EAT Practice and Procedure : Appellate Jurisdiction/Reasons/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 – 0412
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518728

EAT Jurisdictional Points : Worker, Employee or Neither – Whether person unequivocally classified in written contract as in business on his own account was a ‘worker’ as defined by the Working Time Regulations 2008.

Mitting J
[2013] UKEAT 0330 – 13 – 0412
Bailii
Working Time Regulations 2008
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518727

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

Hand QC J
[2013] UKEAT 0438 – 12 – 0312
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518587

EAT RACE DISCRIMINATION – Vicarious liability
The Employment Tribunal failed to ask itself the correct questions in deciding whether Redbridge acted as agent of Remploy, whether on the basis of implied prior authority or ratification subsequent to the act complained of.
Thus, the ET failed properly to address all the issues it was required to address in order properly to answer the question whether Remploy was jointly liable pursuant to s 32(2) of the Race Relations Act for Redbridge’s discriminatory acts.

Wilkie J
[2013] UKEAT 0550 – 12 – 1911
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518541

EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
1. The Claimant’s unfair dismissal and discrimination claims were struck out, as being out of time.
2. She was summarily dismissed on 06.07.11. That information was sent to the Claimant’s solicitor by e-mail that day. She informed the Claimant on the next day and advised her to appeal. A letter to the Claimant confirming the dismissal was not seen by her until 08.07. The Employment Judge held that the effective date of termination was 07.07. Held that the EJ had not erred in law; the principle in Gisda Cyf v Barrett ([2010] ICR 1475) that dismissal is not effective until the employee knows of it or has had a reasonable opportunity to do so did not operate so as to exclude communication of the dismissal to the employee by a third party – in this case her instructed solicitor.
3. It was accepted on appeal that the last act of discrimination was more than 3 months before the claim was presented; the issue was whether the EJ had erred in law in declining to extend time on the just and equitable basis. Held that the EJ had erred in law in not taking into account the principle in Virdi ([2007] IRLR 24) that the sins of the Claimant’s solicitor in this context are not to be visited on the Claimant. Virdi had not been cited to her; but the point was not said not to have been taken. The delay was attributable to the solicitor; a finding that time should be extended was substituted.

Burke QC J
[2013] UKEAT 0313 – 12 – 2011)
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518542

EAT TRANSFER OF UNDERTAKINGS – Transfer
The Employment Judge held that there was a service provision change within the meaning of Regulation 3(1)(b)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 therefore a transfer of an undertaking when the client gave the contract for the work of cladding boilers at a power station to a new contractor. The application of Regulation 3(3)(a)(ii) in the circumstances required findings by the Employment Judge on (1) the intention of the client at the time of the alleged service provision change; (2) whether the activities to be carried out by the new contractor were in connection with a single specific event or in connection with a task, identifying what that event or task was; (3) whether the single specific event or task was of short- term duration. The Employment Judge erred in failing to consider and decide the intention of the client at the time of the change of contractor. The Employment Judge also erred in deciding whether the ‘event’, as she held it to be, of the insulation and cladding of the boilers was short-term by reference to how long cumulatively the outgoing contractor together with the incoming contractor spent on the work. Where there is no evidence of intention, applying SNR Denton UK LLP v Ms Kirwan and others [2013] ICR 101, it may be implied from ‘the event’. However, in this case, it appears that there was evidence likely to have been relevant to whether the client intended at the time the new contractor was engaged that their activities would be in connection with a task of short-term duration.
Dicta of Langstaff P in SNR Denton that ‘of short-term duration’ in Reg 3(3)(a)(ii) qualify ‘event’ as well as ‘task’ preferred to those of Lady Smith in Liddell’s Coaches v Cook and others UKEAT/0025/12 that they do not.
Appeal allowed. Case remitted to a different Employment Judge.

Slade DBE J
[2013] UKEAT 0056 – 13 – 1311
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518544

EAT Practice and Procedure : Postponement or Stay – Whether Employment Judge fell into error, as a matter of case management, in refusing to stay Employment Tribunal proceedings, which were complete subject to a further remedy hearing following remission by EAT, pending the outcome of High Court proceedings between the same parties. Answer; no.

Peter Clark J
[2013] UKEAT 0461 – 13 – 2510
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518535

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

Jeffrey Burke QC
[2013] UKEAT 0249 – 13 – 2911
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518545

EAT JURISDICTIONAL POINTS – Worker, employee or neither
This appeal raises the question whether the Claimant, an ordained Minister in the Church of England, was working under a contract of employment, or was a lternatively a ‘worker’ within the meaning of s.43K ERA after he was appointed as Rector in the Teme Valley South Benefice, in the Diocese of Worcester. He presented two claims to the ET, complaining that he had suffered detrimental treatment, as a result of making protected disclosures, and that he was then constructively and unfairly dismissed. After a pre-hearing review the ET held that there was no jurisdiction to determine his claims because there was no contract in existence between the parties and, further, the Claimant did not fall within the statutory definition of ‘worker’.
After oral argument, the appeal was stayed pending the decision of the Supreme Court in Preston/Moore v President of the Methodist Conference. The parties subsequently filed further written submissions on the effect of that decision.
The EAT considered the present state of the law in this area, following Preston, and allowed the appeal, directing that the matter should be remitted for a hearing before a fresh Tribunal in accordance with the legal principles set out in this judgment.

Cox DBE J
[2013] UKEAT 0243 – 12 – 2811, [2014] ICR D9
Bailii
England and Wales
Cited by:
Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 November 2021; Ref: scu.518543

EAT Practice and Procedure : Appearance or Response – Right to be heard
A Respondent submitted a response late (it was sent in what should have been good time, but was sent 2nd class and under stamped). A default judgment followed, but as to liability only. The Respondent was notified of the remedy hearing and told that it could take part. However when the day before the date of the hearing the Respondent’s representative received a statement of the evidence the Claimant proposed to adduce at the hearing, and telephoned the Employment Tribunal, he was told that he could not take part since he was debarred from doing so in consequence of the response being late.
Held that where the rule spoke of not being ‘entitled to take any part in the proceedings’ this did not mean that the Respondent could not do so if invited, and did not preclude the Respondent asking to be permitted to do so. In the circumstances of this case, he would almost certainly have been permitted or invited to participate, even if he could not insist on it as of right, and accordingly a material procedural irregularity had occurred such that the appeal would be allowed.

