costs order against compensatory award.

Pdeter Clark J
[2013] UKEAT 0221 – 13 – 0512
Bailii
England and Wales

Employment, Costs

Updated: 28 November 2021; Ref: scu.520037

Moran and Others v Ideal Cleaning Services Ltd and Another: EAT 13 Dec 2013

EAT Jurisdictional Points : Agency Relationships – The Appellants were employed for many years by the first Respondent but placed to work as agency workers at the premises, and under the supervision, of the second Respondent or its predecessor. They sought to argue that they qualified for protection under the Agency Workers Regulations 2010. They contended first that the Employment Tribunal had misconstrued the word ‘temporary’ in the Regulations to mean ‘short term’ rather than ‘not permanent.’ They also contended that, in any event, all agency workers who meet a 12 week qualification period fall within the scope of the Regulations and that this interpretation was required in order to give effect to Directive 2008/104/EC.
Held, (1) The Employment Tribunal had not erred in its interpretation of ‘temporary’ and had correctly understood it to mean ‘not permanent.’ It had been entitled on the evidence before it to conclude that the Appellants were all placed permanently with the second Respondent and were not temporary agency workers.
(2) The Appellants’ submission that all agency workers who meet the 12 week qualification period fall within the scope of the Regulations was wrong because it would give no meaning or effect to the word ‘temporary’ at all. Far from giving effect to the purpose of the underlying Directive, that approach would be contrary to that purpose.

Singh J
[2013] UKEAT 0274 – 13 – 0312, [2013] UKEAT 0274 – 13 – 1312
Bailii, Bailii
Directive 2008/104/EC, Agency Workers Regulations 2010
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520039

Grace v Places for Children: EAT 5 Nov 2013

EAT Religion or Belief Discrimination – Whether Employment Tribunal entitled to find that C was not dismissed or treated less favourably because of her religion – on the facts, it was. There is, however, no clear dividing line between holding and manifesting a religious belief, as para 2.61 of the EHRC Code 2011 makes clear.

Mitting J
[2013] UKEAT 0217 – 13 – 0511
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520028

Z v A: EAT 12 Nov 2013

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – The Police reported to a school that an allegation had been made of historical sex abuse by the Claimant school caretaker (outside, and before, his employment). Though disbelieving, the Head suspended the Claimant whilst investigations continued. After about a year, the Head decided to recommend dismissal to the Governors, though nothing further had happened to support the allegation, the accuser’s mental state was being assessed, those witnesses whom the accuser had identified as supporting his claims in fact did not do so, and it was said that a decision as to whether to charge the Claimant or not would be made within the immediate future. The Governors dismissed, and on appeal that was upheld, on the basis that even if the Claimant were exonerated the fact of the allegation alone should have that result. Their principal concerns were the risk to children, and to the school reputation. An ET held that the dismissal was unfair, both substantively (the reason did not amount to some other substantial reason of a kind justifying dismissal) and procedurally, and awarded compensation. In assessing the award, it did not regard the Claimant as entitled to damages to the extent that post-dismissal depression had prevented him from obtaining work.
An appeal against the liability decision was rejected, since this was a factual assessment and was not perverse; none of the other grounds of appeal was made out.
The Claimant cross-appealed as to remedy, arguing that the Judge should have linked the depression to the dismissal. This too was rejected, since the Judge had been entitled to hold that the burden of proof (of showing that the dismissal caused or contributed to the depression) had not been satisfied.

Langstaff P J
[2013] UKEAT 0203 – 13 – 1211
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520036

Langford v East Sussex County Council: EAT 12 Nov 2013

EAT Unfair Dismissal : Reasonableness of Dismissal – MATERNITY RIGHTS AND PARENTAL LEAVE – The decision of the Employment Tribunal that the dismissal of the Claimant for redundancy was fair was based on an erroneous view of the content of jobs that may have been available to be offered to her. Further, in assessing the fairness of her dismissal, the ET failed to consider whether or reached a perverse conclusion that there had been adequate consultation with the Claimant. The dismissal by the majority of the claim under Regulation 10 of the Maternity and Parental Leave Regulations etc 1999 was undermined by the misapprehension of the content and availability of alternative posts.

