EAT UNFAIR DISMISSAL – Reasonableness of dismissal – Polkey deduction – The Employment Tribunal was entitled to find on the facts that the Claimant had been unfairly dismissed. – The Employment Tribunal was in error in considering that where there had been substantive unfairness as well as procedural unfairness there was no room for the application of a Polkey deduction; see the authorities referred to at Division D1/2549 of Harvey on Industrial Relations.

Serota QC
[2013] UKEAT 0034 – 13 – 2106
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.516225

EAT Transfer of Undertakings – UNFAIR DISMISSAL – Reason for dismissal including substantial other reason – TUPE transfer; dismissal one year later. The Employment Tribunal erred in failing to identify the reason or principal reason for the dismissal and gave no reasons for rejecting the Claimant’s case that this was a TUPE Regulation 7(1)(a) rather than a TUPE Regulation 7(1)(b) case. The decision was therefore not Meek compliant. Case remitted to same ET to make relevant findings.

Judge Birtles
[2013] UKEAT 0112 – 13 – MC – 0708
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.516030

EAT Unfair Dismissal : Dismissal or Ambiguous Resignation – Constructive dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal found that the Claimant had been constructively dismissed. The Respondents put forward 2 broad grounds of appeal.
The first was that the decision of the Court of Appeal in Tullett Prebon (2011 IRLR 420) had changed the law and required the Tribunal in a constructive dismissal case in which reliance was placed on the implied term of trust and confidence to find whether the employer had a subjective intention to act in such a way as to permit the employee to terminate the contract. This submission was rejected. On a proper reading of the judgments in Tullett Prebon, the Court was not departing from the now long established principle set out in Woods v WM Car Services, Lewis v Motorworld and Malik v BCCI but was reinforcing it.
The second was perversity. Held that perversity had not been demonstrated

Jeffrey Burke QC
[2013] UKEAT 0016 – 13 – 2709
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.516031

EAT Practice and Procedure : Preliminary Issues – JURISDICTIONAL POINTS – Working outside the jurisdiction
The Claimant worked 3 weeks in 4 in Dubai, spending the 4th as ‘rest time’ at his home in the UK, under a contract made with a company registered in the Isle of Man, which provided that Manx courts would have sole jurisdiction and Manx law would apply. The company had no place of business in the UK, and administration of it was based in Austria (Vienna). An Employment Judge held that the company was domiciled in Austria within the terms of the Brussels 1 Regulation; and that since C did not habitually work in another Member State he could sue the respondent only in Austria. He was held entitled to come to these conclusions (though some of the factual basis for them was thin). That disposed of the appeal. The judge also found that the claim was outside the territorial scope of the ERA 1996, and was held entitled to do so: he had addressed the right test, permissibly applied it, and though he could have said more came to a conclusion he was entitled to reach.

Langstaff P J
[2013] UKEAT 0131 – 13 – 2307
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.516000

EAT Disability Discrimination : Reasonable Adjustments – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – An argument that a Tribunal had impermissibly excluded the scope of an issue remitted to it, and/or had reached a perverse conclusion, was rejected.

Langstaff P J
[2013] UKEAT 0207 – 13 – BA – 0407
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.515999

EAT UNFAIR DISMISSAL – Contributory fault
An Employment Tribunal decided that the contributory conduct of a Claimant who succeeded in his claim for unfair dismissal was such that compensatory and basic awards should be extinguished altogether. It did not identify the conduct, nor whether it was blameworthy, nor why it was just and equitable to reduce the awards, nor give any sign it appreciated the difference between s.122(2) and s.123(6), nor showed that it was considering what the actual facts were as to what the Claimant had done which was blameworthy rather than relying on the employer’s view of what he had done. This was erroneous. In particular, in the rare case where a 100% deduction is made, reasons clear enough to enable the Claimant and any appeal court to understand why no compensation is being awarded should be given.

Langstaff P J
[2013] UKEAT 0023 – 13 – 1707
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.516001

The claimant alleged that he had been subject to detriment and dismissal because he had made public interest disclosures. The only relevant disclosure for the purposes of the appeal was one alleged to have been made orally at a meeting on 4 October 2017. The employment tribunal failed to determine what the claimant had said at the meeting and properly analyse whether he made a disclosure of information for the purposes of section 43B Employment Rights Act 1996. The matter was remitted to be considered, if possible, by the same employment tribunal.

[2021] UKEAT 2020-000590
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.668434

[1997] UKEAT 1138 – 96 – 1402
Bailii
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.207248

EAT Transfer of Undertakings – Transfer.