Langstaff P JJ
[2013] UKEAT 0411 – 12 – 1010
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518536

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – The Employment Tribunal erred in recusing themselves from hearing the Claimant’s applications for a review of the Remedies Judgment to claim exemplary damages and to claim costs. The decision to recuse themselves for ‘a potential conflict of interest’ was not sustainable on the relevant material before them. The Respondent sought to uphold the recusal on grounds of appearance of bias. The Employment Tribunal did not err in rejecting the grounds on which the application was made before them: actual or apparent bias (described by them as ‘future potential for bias’). The relevant facts did not give rise to an appearance of bias. Porter v Magill [2002] 2 AC 357 and Locabail v Bayfield Properties [2000] IRLR 96 applied. In any event the Employment Tribunal erred in recusing themselves before taking reasonable steps to ascertain whether such action was necessary. Guidance in Bennett v Southwark LBC [2002] ICR 881 applied.
Appeal allowed. Case remitted to the same Employment Tribunal.

Slade J
[2013] UKEAT 0027 – 13 – 2111
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518537

EAT Practice and Procedure : Striking-Out/Dismissal – Whether claim properly dismissed on withdrawal. It was not. Appeal allowed and order dismissing claim against second Respondent revoked.

Peter Clark J
[2013] UKEAT 0104 – 13 – 0911
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518539

EAT Unfair Dismissal – The Claimant was dismissed from her senior management post as part of a restructuring, caused by financial problems of the Respondent, in which management posts were reduced from 4 to 2. She appealed on numerous grounds, 5 of which survived to a full hearing, at which all were rejected.
The Employment Tribunal were entitled to find a redundancy situation and that redundancy was the reason for the dismissal, that the Respondent had not acted unreasonably in treating the Claimant as in a pool of one, that there had been adequate consultation and that the reasons were adequate.

Burke QC J
[2013] UKEAT 0492 – 12 – 2811
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518540

EAT Unlawful Deduction From Wages – The Employment Judge correctly held the Claimant did not sign away his rights to a protected payment, and that the employer had made unlawful deductions. MCI Worldcom principles applied.

McMullen QC J
[2013] UKEAT 0593 – 12 – 1909
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518528

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal decided that the employer/Appellant’s decision to dismiss the Claimant for redundancy when a co-worker had volunteered for redundancy was one that no reasonable employer would have taken and was therefore unfair. On a fair reading of the Tribunal’s decision they had not wrongly taken into account the co-worker’s subsequent resignation and their decision was one that was open to them on the facts.

Shanks J
[2013] UKEAT 0045 – 13 – 0507
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518523

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
DISABILITY DISCRIMINATION – Discrimination by other bodies
Local Authority member and chair of a committee, removal as chair – section 58(1) and (4) of the Equality Act 2010.

Supperstone J
[2013] UKEAT 0049 – 13 – 1107
Bailii
Equality Act 2010 58(1) 58(4)
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518521

EAT Disability Discrimination : Reasonable Adjustments – Issue as to whether Claimant was disabled rendered moot by Employment Tribunal’s alternative and sustainable findings that, on the facts, there was no failure by the Respondent to make reasonable adjustments.

Peter Clark J
[2013] UKEAT 0157 – 13 – 1010
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518530

EAT Disability Discrimination – Decision to dismiss disabled employee for gross misconduct committed at a time when she was not disabled. Dismissal unfair, as disproportionate and for procedural reasons. Whether employer also required not to dismiss then or at all because of effect on Claimant’s disability (which affected her mental health and well-being) because of the effect on her mental health. No.

Mitting J
[2013] UKEAT 0138 – 13 – 2410
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518533

EAT Unfair Dismissal – Claim in time – effective date of dismissal – reasonable practicability
The Employment Judge erred in law in her approach to the question of reasonable practicability – in particular, failing to make necessary findings as to whether advice received by the Claimant from solicitors as to the date of expiry of the time limit was or was not negligent. Northamptonshire County Council v Entwistle [2010] IRLR 741 – and the many authorities there summarised – applied.
The Employment Judge did not make a finding as to the effective date of dismissal, assuming without deciding that the effective date of dismissal was more than 3 months prior to the issuing of the claim form. On remission such a finding would be essential: it was not self evident that the effective date of dismissal was more than 3 months prior to the issuing of the claim form.

David Richardson J
[2013] UKEAT 0159 – 13 – 0509
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518524

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal due to redundancy. The Claimants were made redundant by the Respondents along with four other employees. All six made claims of unfair dismissal. The Employment Tribunal held that the dismissal of the two Claimants was unfair but that of the dismissal of the other four employees was fair, holding that the Respondents failed to explain the options properly to the Claimants, leaving them no choice but to accept redundancy. The Respondents argued that the ET judgment was perverse as the same explanation had been given to all employees and was adequate. The Claimants argued that the judgment was sufficient in its reasoning and that the appeal should be refused. It was held that the ET judgment was inadequate as it did not explain properly the way in which the decision had been reached. Thus the ET had erred in law. The appeal is allowed and the case remitted to a fresh tribunal to be reheard.

Stacey J
[2013] UKEAT 0058 – 12 – 1406
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518520

EAT Disability Discrimination : Loss/Mitigation – An Employment Tribunal awarded 12 years’ future loss for disability discrimination. It made no error in this factual assessment. It was not obliged to apply the Ogden Tables or the Guidance on pension loss.

[2013] UKEAT 0554 – 12 – 2609
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518526

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The ET3 raised out of time issues; the Respondent did not attend the hearing; and the Tribunal did not consider those issues at all. They went to jurisdiction and had to be considered. Further, although the Respondent did not attend and there were reasons why the Tribunal would want to keep its reasons short, the reasons did not set out what acts of the Respondent amounted to a fundamental breach of contract so as to justify the Claimant in treating herself as constructively dismissed or what acts were found to have constituted discrimination or harassment sufficiently to enable the parties to know why they had won or lost and were not Meek-compliant.
Hence remission for rehearing.