Slade J
[2013] UKEAT 0275 – 13 – 1211
Bailii
Maternity and Parental Leave Regulations etc 1999 10
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520030

Sattar v Speyhill Ltd and Another: EAT 13 Nov 2013

EAT Transfer of Undertakings : Continuity of Employment – TUPE. The claimant claimed that his employment had been transferred from one employer to another, and that the TUPE regulations applied. The respondent argued that he was self employed. Held that the ET had not erred in law in deciding that the claimant was self employed and that the regulations did not apply. The weight to put on evidence, and the decision that evidence was credible, was a matter for the ET.

Lady Stacey
[2013] UKEAT 0030 – 13 – 1311
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520035

Mangalore v London School of Economics and Political Science: EAT 1 Nov 2013

EAT Victimisation Discrimination – Although allegations of victimisation were made under section 27 of the Equality Act 2010 the Employment Tribunal had directed itself in terms of a comparator as if the case had been brought pursuant to section 2 of the Race Relations Act 1976. Whilst this was an apparently erroneous approach in fact the comparative approach had not really been used and the Employment Tribunal having asked itself why the Appellant had not been appointed had concluded that her rejection had not been because she had previously brought discrimination proceedings against the Respondent. This was a case where despite any misdirection the Employment Tribunal had been plainly and unarguably right as to the outcome (see Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329). Although the misdirection was similar to that in Woodhouse v West Northwest Homes Leeds Ltd UKEAT 0007/12/SM the latter was distinguishable on its facts. The appeal was dismissed.

Hand QC
[2013] UKEAT 0233 – 13 – 0111
Bailii
Equality Act 2010 27, Race Relations Act 1976 2
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.520031

Portnykh v Nomura International Plc: EAT 5 Nov 2013

EAT Practice and Procedure : Admissibility of Evidence – The Employment Judge had misdirected herself on the ‘without prejudice’ rule. She had looked only in the correspondence itself for an actual ‘dispute’ and by failing to consider the factual matrix in which the correspondence arose she had misdirected herself by excluding the possibility of ‘a potential dispute’. Alternatively, even confining the issue to the actual correspondence, she had misdirected herself as to ‘dispute’; that does not need to be extant litigation nor a hostile atmosphere only the potential for litigation. In a further alternative the conclusion that there was no ‘dispute’ was one that no reasonable tribunal could have arrived at on the evidence before it (Unilever plc v The Procter and Gamble Co [2000] 1 WLR 2436; PNB Paribas v Mezzotero [2004] IRLR 508; Framlington Group Ltd v Barnetson [2007] IRLR 598; Ofulue v Brossert [2009] 1 AC 990 considered and applied). It was unnecessary to consider the extent to which the ‘without prejudice’ rule might rest on ‘negotiation’ alone in the absence of any ‘dispute’.
She had also misdirected herself as to the concept of ‘unambiguous impropriety’. Although helpful guidance is to be found in decisions of this Tribunal in PNB Paribas v Mezzotero [2004] IRLR 508 and Woodward v Santander UK plc [2010] IRLR 834 the principle underlying, and the nature of, that exception is identified in the judgment of Rix LJ in Savings and Investment Bank Limited (in liquidation) v Finken [2004] 1 WLR 667 and it must always be considered whenever the exception is raised. In this case the Employment Judge identified only the disadvantage that the Respondent might suffer and confused that with the abuse of the privileged position necessary before the ‘unambiguous impropriety’ exception can apply.