The Honourable Mr Justice Mitting
UKEAT/0016/04
EAT
England and Wales

Employment

Updated: 21 November 2021; Ref: scu.257145

EAT Practice and Procedure : Striking-Out or Dismissal – The Employment Judge was entitled to strike out the Claimant’s claims for unreasonable conduct, failure to observe the orders of the Tribunal and for stultifying a fair trial.
Observation that a request for a transcript of a judgment upholding an Employment Tribunal judgment made on established principles is an indulgence which must be supported by proper reasons, particularly where there is no application for permission to appeal and the party is represented by a lawyer under a duty to take a note.

McMullen QC
[2013] UKEAT 1207 – 12 – 1707
Bailii
England and Wales
Cited by:
Applied – Schaathun v Executive and Business Aviation Support Ltd (Practice and Procedure: Costs) EAT 13-Jul-2015
PRACTICE AND PROCEDURE – Costs
The Employment Judge came to an impermissible conclusion on the facts in finding that the Claimant had asked the Tribunal to make a Norwegian interpreter available at the Full Hearing. Her email was plainly an . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 November 2021; Ref: scu.515400

EAT Practice and Procedure : Amendment – The Claimant applied for permission to amend her claim to allege disability discrimination and race discrimination. The Employment Judge, in refusing permission (1) exercised his discretion on a misapprehension of fact, in that the Claimant had, contrary to his understanding, raised disability discrimination in the course of the disciplinary process, viz on appeal, (2) overlooked email correspondence in September 2010 when the Claimant told her union that she wished to claim race discrimination and (3) overlooked or gave no reasons in respect of the Claimant’s explanation for delay, including in particular the state of her health during the relevant time. The application was remitted for reconsideration by a differently constituted Tribunal.

[2013] UKEAT 0571 – 12 – 2607
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515394

EAT Practice and Procedure : Striking-out/dismissal
Estoppel or abuse of process
The Claimant issued her form ET1 in which she relied on an act of racial discrimination. The primary time limit had expired. At a Pre Hearing Review she sought to add two further acts by amendment; the Employment Tribunal refused leave to amend and held that it was not just and equitable to extend time in respect of the original complaint. An appeal did not succeed.
The Claimant then issued her second ET1 in which she put forward all three acts of discrimination again. The ET held that the claim in respect of the first act was barred by issue estoppel and that, because the claim in respect of the subsequent acts had only been put forward in an attempt to serve the claim in respect of the first act by enabling the Claimant to argue a continuing act of discrimination, the putting forward of the subsequent acts was an abuse of process.
Held:
(1) The decision that there was no jurisdiction to hear the claim in respect of the first act was binding between the parties; an issue necessary to the presentation of that claim had been finally determined. The absence of any consideration of the claim’s merits did not affect the position. The ET had correctly applied the principle of res judicata/issue estoppel. Foster v Bon Groundwork [2012] CA applied.
(2) The principles of abuse of process considered and reviewed, following Johnson v Gore-Wood [2002] HL and subsequent decisions, including Fox v Bassetlaw [2013] EAT. The ET had correctly applied these principles and reached a decision which was not perverse.
Appeal dismissed.

Jeffrey Burke QC
[2013] UKEAT 0337 – 12 – 0609
Bailii
England and Wales
Cited by:
Appeal from – Agbenowossi-Koffi v Donvand Ltd (T/A Gullivers Travel Associates) CA 24-Jun-2014
The claimant, of Black African origin, was publicly described as a ‘monkey in silk’ which led to her suffering depression. The company responded that her claim was out of time. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 November 2021; Ref: scu.515405

EAT Practice and Procedure : Disposal of appeal including remission
Postponement or stay
Approval of consent order allowing appeal – paragraph 18.3 of 2013 Practice Direction – reasons why a hearing is generally required in respect of such orders – approval given on a basis explained in the Judgment.
Refusal by Tribunal to adjourn a hearing – Tribunal evidently intending to proceed as if consent order allowing appeal already made – refusal set aside – reconsideration of whether it was in the interests of justice to continue the hearing below – hearing below adjourned.

David Richardson J
[2013] UKEAT 0328 – 13 – 1308
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515403

EAT UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Amendment
It was part of the Claimant’s case of constructive dismissal based upon the implied term of trust and confidence that the Respondent effectively denied any proper appeal against its decision upon a grievance which he had presented. The Tribunal did not determine this issue, apparently regarding it as irrelevant to the Claimant’s case concerning the implied term of trust and confidence. This was an error of law.
The Claimant also sought to amend the claim to plead that the grievance procedure in question had contractual effect. The amendment was refused. The Tribunal’s reasons for refusing the amendment were flawed.