Jeffrey Burke QC J
[2013] UKEAT 0091 – 13 – 1610
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518534

EAT Disability Discrimination : Disability – JURISDICTIONAL POINTS – Extension of time: reasonably practicable
In the middle of the Employment Tribunal hearing the Employment Judge took a point against the Claimant on time-bar. An inadequate opportunity was given to the Claimant to respond. The Respondent had not taken the point in any of the extensive case management stages. The Employment Tribunal misdirected itself by looking for a policy, and should have found the disciplinary process was a continuing act or a state of affairs. EAT held the claim was in time and remitted the full case to a hearing before a different Employment Tribunal.

McMullen QC J
[2013] UKEAT 0047 – 13 – 0509
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518527

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – JURISDICTIONAL POINTS
Worker, employee or neither
Claim in time and effective date of termination
The Claimant’s appeal against the debarring of him in the appeal was really an application for relief from sanctions. Having heard the substantive argument in the appeal, the application was granted as the case raised an important point.
The Claimant changed at his request from a contract of employment and was then engaged on a zero hours contract. The Employment Judge did not make sufficient findings about what the obligations of the parties were under this contract. The appeal was allowed and remitted to the same judge for a further hearing so that the urgent issue of such contracts could be determined.

McMullen QC J
[2013] UKEAT 0051 – 13 – 1909
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518525

[1997] UKEAT 987 – 95 – 1102
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.207260

[1997] UKEAT 256 – 96 – 0502
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.207265

[1997] UKEAT 45 – 97 – 0302
Bailii
England and Wales
Cited by:
See Also – Lardier v British Gas Research and Technology Plc EAT 20-Nov-1998
. .
See also – B G Lardier v British Gas Research and Technology Plc EAT 11-Oct-1999
EAT Unfair Dismissal – Procedural Fairness
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
See also – Lardier v British Gas Research and Technology Plc EAT 5-Mar-2001
. .
See Also – Lardier v British Gas Research and Technology Plc CA 14-Jun-2001
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 November 2021; Ref: scu.207230

EAT Unfair Dismissal : Compensation – Unfair dismissal. The Claimant was dismissed by the Respondent. The Employment Tribunal found the dismissal unfair. On appeal the EAT allowed the appeal finding the dismissal fair. On appeal to the Court of Session the EAT decision was overturned and the ET decision was reinstated. The Respondent had sought to argue that the award made by the ET was excessive. The Court of Session remitted that matter to the EAT who in turn remitted to the ET to decide the matter on the basis of the facts already found. The ET determined a fresh award. The Respondents argued that the ET had failed to carry out the order of the EAT, as they had made fresh findings. Held that the ET had made findings in the second judgment which were contrary to those made by them in the first judgment. Appeal allowed and case remitted to the ET to determine the award in light of the findings made by them in the first judgment.

Lady Stacey
[2013] UKEAT 0010 – 13 – 2106
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517535

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination – A Tribunal accepted it was not reasonably practicable for a Claimant to begin proceedings within 3 months of his dismissal, despite the fact he had entered into detailed email correspondence, and pursued a grievance in respect of related matters during that time, because it was prepared to accept his evidence that he simply became unable to function properly and could not bring himself to do it. It held that it was reasonable for him to delay a further 6 weeks beyond the initial period on the basis it accepted his evidence that he put in an application to the Employment Tribunal as soon as he felt able to do so.
Although reservations were expressed, the Appeal Tribunal held that the conclusion was one of fact, and that (the ET having seen and assessed the Claimant) it could not be said to be perverse and must stand.

Langstaff P J
[2013] UKEAT 0011 – 13 – 0608
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517542

EAT Practice and Procedure : Case Management – DISABILITY DISCRIMINATION – Disability
VICTIMISATION DISCRIMINATION
Detriment
Dismissal
Preliminary hearings by consent converted to full hearings, since both parties in attendance.
The Employment Tribunal did not err in refusing an adjournment for the Claimant to provide additional medical evidence. This was a matter of case management and discretion. Caston applied.
The Employment Tribunal did not err in holding the Claimant was not disabled. She had a mental impairment, but it did not have a substantial adverse effect on her relevant activities.
The Employment Tribunal correctly found the Claimant was not victimised when it found that a comparator who had not raised a disability claim would have been treated in the same way. This approach should have informed the finding in favour of the Claimant of victimisation, which was set aside and a finding made by the EAT that there was no discrimination. The award of compensation was set aside.
The finding of unfair dismissal and compensation was not challenged. Costs orders remain in place.

McMullen QC J
[2013] UKEAT 0986 – 12 – 2409
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517543

EAT Contract of Employment : Whether Established – Implied term/variation/construction of term – REDUNDANCY
An email between senior managers suggested that where key people were to be made redundant, they would be entitled to the same redundancy terms as had been offered in previous redundancies would apply. This was forwarded to the Claimant when he expressed concern about his position. He took it as reassurance, and argued he had accepted the offer which in these circumstances was implicitly contained within it by remaining in post. When then made redundant he sought payment of the 4 weeks pay for each year of service he understood to have been offered to him by this passage of events, rather than the 3 he was paid.
The EJ rejected this on four grounds. It was argued on appeal that one of these was irrelevant, and the other three grounds were materially inconsistent with the findings in fact. These arguments were rejected, it being held that although the judgment was not free from matters of concern, the reasoning was sufficiently clear for the appeal to be dismissed.

Langstaff P J
[2013] UKEAT 0013 – 13 – 0808
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517539

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
It is reasonably arguable that a manager who conducted a disciplinary case, then pursued further investigations and interviews without reverting to the Claimant, acted unfairly.
Observed that the Employment Judge, as is dispiritingly common, wrongly placed the burden of proof on the Respondent, despite the change in Employment Act 1980.

McMullen QC
[2013] UKEAT 0161 – 13 – 0409
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517547

EAT Does the certificate of independent of the trade union given on 27 June 2013, for which the EAT had by statute to stay the instant appeal, provide protection to the Claimant for his activities and membership on 5 May 2010? EAT held it did not have retrospective effect. Permission to appeal granted.
It was not necessary to deal with the substantive merits of the employer’s appeal.