Judge Hand QC
[2013] UKEAT 0448 – 13 – 0511
Bailii
England and Wales
Cited by:
Cited – Horizon Security Services Ltd v Ndeze and Another EAT 18-Jun-2014
EAT Practice and Procedure : Disclosure – Costs – On an application under rule 34A(2A) EAT Rules 1993, as amended, the EAT has a broad discretion to make a costs order in favour of a successful Appellant in the . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 November 2021; Ref: scu.520033

Stephens v Kingston University Higher Education Corporation: EAT 10 Dec 2013

EAT Jurisdictional Points : Extension of Time: Reasonably Practicable – Extension of time: just and equitable – FIXED TERM REGULATIONS – Time limits. Employment Judge entitled to conclude that claims under Employment Rights Act 1996 made 5.5 years out of time should not proceed. Even if not reasonably practicable to present them within time, they were not presented within a reasonable time thereafter.
However, in rejecting a claim under the Fixed-Term Employees Regulations 2002 on the basis that it was limited to a victimisation claim under reg. 6 the EJ overlooked a potential complaint under reg. 3.
The question of just and equitable extension under reg. 7(3) remitted to same EJ for determination.

Peter Clark J
[2013] UKEAT 0288 – 13 – 1012
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520040

Kelly v Secretary of State for Justice: EAT 25 Nov 2013

EAT Maternity Rights and Parental Leave : Return To Work – The Tribunal appears to have concluded, in relation to Regulation 18 of the Maternity and Paternal Leave Regulations 1999, that because the contract of employment of the Appellant, a Prison Mental Health Lead, described her as a Prison Officer, therefore it must be suitable and appropriate for her to return from maternity leave (after outsourcing of the prison mental services) to be an ordinary prison officer. Remitted for the issue, whether the job offered was suitable and appropriate, to be considered.

Burton J
[2013] UKEAT 0227 – 13 – 2511
Bailii
Maternity and Paternal Leave Regulations 1999 18
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520029

Akanu Otu v Secretary of State for Justice: EAT 14 Nov 2013

EAT Practice and Procedure : Striking-Out/Dismissal – Strike out of part of a claim following non-payment of a deposit within the time required by a Deposit Order (DO). Appeal listed to be heard (jointly with another) because the grounds permitted to proceed to full hearing raised issues of potential importance as to the start date for the calculation of the time to pay allowed by the DO and whether despatch of a cheque by post two clear days before the time limit might be deemed delivery of ‘payment’ of the deposit in time.
In the event, those broader grounds not pursued. Instead, the claimant argued only a narrow point that an application to review the striking-out order should have been allowed on the specific facts (and its rejection at a preliminary stage was perverse) or that the application for review should have been treated as an application to extend time retrospectively for payment of the deposit (and not to have so treated it was perverse)
HELD: given the experience that the Employment Judge already had from his prior case management of the claim, and given the terms in which the review application was expressed, it was not possible to say his decision to assess the application for review as having no real prospect of success was perverse. Likewise, the terms of the application for review (made by solicitors) could not reasonably be construed as an application to extend time and it was not perverse for the Judge not to exercise that power of his own motion.
Failure to give early notice to the Respondent of his change of tack – in relation to the points to be argued on the appeal – led to an award of costs.

Recorder Luba QC
[2013] UKEAT 0295 – 13 – 1411
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520024

A v Z: EAT 12 Nov 2013

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason – The Police reported to a school that an allegation had been made of historical sex abuse by the Claimant school caretaker (outside, and before, his employment). Though disbelieving, the Head suspended the Claimant whilst investigations continued. After about a year, the Head decided to recommend dismissal to the Governors, though nothing further had happened to support the allegation, the accuser’s mental state was being assessed, those witnesses whom the accuser had identified as supporting his claims in fact did not do so, and it was said that a decision as to whether to charge the Claimant or not would be made within the immediate future. The Governors dismissed, and on appeal that was upheld, on the basis that even if the Claimant were exonerated the fact of the allegation alone should have that result. Their principal concerns were the risk to children, and to the school reputation. An ET held that the dismissal was unfair, both substantively (the reason did not amount to some other substantial reason of a kind justifying dismissal) and procedurally, and awarded compensation. In assessing the award, it did not regard the Claimant as entitled to damages to the extent that post-dismissal depression had prevented him from obtaining work.
An appeal against the liability decision was rejected, since this was a factual assessment and was not perverse; none of the other grounds of appeal was made out.
The Claimant cross-appealed as to remedy, arguing that the Judge should have linked the depression to the dismissal. This too was rejected, since the Judge had been entitled to hold that the burden of proof (of showing that the dismissal caused or contributed to the depression) had not been satisfied.