McMullen QC J
[2013] UKEAT 0352 – 12 – 3009
Bailii
England and Wales
Cited by:
Appeal from – Bone v North Essex Partnership NHS Foundation Trust CA 15-May-2014
The claimant said that he was the representative of members of the Workers of England Trade Union at the respondent hospital. He claimed detriment, but the empoyer denied that it was an independent union allowing him protection under the Act. Since . .
See Also – North Essex Partnership NHS Foundation Trust v Bone EAT 10-Jul-2014
EAT Trade Union Rights : Action Short of Dismissal – PRACTICE AND PROCEDURE – Costs
The claimant, a member of WEU an independent trade union, made 21 claims of detriment for taking part in its activities, . .
See Also – Bone v North Essex Partnership NHS Foundation Trust CA 1-Feb-2016
The appellant was a political activist in the ‘Workers of England Union’ and a nurse employed by the respondent. He alleged race discrimination, and detriment for his membership of what he said was an independent trade union, saying that the . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2021; Ref: scu.517545

EAT CONTRACT OF EMPLOYMENT – Damages for breach of contract
PRACTICE AND PROCEDURE – Striking-out/dismissal
The law relating to the construction of the Claimants’ contracts was set out by the EAT in Qantas v Lopez. The Employment Judge erred in law in failing to follow binding precedent and in four other ways.
An Employment Tribunal has no jurisdiction to hear a claim in connection with living accommodation: EJO 1994 Art 5.
The Claimants were debarred and there was no resistance to the EAT determining the Respondent’s strike-out application without remission to the Employment Tribunal. The claims were struck out as having no reasonable prospect and an abuse of process.

McMullen QC
[2013] UKEAT 0318 – 13 – 1009
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517546

EAT Redundancy : Fairness – There was no reason to interfere with the findings on redundancy selection made by the Employment Judge. The now ‘tediously common’ criticisms of judicial conduct were expressly very properly abandoned by counsel instructed after the home-made Notice of Appeal.

McMullen QC J
[2013] UKEAT 0120 – 13 – 2706
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517537

EAT Practice and Procedure : Striking-Out/Dismissal – Postponement or stay
Costs
The Claimant did not attend on day 1 of her 8 day race discrimination hearing. The Employment Tribunal was told by noon she had been taken by ambulance and was in AandE. The Respondent made an application to strike out the claims with costs. No details were provided to the Claimant as to the grounds (which were rule 18(7)(c) and (d)). Her husband said he could not comply with the Employment Tribunal’s requirement that written medical corroboration of the Claimant’s hospitalisation be provided by 2.00pm. The Employment Tribunal struck out the claims and awarded costs of andpound;10,000.
Judgment set aside. The Employment Tribunal failed to deal with the postponement application. It did not send notice as required by rules 18(6) and 19 so the hearing was a nullity. Alternatively the decisions on postponement, strike-out and costs were wholly wrong in principle. Teinaz, Abegaze and O’Cathail applied. On the EAT deciding the issue the claims were restored to a fresh Employment Tribunal for full hearing, the Claimant to pay the Respondent its costs thrown away on day 1 under rule 40(1).

McMullen QC J
[2013] UKEAT 0102 – 13 – 1609
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517544

EAT Unfair Dismissal : Reasonableness of Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments – The Claimant was dismissed by the Respondent. He made a claim for unfair dismissal and for disability discrimination, failure to make reasonable adjustments, and for victimisation and harassment. The Employment Tribunal dismissed his claims. The Claimant argued that the ET had erred in law by making a perverse a finding that he was not disabled when the medical evidence showed that he was. He also argued that he was unfairly dismissed. The EAT found that the ET had evidence before it concerning the Claimant’s medical condition from which it was entitled to infer that he was not disabled. The ET did not err in law in finding the claim of unfair dismissal was not made out.

Lady Stacey
[2013] UKEAT 0018 – 13 – 2006
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517536

EAT UNFAIR DISMISSAL
The Claimant’s appeal against the finding that she had not been unfairly constructively dismissed was refused on the basis of the facts found by the Employment Tribunal. The Employment Tribunal was entitled to conclude that she had not been dismissed at all, nor had she been the subject of sex or race discrimination. A complaint that the judgment failed to give adequate reasons and was not Meek compliant was also rejected on the facts.
When giving judgment Employment Tribunals are well advised to follow the guidance of Buxton LJ in Balfour Beatty Power Networks v Wilcox – [2007] IRLR 63 and recite the terms of rule 30(6) of the 2004 Employment Tribunal (Constitution and Rules of Procedure) Regulations and to indicate serially how their determination fulfils its requirements.

Serota QC
[2013] UKEAT 0348 – 12 – 2305
Bailii
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 30(6)
England and Wales
Citing:
Cited – Balfour Beatty Power Networks Ltd and Another v Wilcox and others CA 20-Jul-2006
Rule 30(6) of the 2004 Rules, which requires sufficient reasons, is intended to be a guide and not a straitjacket so that if it can be reasonably spelled out from a determination that what the rule requires has been provided by the Tribunal, then no . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2021; Ref: scu.517219

EAT UNFAIR DISMISSAL – Constructive dismissal
The Respondent employer refused to permit the Claimant employee to return to work at the agreed date; and the Claimant, after attempting unsuccessfully to pursue a grievance, resigned. The Tribunal found that she was constructively and unfairly dismissed and awarded her compensation which included her loss of earnings from the date at which she should have been permitted to return to work. The Respondent employer sought to amend the notice of appeal to argue that compensation should have run only from date of dismissal (see GAB Robins (UK) Limited v Triggs [2008] ICR 829). In the circumstances permission to amend was refused; there was no substance in the other point taken on appeal, which related to the length of the period of compensation; and the appeal was dismissed.
The Claimant had applied successfully to the Tribunal for a review to correct errors of calculation in her compensation. The Respondent employer sought to renew at the review hearing an argument that compensation should run only from the date of dismissal. The Tribunal refused to entertain that argument.
Held: in the circumstances the Tribunal did not err in law by refusing to entertain a review on the question.

David Richardson J
[2013] UKEAT 0145 – 13 – 2210
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.517226

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
VICTIMISATION DISCRIMINATION
Findings of unlawful victimisation and unfair dismissal upheld. Contrary to the submissions of the Appellants, the Tribunal sufficiently dealt with the issues which it was required to decide and gave proper reasons for doing so.

David Richardson J
[2013] UKEAT 0559 – 12 – 0309
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.517221

EAT DISABILITY DISCRIMINATION – Disability
Employment Tribunal entitled on the evidence to find that the employer had neither actual nor constructive knowledge that the Appellant was disabled. Wilcox v Birmingham Citizens Advice Bureau Services Ltd (2011) UKEAT/0293/10 (unreported) applied.
Neither was the decision perverse.

Birtles J
[2013] UKEAT 0162 – 13 – 2810
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.517223

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal found that the Claimant had been unfairly dismissed. The Respondent argued that the ET had substituted its own view of fairness for that of the Respondent. Held that the ET had substituted its own view; case remitted to a fresh Tribunal to hear again.

Lady Stacey
[2013] UKEAT 0147 – 12 – 0110
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.517224

EAT VICTIMISATION DISCRIMINATION – Protected disclosure
PRACTICE AND PROCEDURE
Striking-out/dismissal
Imposition of deposit
The Employment Judge did not err in law in deciding that the claim should not be struck out: the letter dated 15 October contained ‘information’; and it was a matter for a full hearing whether the information, in the reasonable belief of the Claimant, tended to show that her employer had failed, was failing or was likely to fail to comply with any legal obligation – in particular to comply with its contractual obligations to her.
The Employment Judge had, however, given no reasons at all for concluding that a deposit order ought not to be made. Matter remitted to be considered again – preferably with another outstanding application which required a hearing.

David Richardson J
[2013] UKEAT 0290 – 13 – 2009
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.517222

[1995] UKEAT 810 – 95 – 0610
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.209411

[1997] UKEAT 149 – 96 – 0702
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.207271

Whether former employee bound by restrictive covenant

Simler DBE J
[2013] EWHC 3450 (QB)
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517504

Former employees appealed against rejection of their claims for redundancy payments.

Elias, Kitchin, McCombe LJJ
[2013] EWCA Civ 1388
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.517458

[2000] EWCA Civ 89
Bailii
England and Wales

Employment

Updated: 25 November 2021; Ref: scu.147122

EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, which were upheld by two separate ETs. They appealed on the basis that the plea of immunity denied them access to court to enforce their rights, relying upon the decisions of the ECtHR in Cudak v Lithuania (2010) 51 EHRR 15 and Sabeh el Leil v France 2012) 54 EHRR 14 to establish that this had been in breach of Art.6 ECHR. An argument that the judges (both of whom held there to have been such a breach) were wrong to hold that the State Immunity Act 1978, which provides for the immunity in UK law, could not be interpreted to permit the claims to proceed failed. A second argument, that to the extent the claims fell within the material scope of EU law the SIA should be disapplied, succeeded on the basis that although the HRA dealt with the approach of courts and tribunals to alleged breaches of the ECHR, the EU Charter was now recognised as applicable in the UK, and recognised general principles of fundamental importance to the EU where matters fell within the material scope of EU law. Art.47 of that Charter recognised the same principle as contained in Art.6 ECHR. The Tribunal was bound by EU law (following Kucukdevici [2009] EUECJ C-555/07 and Aklagaren [2013] EUECJ C-617/10) to disapply domestic law in conflict with these principles even in a dispute between private litigants.
Permission to appeal was granted, since the matter would benefit from the consideration of a higher court.

Langstaff P J
[2013] UKEAT 0401 – 12 – 0410
Bailii
England and Wales
Cited by:
At EAT – Benkharbouche and Another v Embassy of The Republic of Sudan CA 5-Feb-2015
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human . .
At EAT – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 November 2021; Ref: scu.516756

EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, which were upheld by two separate ETs. They appealed on the basis that the plea of immunity denied them access to court to enforce their rights, relying upon the decisions of the ECtHR in Cudak v Lithuania and Sabeh el Leil v France to establish that this had been in breach of Art.6 ECHR. An argument that the judges (both of whom held there to have been such a breach) were wrong to hold that the State Immunity Act 1978, which provides for the immunity in UK law, could not be interpreted to permit the claims to proceed failed. A second argument, that to the extent the claims fell within the material scope of EU law the SIA should be disapplied, succeeded on the basis that although the HRA dealt with the approach of courts and tribunals to alleged breaches of the ECHR, the EU Charter was now recognised as applicable in the UK, and recognised general principles of fundamental importance to the EU where matters fell within the material scope of EU law. Art.47 of that Charter recognised the same principle as contained in Art.6 ECHR. The Tribunal was bound by EU law (following Kucukdevici and Aklagaren) to disapply domestic law in conflict with these principles even in a dispute between private litigants.
Permission to appeal was granted, since the matter would benefit from the consideration of a higher court.

Langstaff P J
[2013] UKEAT 0020 – 13 – 0410
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516757

EAT PRACTICE AND PROCEDURE – Review
Default judgment – review – time limit – extension. The Employment Judge entertained an application to revoke a default judgment which was made substantially out of time. He reviewed and revoked the default judgment; but he did so on a false factual basis, and in so far as he considered at all whether it was just and equitable to extend time for the making of the application he also decided that question on a false factual basis.

David Richardson J
[2013] UKEAT 0109 – 13 – 1709
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516749

EAT VICTIMISATION DISCRIMINATION – Interim relief
Secretary of State applied successfully to be substituted as Respondent for dissolved PCT employer. Then contended Employment Tribunal had no jurisdiction to entertain Claimant’s interim relief application in section 103A unfair dismissal claim. The ET declined jurisdiction. Appeal allowed. Case remitted for hearing of application on its merits.

Peter Clark J
[2013] UKEAT 0376 – 13 – 0110
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516758

EAT Wasted costs – Tribunal did not (1) apply or give reasons in respect of the appropriate tests for wasted costs and (2) afford the Appellant an opportunity to respond to substantial written submissions and evidence put in by the Respondents. Value of guidance in Godfrey Morgan Solicitors v Cobalt Systems [2012] ICR 305 emphasised.
Costs and wasted costs – Tribunal did not apply the correct test concerning ability to pay. Arrowsmith v Nottingham Trent University [2012] ICR 159 and Vaughan v London Borough of Lewisham UKEAT/0533/12 applied.

David Richardson J
[2013] UKEAT 0519 – 12 – 2708
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516746

EAT CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Wrongful dismissal – whether Employment Judge applied correct test and reached permissible conclusion.
Held: he did.
Unfair dismissal – whether Employment Judge applied correct test and gave sufficient reasons for his conclusions.
Held: he applied the correct test but gave no sufficient reasons for his conclusions. In effect he did no more than state a conclusion without informing the parties why they lost or won on the key issues in dispute.