Langstaff J P
[2013] UKEAT 0380 – 13 – 1211
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520022

Smith v Carillion (JM) Ltd and Another: EAT 17 Jan 2014

EAT Contract of Employment : Whether Established – VICTIMISATION DISCRIMINATION
Health and safety
Other forms of victimisation
It is a prerequisite of the right under the Trade Union and Labour Relations (Consolidation) Act 1992 section 146 or under the Employment Rights Act 1996 of an employee not to have action short of dismissal taken against him by his employer respectively by reason of his trade union or health and safety activities that there is a contract between him and his employer. The requirement also applied when the protection under TULR(C)A section 146 was extended by amendment with effect from 1 October 2004 to ‘workers’ after the material dates in this appeal. The common law principles applicable to ascertaining whether a contract was to be implied between the employee or worker and the end-user of his services in an agency agreement were those generally applied to all contracts Tilson v Alstrom Transport [2011] IRLR 169 para 8 applied. The Human Rights Act 1998 and Convention rights do not require or permit the implication of a contract between an agency worker and the end-user of his services in circumstances in which domestic law would not. In deciding whether such a contract is to be inferred in a tripartite agency agreement the test of whether it is necessary before implying such a contract continues to be applicable where the facts would be equally explicable without the implication of such a contract. James v London Borough of Greenwich [2008] ICR 302 and Tilson applied.
The Employment Tribunal did not err in holding on the facts before them that no contract between the Claimant and the Respondent end-user had been established.

Slade J
[2014] UKEAT 0081 – 13 – 1701
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 146, Employment Rights Act 1996
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520021

Ahmadi- Assalemi v NCR Ltd: EAT 14 Nov 2013

EAT Practice and Procedure : Striking-Out/Dismissal – Strikeout of a race discrimination claim, following non-payment of a deposit required by a Deposit Order (DO). Appeal listed to be heard (jointly with another) because the sole amended ground, permitted to proceed to full hearing, raised issues of potential importance as to the interface between the time to pay allowed by the DO and time limits for review/appeal.
In the event that ground not pursued.
Instead, the Claimant argued (with permission) only that the particular DO was defective in law because on its face it did not expressly state that strike out would be the sanction for non-payment. Consequently, the strike out order could not have been properly made given the invalidity of the DO.
HELD: there was no deficiency in the DO. It used the language used in rule 20(1). It made it clear that unless the deposit was paid, the Claimant could not continue with the claim. There was no requirement in the rules or anywhere else that a DO must set out that the way that effect would be achieved was by the legal mechanism of striking out.
Failure to give notice to the Respondent of this change of tack – in relation to the points to be argued on the appeal – until after the start of the hearing led to an award of costs.

Recorder Luba QC
[2013] UKEAT 0297 – 13 – 1411
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.520023

Chatfeild-Roberts v Phillips and Another: EAT 4 Sep 2018

JURISDICTIONAL POINTS – Worker, employee or neither An Employment Judge was entitled to find, on the evidence before him, that a live-in carer who had worked for the First Respondent for over 3 years, being paid in full for the limited leave which she took, and having no residence other than the premises in which she carried out her duties, had the status of an ’employee’ notwithstanding that she was paid gross, and paid tax and NI contributions herself.
There are common-sense limits to the ‘intense scrutiny’ which can be applied to a scenario in which neither party had discussed the question of payment for leave and sickness absence, particularly where no sick leave had been taken over the entire period. The Judge’s findings were open to him on the evidence and demonstrated no error of law.

[2018] UKEAT 0049 – 18 – 0409
Bailii
England and Wales

Employment

Updated: 28 November 2021; Ref: scu.632226

Association De Mediation Sociale v Union Locale Des Syndicats CGT: ECJ 15 Jan 2014

ECJ Social policy – Directive 2002/14/EC – Charter of Fundamental Rights of the European Union – Article 27 – Subjecting the setting up of bodies representing staff to certain thresholds of employees – Calculation of the thresholds – National legislation contrary to European Union law – Role of the national court

[2014] All ER (EC) 501, [2014] EUECJ C-176/12, ECLI:EU:C:2014:2, [2014] WLR(D) 2, [2014] IRLR 310, [2014] 2 CMLR 41, [2014] ICR 411
Bailii
Charter of Fundamental Rights of the European Union 27
European
Cited by:
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Human Rights, Employment

Updated: 28 November 2021; Ref: scu.519960

Frederic Hay v Credit Agricole Mutuel De Charente-Maritime Et Des Deux-Sevres: ECJ 12 Dec 2013

ECJ Directive 2000/78/EC – Equal treatment – Collective agreement which restricts a benefit in respect of pay and working conditions to employees who marry – Exclusion of partners entering into a civil solidarity pact – Discrimination based on sexual orientation

C-267/12, [2013] EUECJ C-267/12
Bailii
Directive 2000/78/EC

European, Discrimination, Employment

Updated: 27 November 2021; Ref: scu.518963

Hovis Ltd v Louton: EAT 22 Nov 2021

Hearsay Evidence Must be Considered

The claimant in the employment tribunal worked for the respondent as a delivery lorry driver. A manager, Mr S, reported that, when driving his car on the motorway, accompanied by his wife, both of them had seen the claimant driving his van on the same stretch of motorway and smoking at the wheel.
Following an internal disciplinary investigation and process the claimant was found to have been smoking whilst driving, which was a serious breach of the respondent’s procedures, and dismissed.
The tribunal found that the claimant was not unfairly dismissed. He did not appeal or cross-appeal from that decision. The tribunal upheld the claimant’s claim of wrongful dismissal. The respondent appealed from that decision.
At the hearing in the employment tribunal the claimant gave evidence in person and denied that he had been smoking. Neither Mr S nor Mrs S gave evidence to the tribunal. The tribunal concluded that it therefore could not find as a fact that the claimant had been smoking. The tribunal erred by concluding that, in the absence of either Mr or Mrs S giving evidence in person, it was precluded from making such a finding; and by failing to evaluate the hearsay evidence of the statements that had been gathered from the Ss in the internal investigation.
The appeal was allowed.

Auerbach HHJ
[2021] UKEAT 2020-000973
Baiolii
England and Wales

Employment

Updated: 27 November 2021; Ref: scu.670055

Akhter v Family Services Unit: EAT 20 May 1996

[1996] UKEAT 1285 – 95 – 2005
Bailii
England and Wales
Citing:
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 November 2021; Ref: scu.208347

De Brito Sequeira Carvalho v Commission (Staff Regulations): ECJ 13 Dec 2006

Europa Par requete parvenue au greffe du Tribunal de premiere instance des Communautes europeennes le 4 avril 2005 par telecopie (le depot de l’original etant intervenu le 11 avril suivant), M. de Brito Sequeira Carvalho demande, notamment, au Tribunal de constater l’inexistence de la decision de la Commission des Communautes europeennes du 18 juin 2004 le placant en conge de maladie d’office pour une duree de trois mois, d’annuler tous les actes ulterieurs qui se referent cette decision, la confirment ou visent en prolonger les effets ainsi que de condamner la Commission reparer les prejudices materiel et moral que la decision du 18 juin 2004 a causes sa famille et lui-meme.

F-17/05, [2006] EUECJ F-17/05
Bailii
European

Employment

Updated: 27 November 2021; Ref: scu.247372

Gallop v Newport City Council: CA 11 Dec 2013

An employer was not absolutely bound by the views of an Occupational Health Practitioner.