Richardson J
[2013] UKEAT 0053 – 13 – 1209
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516747

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
On appeal, it was conceded that the Employment Judge erred in rejecting the Claimant’s claim as he was not an employee or worker, for he can argue he was an agency worker.
It was held that the Claimant’s claim did contain claims for age and race discrimination in respect of the Respondent’s refusal to give him a reference and to appoint him to a vacancy.
The Employment Judge erred in holding the race claim had no reasonable prospects and the case would be restored for a full merits hearing. It is open to the Respondent to restore its application for a deposit order.
The Employment Judge did not err in striking out the age discrimination claims.

McMullen QC J
[2013] UKEAT 0285 – 13 – 0609
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516748

EAT PRACTICE AND PROCEDURE – Permission to appeal further
Permission to appeal was granted. The Secretary of State’s apology for declining to attend hitherto was accepted. There was a compelling reason for permission, including a parallel reference to the CJEU, the importance of the legal issue to industry, and the value of the claims. In the unique circumstances, a condition of permission being granted was the Secretary of State indemnify the Claimants for their reasonable costs in the Court of Appeal.

McMukken QC J
[2013] UKEAT 0547 – 12 – 1009
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516754

EAT UNFAIR DISMISSAL
The Employment Judge erred in law in having regard to subsequent events when reaching her decision that the Claimant was already a disabled person by December 2011 – Richmond Adult Community College v McDougall [2008] ICR 431 applied. Appeal therefore allowed. The Employment Judge was, however, not bound to conclude in the Respondent’s favour that the Claimant was not a disabled person. Issue therefore remitted for reconsideration.
Comment upon the importance of case managing – especially where a claimant is in person – the evidence to be adduced on the question whether a claimant is a disabled person.

David Richardson J
[2013] UKEAT 0386 – 13 – 0509
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516751

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal Judgment was given a generous reading paying attention to the correct self-directions. It did not err in finding the dismissal of the Claimant for misconduct was open to a reasonable employer.
The incorrect self-direction applying Burchell without noting the change in the burden of proof in 1980, whilst unforgivable and a distraction, did not affect the result.

McMullen QC J
[2013] UKEAT 0462 – 12 – 0409
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516752

EAT PRACTICE AND PROCEDURE – Disclosure
The Employment Judge erred in conducting a five hour telephone CMD in ordering disclosure of documents he had not read and in applying the test of relevance rather than necessary for a fair trial. The sequence in a disclosure application is:
(1) The Judge must first consider if the document sought is relevant (if it is not, then it will not be ordered to be disclosed).
(2) If it is relevant, the next question is whether it is necessary for the fair trial of the case for it to be ordered to be disclosed. Where there is objection, the Judge should examine the document itself so as to consider whether or not in a contention that it is confidential it should still be disclosed (see Nasse).
(3) If the document is relevant and necessary and is to be disclosed, the Judge should consider whether there is a more nuanced way of disclosing the material so as to respect confidentiality and the Judge may then decide to order the document to be disclosed wholly or partially, usually by the system now known as redaction.
(4) The disclosure Judge having read the disputed documents should not conduct the full hearing unless the parties agree.
The order was set aside and the issue remitted to a different Employment Judge.

McMullen QC J
[2013] UKEAT 0333 – 13 – 2308
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516745

EAT PRACTICE AND PROCEDURE – Permission to appeal further
Permission to appeal was granted. The Secretary of State’s apology for declining to attend hitherto was accepted. There was a compelling reason for permission, including a parallel reference to the CJEU, the importance of the legal issue to industry, and the value of the claims. In the unique circumstances, a condition of permission being granted was the Secretary of State indemnify the Claimants for their reasonable costs in the Court of Appeal.

McMukken QC J
[2013] UKEAT 0548 – 12 – 1009
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516753

EAT CONTRACT OF EMPLOYMENT – Frustration
DISABILITY DISCRIMINATION – Disability related discrimination
For the purposes of claims of unfair dismissal and breach of contract the Respondent argued, and the Employment Tribunal accepted, that the Claimant’s contract came to an end by virtue of the doctrine of frustration. It was argued that this doctrine had no application where there was a duty to make reasonable adjustments.
Held: the Employment Tribunal did not err in law in holding that the Claimant’s contract of employment came to an end by virtue of frustration. In the case of a disabled person, before the doctrine of frustration can apply there is an additional factor which the Tribunal must consider over and above the factors already identified in the authorities – namely whether the employer is in breach of a duty to make reasonable adjustments. While there is something which (applying the provisions of the Equality Act 2010) it is reasonable to expect the employer to have to do in order to keep the employee in employment the doctrine of frustration can have no application. But where, as the Tribunal found in this case, there was no breach of the duty to make reasonable adjustments, the Tribunal was entitled to find that the contract was frustrated. Thorold v Martell Press [2002] 0343/01 EAT considered and applied.
For the purposes of the Equality Act 2010, however, the Respondent did not argue that the contract of employment came to an end by frustration – dismissal was admitted. The Tribunal found that dismissal was a proportionate means of achieving a legitimate aim, but did not deal with the Claimant’s submission that the Respondent treated the Claimant unfavourably by failing to carry out any form of capability procedure, however rudimentary, and by dismissing him without any form of enquiry or procedure. Remitted for that matter to be considered.

David Richardson J
[2013] UKEAT 0376 – 12 – 0810
Bailii
Equality Act 2010
England and Wales
Citing:
Cited – R Thorold v Martell Press Ltd EAT 8-Mar-2002
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 November 2021; Ref: scu.516760

EAT REDUNDANCY – Definition
Two-fold test in Murray v Foyle Meat [2000] 1 AC 51 considered. Incorrectly applied by Employment Judge in finding no redundancy situation by reference to diminution in the work, not employees doing the work (Employment Rights Act s.139(1)(b)).
Employer appeal allowed. Case remitted to Employment Tribunal for re-hearing.

Peter Clark J
[2013] UKEAT 0118 – 13 – 1909
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516750

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – redundancy – reduction in number of employees and re-organisation of business – competitive interviews.
The Claimant, deputy director of a business run by the Respondent, applied for a new post created in the course of a reduction in number of members of staff. The Respondent, having provided her with a job description for the new post, changed the job description materially without informing her, and then rejected her candidacy after interviews where it did not carry out its stated policy of fully analysing qualifications, skills, performance, contribution, expertise and potential savings. The Tribunal held the dismissal to be unfair. The Respondent appealed, arguing in particular that the Tribunal failed to apply the reasoning in Morgan v Welsh Rugby Union [2011] IRLR 376.
Held: appeal dismissed. The Tribunal had applied section 98(4) of the Employment Rights Act 1996 appropriately; this was entirely consistent with Morgan; and the Tribunal was entitled to take into account how far the employer established and followed through procedures when making an appointment, and whether they were fair (see Morgan, paragraph 36).

David Richardson J
[2013] UKEAT 0600 – 12 – 1410
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516759

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Tribunal did not err in exercising their discretion to strike out an ET3 in circumstances in which on the evidence before them they could conclude that the failure to comply with an order to disclose documents was deliberate and persistent. The sanction of striking out the ET3 Response was within the discretion of the ET it was not disproportionate. Blockbuster Entertainment Ltd v James [2006] IRLR 630 considered.

Slade J
[2013] UKEAT 0500 – 12 – 2806
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516736

EAT PRACTICE AND PROCEDURE – Costs
Procedure adopted by Employment Tribunal on costs application at the conclusion of the substantive hearing unfair in circumstances where paying party self-represented and substantial costs sought; EAT ruled it will usually be appropriate to adjourn the costs hearing for party against whom costs order sought to be given proper opportunity to consider the costs application, any costs schedule produced and any evidence he wishes to adduce as to his means. The application for costs can then proceed by way of written submissions, unless either party requests an oral hearing.

Supperstone J
[2013] UKEAT 0018 – 13 – 1807
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516738

EAT UNFAIR DISMISSAL – Constructive dismissal
In order to determine a claim for constructive dismissal, a Tribunal had applied a test, referred to in Harvey, whether the contractual breach by the employer was ‘the effective cause’ of an employee’s resignation. It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration. The definite article ‘the’ is capable of being misleading. The search is not for one cause which predominates over others, or which would on its own be sufficient, but to ask (as Elias J put it in Abbey Cars v Ford) whether the repudiatory breach ‘played a part in the dismissal’. This is required on first principles and by Court of Appeal authority (Meikle). The Tribunal here appeared to seek for ‘the’ cause rather than ‘a’ cause, and to regret that despite serious breaches by the employer which had caused upset to the employee it had to hold that on that test the effective cause of resignation was that the Claimant could not combine caring for her partner with the demands of her job. The error of law may have played a part in the decision. The case was remitted for further consideration as conforms with the EAT’s judgment.

Langstaff P J
[2013] UKEAT 0017 – 13 – 2706
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516737

EAT CONTRACT OF EMPLOYMENT
The Claimant sought a declaration that he was an employee of the Respondent, and sought a declaration of his terms and conditions of employment. He also claimed there had been an unlawful deduction from wages under section 13 of the Employment Rights Act 1996 and in respect of holiday pay. The Respondent argued that the Claimant was not an employee but rather was a self-employed contractor and that there had been no unlawful deductions from wages. They argued that the ET had not erred in law in so finding. Held that the ET had made no error in law. The appeal is dismissed.

Lady Stacey
[2013] UKEAT 0027 – 13 – 1907
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516741

EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The issue was whether the claim was lodged out of time which turned on the effect of a letter of resignation. Subsequent correspondence between the parties included (1) a letter from R giving C time to review her decision, and (2) a further letter from R purporting to accept C’s resignation and requiring C to give notice. C was paid to the end of the notice period. ET decided no dismissal until end of notice period. EAT allowed appeal. Letter of resignation was letter of immediate resignation (Sothern v Franks Charlesly and Co [1981] IRLR 278) unaffected by R giving a ‘cooling off period’ (Willoughby v CFC Plc [2011] EWCA Civ 115). Subsequent correspondence had no legal effect.

Supperstone J
[2013] UKEAT 0289 – 13 – 3007
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516742

EAT PRACTICE AND PROCEDURE – Amendment
Amendment of pleadings. The Claimant submitted a form ET1 alleging that she had made protected disclosures and had suffered detriment due to that; and that she was disabled and the Respondent had refused to make reasonable adjustments. She submitted an agenda for a Case Management Discussion (CMD) in which she stated that she complained of contraventions of sections 13, 19, 26, 27, 15 and 20 of the Equality Act 2010. She also stated that she complained of direct discrimination, indirect discrimination, harassment and victimisation. She produced further and better particulars in accordance with the agenda. At a pre-hearing review (PHR) the Respondent argued that the Claimant sought to introduce new matters, which were time barred. The ET agreed and refused to allow amendment to include the matters raised in the agenda and further and better particulars. They Claimant appealed. The ET did not err in law. The matters were not referred to in the ET1 and so were new. No explanation for their being raised late was given. The ET was entitled in the exercise of its discretion to refuse the amendment.

Lady Stacey
[2013] UKEAT 0005 – 13 – 1906
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516735

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant had surgery for parotid cancer in 1998 and so was disabled under para 6A Disability Discrimination Act 1995. In 2009 he developed symptoms in his back which the treating physicians did not immediately link to the cancer. He died in 2011. The Respondent did not know, and could not reasonably be expected to know of the link and so was not in breach of the duty to make reasonable adjustments for the symptoms in his back. Ridout and Wilcox applied.

McMullen QC J
[2013] UKEAT 0075 – 13 – 2008
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516744

EAT RACE DISCRIMINATION
Racial harassment – Tribunal did not make a finding on the question of whether a fellow employee used the expression ‘white trash’ in his hearing, did not make findings on certain relevant aspects of section 3A of the Race Relations Act 1976 and did not deal with one aspect of the Claimant’s racial harassment case. Racial harassment issue, and associated time points, remitted to Tribunal for reconsideration.
Victimisation – Tribunal’s findings not perverse and upheld.

David Richardson J
[2013] UKEAT 0302 – 12 – 2808
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516743

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants dismissed the Claimant for gross misconduct in relation to two incidents following a disciplinary hearing. There was no dispute that they had an honest belief that the Claimant had committed gross misconduct nor that they had carried out a reasonable investigation. The Employment Tribunal made findings about what had happened in the two incidents and on the basis of those findings found that there was in fact no misconduct and that there was no way that any employer could reasonably come to the view that there was. The appeal was allowed because the ET had not referred to the very full decision letter, had not expressly asked themselves whether there were reasonable grounds for the belief the Appellants had reached and appeared to have substituted their own findings for those of the Appellants. The matter remitted to be reheard by a fresh ET.