Longmore, Rimer LJJ, Sir John Mummery
[2013] EWCA Civ 1583
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
Leave – Gallop v Newport City Council CA 31-Jan-2013
Application for leave to appeal – allowed. . .

Cited by:
Cited – Stoke On Trent City Council v Savigar (Debarred) EAT 15-May-2015
EAT Unfair Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Though the Claimant’s complaint was that . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518905

Senator Hotels Ltd v Ratkowski: EAT 5 Dec 2013

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity
The employer, a company, failed to provide a witness statement for the hearing of an unfair dismissal claim. There were disputed issues of fact as to the manner in which the Tribunal dealt with the claim – including in particular (1) whether the Tribunal offered the company’s director an opportunity to give oral evidence, (2) whether the director offered to give oral evidence, (3) whether the Employment Judge told the director that the company would lose without a witness statement, (4) whether the reason for dismissal was conceded by the Claimant. These issues were resolved in favour of the Claimant. In particular the Tribunal did offer the company’s director an opportunity to give evidence and explained that without evidence the company would be likely to lose the case. Held, applying Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 (especially paragraphs 28 and 36) and Radakovits v Abbey National plc [2010] IRLR 307 (especially paragraph 24) that the Tribunal had acted properly and was not in breach of any legal duty.

David Richardson J
[2013] UKEAT 0318 – 12 – 0512
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518799

Rooney v Dundee City Council: EAT 5 Dec 2013

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 – 0512
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518797

Z v A: EAT 9 Dec 2013

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason
The Police reported to a school that an allegation had been made of historical sex abuse by the Claimant school caretaker (outside, and before, his employment). Though disbelieving, the Head suspended the Claimant whilst investigations continued. After about a year, the Head decided to recommend dismissal to the Governors, though nothing further had happened to support the allegation, the accuser’s mental state was being assessed, those witnesses whom the accuser had identified as supporting his claims in fact did not do so, and it was said that a decision as to whether to charge the Claimant or not would be made within the immediate future. The Governors dismissed, and on appeal that was upheld, on the basis that even if the Claimant were exonerated the fact of the allegation alone should have that result. Their principal concerns were the risk to children, and to the school reputation. An ET held that the dismissal was unfair, both substantively (the reason did not amount to some other substantial reason of a kind justifying dismissal) and procedurally, and awarded compensation. In assessing the award, it did not regard the Claimant as entitled to damages to the extent that post-dismissal depression had prevented him from obtaining work.
An appeal against the liability decision was rejected, since this was a factual assessment and was not perverse; none of the other grounds of appeal was made out.
The Claimant cross-appealed as to remedy, arguing that the Judge should have linked the depression to the dismissal. This too was rejected, since the Judge had been entitled to hold that the burden of proof (of showing that the dismissal caused or contributed to the depression) had not been satisfied.

Langstaff P
[2013] UKEAT 0203 – 13 – 0912
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518800

Olaleye v Liberata UK and Others: EAT 9 Dec 2013

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 – 0912
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518796

Chauhan v DDG Windows: EAT 5 Dec 2013

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 – 0512
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518795

A v Z: EAT 9 Dec 2013

EAT The Police reported to a school that an allegation had been made of historical sex abuse by the Claimant school caretaker (outside, and before, his employment). Though disbelieving, the Head suspended the Claimant whilst investigations continued. After about a year, the Head decided to recommend dismissal to the Governors, though nothing further had happened to support the allegation, the accuser’s mental state was being assessed, those witnesses whom the accuser had identified as supporting his claims in fact did not do so, and it was said that a decision as to whether to charge the Claimant or not would be made within the immediate future. The Governors dismissed, and on appeal that was upheld, on the basis that even if the Claimant were exonerated the fact of the allegation alone should have that result. Their principal concerns were the risk to children, and to the school reputation. An ET held that the dismissal was unfair, both substantively (the reason did not amount to some other substantial reason of a kind justifying dismissal) and procedurally, and awarded compensation. In assessing the award, it did not regard the Claimant as entitled to damages to the extent that post-dismissal depression had prevented him from obtaining work.
An appeal against the liability decision was rejected, since this was a factual assessment and was not perverse; none of the other grounds of appeal was made out.
The Claimant cross-appealed as to remedy, arguing that the Judge should have linked the depression to the dismissal. This too was rejected, since the Judge had been entitled to hold that the burden of proof (of showing that the dismissal caused or contributed to the depression) had not been satisfied.