Shanks J
[2013] UKEAT 0065 – 13 – BA – 1807
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516740

EAT UNFAIR DISMISSAL – Constructive
The issue was whether the Appellant had a contractual entitlement to work 48 hours each week. The Employment Tribunal found he had no entitlement to work a minimum number of hours: ‘no work, no pay’. The EAT allowed his appeal, holding he had a contractual entitlement to work 48 hours each week and remitted the issue of constructive unfair dismissal to the same ET for rehearing.

Supperstone J
[2013] UKEAT 0416 – 12 – 1607
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516739

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Contributory fault
Unfair dismissal. The Employment Tribunal found that the Appellant unfairly dismissed the Respondent. It found that there had been no reasonable investigation following an incident, and that it failed to show the reason for dismissal. Appeal allowed and case remitted to a freshly constituted Tribunal.

Lady Stacey
[2013] UKEAT 0050 – 12 – 1604
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.516734

The plaintiff complained as to the way he had been dismissed. He was employed as a dock labourer under a statutory scheme. The Board said that the power of dismissal was given by the statute and that therefore the standard rules on dismissal did not apply.
Held: Jenkins LJ (Dissenting) said: ‘In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arises. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more.’
‘it follows from the fact that the plaintiff’s dismissal was invalid that his name was never validly removed from the register, and he continued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case. There, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated albeit in breach of contract. Here, the removal of the plaintiff’s name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute, that status conferred on him.’

Jenkins LJ
[1956] 1 All ER 1
England and Wales
Cited by:
Appeal from – Vine v National Dock Labour Board HL 1957
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 November 2021; Ref: scu.440287

This was an appeal against the ET’s finding that the Respondent had acted within the range of reasonable responses in deciding to dismiss the Appellant for authorising the payment of the cost of a trip by a senior official of Highways England to stay and to play golf at Pebble Beach Golf Club in California.
Ground 1
The first ground of appeal was concerned with the proper interpretation of the Respondent’s Anti-Corruption Policy and whether the ET was right to find that the Respondent had been entitled to find that the Appellant’s authorisation of this trip was in breach of the Policy. The EAT held that the right approach to this question was not to treat the Policy as if it was a statute, in which there was only one right and wrong answer to the question of interpretation. The real issue was whether the ET was perverse to find that it had been open to the Respondent to interpret the Policy in a way that meant that the Appellant had breached it.
The ET had not reached a perverse decision in this regard. Indeed, both the ET and the Respondent had been right to conclude that the Appellant’s actions were in breach of the Policy. The official of Highways England was a ‘foreign official’ for the purposes of the Policy, and the expenses that the Appellant had authorised were a ‘Prohibited Payment’ as defined in the Policy. Expenditure could be a ‘Prohibited Payment’ even if there was no intention to provide a bribe or corrupt payment.
Ground 2
In Ground 2, the Appellant contended that the ET had been wrong to decide that the ET acted reasonably in finding that the Appellant had acted in ‘wilful disregard’ of the Policy, even though he had not deliberately intended to breach the policy and had no corrupt intent.
The EAT rejected this ground also. Wilful disregard meant something different from ‘deliberate’ or ‘intentional’. The Appellant, who was a senior employee, had been uncomfortable about making the payment and should have refrained from doing so, or should have explored the matter more fully, or taken advice from the Legal Department. He was aware that there was a potential problem but carried on regardless.
Ground 3
This was a perversity challenge to the decision to dismiss. The EAT rejected it. To an extent this ground overlapped with Grounds 1 and 2. Given the importance of avoiding the potentially catastrophic reputational and other damage which could arise if the Respondent committed, or was suspected of committing a breach of anti-bribery legislation in the UK, US or elsewhere, the Respondent was entitled to take a hard line against senior officials who placed it in danger in this regard by their wilful disregard of the policy.
Ground 4
The Appellant contended that there had been procedural unfairness because he was not told sufficiently clearly which part of the Anti-Corruption Policy he was alleged to have breached. The EAT rejected this ground, as the nature of the allegation against the Appellant was made clear to him in the investigation process and at the disciplinary hearing, and he was able to identify the nature of the alleged breaches in his appeal letter.
Inadequacy of reasons
The Appellant also alleged that the ET judgment was not Meek-compliant. This allegation was also rejected.

[2021] UKEAT 2020-000463
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.668645

The Carillion group was facing serious financial difficulties from no later than July 2017 and went into liquidation on 15 January 2018. The liquidation resulted in the claimants being dismissed on various dates after 15 January 2018. The claimants issued claims for protective awards under section 189 TULRCA in respect of the respondents’ failure to comply with the requirements of section 188 TULRCA to consult with representatives about proposals to dismiss as redundant 20 or more employees at an establishment within a period of 90 days or less. The respondents contended that there were ‘special circumstances’ within the meaning of section 188(7) TULRCA that meant that the respondents were only required to take all such steps towards compliance as were reasonably practicable in those circumstance. The tribunal rejected that contention. The respondents appealed.
Held, dismissing the appeal, that the tribunal had not erred in concluding that there were no special circumstances here, and was correct to follow Court of Appeal authority (Clarks of Hove Ltd v Bakers’ Union [1978] 1 WLR 1207) that ‘special’ in this context, meant something uncommon or out of the ordinary.

[2021] UKEAT 2021-000269
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.668433

[1997] UKEAT 206 – 97 – 1202
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.207266

[1997] UKEAT 982 – 96 – 1002
Bailii
England and Wales

Employment

Updated: 22 November 2021; Ref: scu.207263

The employer appealed against the successful appeal by the employee to the EAT on the grounds of perversity notwithstanding that the parties agreed the facts found.
Held: The appeal was allowed.

Rimer, Tomlinson, McFarlane LJJ
[2013] EWCA Civ 1226
Bailii
England and Wales
Citing:
Cited – Stewart v Cleveland Guest (Engineering) Ltd EAT 4-May-1994
A display of nude images at a workplace may be discriminatory as sexual harassment, but some common sense was needed. The display of soft-porn photographs in a workplace need not of itself be subjecting a female worker to a detriment.
Mummery J . .
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 November 2021; Ref: scu.516499