Underhill P
[2013] UKEAT 0380 – 13 – 0912
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518794

Mayor and Others v The estate in abeyance of Rafael de las Heras Davila and Sagrario de las Heras Davila: ECJ 10 Dec 2009

ECJ Reference for a preliminary ruling – Protection of workers – Collective redundancies – Directive 98/59/EC – Termination of contracts of employment as a result of the death of the employer

[2009] EUECJ C-323/08, C-323/08
Bailii
Directive 98/59/EC
Citing:
Opinion – Mayor and Others v The estate in abeyance of Rafael de las Heras Davila and Sagrario de las Heras Davila ECJ 16-Jul-2009
ECJ Opinion – Directive 98/59/EC – Collective redundancies – Meaning – Termination of an employment contract following the death, retirement or incapacity of the employer. . .

Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 26 November 2021; Ref: scu.518783

Dunn v Estee Lauder Cosmetics Ltd: EAT 8 Oct 2013

EAT PRACTICE AND PROCEDURE – Costs
Abusive and threatening e-correspondence accompanied an application to an Employment Tribunal for unpaid wages, where the basis for claiming underpayment was never clearly set out, and when the matter was heard evidence as to how the employer had calculated payments was not challenged, although assertions were made by the Claimant’s representative in an unspecific manner about the propriety of the payments. The Employment Judge rejected the claims, and awarded costs. An appeal alleged that the EJ had behaved unprofessionally and was accompanied by abusive and threatening emails against the employer and its lawyers. Though giving a clear warning as to costs, HHJ Shanks allowed the claim to proceed so that the Respondents could respond to the allegations, and the EJ comment. After they had done, and some two weeks before the appeal, it was withdrawn. But the Respondent then asked for costs. The Claimant asked that this be considered at an oral hearing, for which she then failed to turn up though it was found she or her representative knew of it, and it was proper to proceed. The EAT was satisfied that the conduct came within rule 34A EAT rules, and that it ought to make an order, but moderated the amount within r.34B so as to be considerably less than claimed.

Langstaff P J
[2013] UKEAT 0392 – 12 – 0810
Bailii
England and Wales

Employment, Costs

Updated: 26 November 2021; Ref: scu.518724

Rustamova v Calder High School: EAT 14 Nov 2013

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke – Case remitted to same Employment Tribunal for Meek compliant reasons, the original ET decision being that of the majority lay members, by first EAT.
Further reasons then produced, following a further ET hearing and signed by lay members but not the Employment Judge. No Judgment/reasons complying with requirement they should be signed by EJ (ET Rules 2004, rr29(1); 30(4)).
Case sent back under Burns-Barke procedure for further reasons to be drafted and signed by EJ, with approval of lay members.

Peter Clark J
[2013] UKEAT 0214 – 13 – 1411
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518726

Stroud Rugby Football Club v Monkman: EAT 21 Oct 2013

EAT Unfair Dismissal : Compensation
The Employment Judge had not erred in concluding that if there had been a proper procedure followed, in the context of the factual matrix of a Rugby Club the probability was the Claimant would have accepted a job share. This was a question of fact (see paragraphs 7 and 12 of the judgment of Bean J in Lionel Leventhal Ltd v Mr J North UKEAT/0265/04/MAA). Likewise there was no error of law in Employment Judge not having adopted a percentage chance basis of assessing future loss.

Hand QC J
[2013] UKEAT 0143 – 13 – 2110
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518725