David Richardson J
[2013] UKEAT 0185 – 12 – 2907
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515391

EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term – An Employment Tribunal took the view that a contract of employment provided for overtime only to be paid at the discretion of the employer, and that therefore the Claimant could not complain after dismissal that he should have been paid for hours he worked beyond the maximum of his normal working week. Held that it was wrong to construe the contract as providing no obligation to pay at least the normal hourly rate, and in any event it would be a breach of contract not to consider the exercise of the discretion to pay at an enhanced rate. If that breach had been established, the ET would have to assess the damages on the basis that the employer would have taken a decision in good faith which was rational, and not capricious, whether and how to exercise the discretion. This depended upon a factual conclusion as to whether the Claimant had in fact worked the hours he claimed, as to which the ET failed to make any proper determination. The matter was remitted to the ET for re-determination in accordance with the Judgment and Order.
A separate appeal, in respect of non-payment of meal allowances, was dismissed since there was no evidence before the Tribunal to support the claim (even though it was raised in the ET1 and noted by the Employment Judge as one of the issues in the case), and the ET’s decision to reject the claim was thus plainly and obviously right.

Langstaff J P
[2013] UKEAT 0331 – 12 – 1107
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515392

EAT Unfair Dismissal : Constructive Dismissal – The Certification Officer decided after consultation that GAWHU was not a trade union, because the principal aim of the organisation was to facilitate access to hearings before employers at which individuals could be represented: the promoters of GAWHU had been involved in successive companies seeking to represent workers for a fee, and there was no evidence to support any collective activity which would constitute regulating relations between workers and employers.
He was entitled on a proper construction of the applicable legislation to come to the conclusion, which was a matter of fact, and was properly approached.

Langstaff J P
[2013] UKEAT 0180 – 13 – 0507
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515390

EAT Jurisdictional Points : Extension of Time: Reasonably Practicable – The Employment Judge could not be faulted in finding that it was reasonably practicable for the Claimant to submit his claim within three months, when he was almost a year out of time. He failed to apply for written reasons in time. This was in character.
This judgment is provided at public expense without the Claimant having to make a case for it, inexplicably in times of austerity when the Claimant heard the judgment, given in line with those of the Employment Judge and the EAT judge.

McMullen QC
[2013] UKEAT 0107 – 13 – 1507
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515402

EAT Transfer of Undertakings : Service Provision Change – JURISDICTIONAL POINTS – Continuity of employment
Unfair dismissal claim. Employee only having sufficient continuity of employment if she could establish an earlier TUPE transfer.
Service provision case. Employee in an organised grouping of which she was the only member. Issue whether carrying out the transferred activities was the ‘principal purpose’ of the grouping and whether the employee had been ‘assigned’ to that group.
Employment Judge found facts establishing that the conditions in TUPE Reg 3 were satisfied.
Appeal dismissed. Judge had correctly applied the law to her findings of fact.

Luba QC Rec
[2013] UKEAT 0570 – 12 – 0909
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515408

EAT Age Discrimination : An officer made a shambles of devising a matrix and applying points to all affected in a reorganisation of police officers. But the Employment Tribunal was entitled to uphold her explanation as an honest attempt to be fair, when answering the claim that she deliberately manipulated the scheme to ensure the Claimant, by reason of his age, fell outside the safety zone.

McMullen QC
[2013] UKEAT 0055 – 13 – 1107
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515399

EAT PRACTICE AND PROCEDURE – Amendment – The Claimant applied for permission to amend her claim to allege disability discrimination and race discrimination. The Employment Judge, in refusing permission (1) exercised his discretion on a misapprehension of fact, in that the Claimant had, contrary to his understanding, raised disability discrimination in the course of the disciplinary process, viz on appeal, (2) overlooked email correspondence in September 2010 when the Claimant told her union that she wished to claim race discrimination and (3) overlooked or gave no reasons in respect of the Claimant’s explanation for delay, including in particular the state of her health during the relevant time. The application was remitted for reconsideration by a differently constituted Tribunal.

David Richardson J
[2013] UKEAT 0517 – 12 – 2607
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515393

EAT Unfair Dismissal : Procedural Fairness/Automatically Unfair Dismissal – The Claimant was summarily dismissed either by letter or face-to-face for unauthorised absence with no hearing of any sort being offered or held. The Tribunal nevertheless found the dismissal fair on the basis that he was offered an appeal which (they also found) would not have been ‘meaningful’ or led to re-instatement because the depot where he worked was closed in the meantime. That conclusion was clearly erroneous.

Shanks J
[2013] UKEAT 0079 – 13 – 1207
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515398

EAT Transfer of Undertakings : Economic Technical or Organisational Reason – TUPE Regulations 2006. Circumstances in which a worker is held to object to her employment being transferred from transferor to transferee. The conclusion of the Employment Tribunal was that the worker had objected to a relevant transfer. The findings in fact and conclusions are insufficient to explain the reasoning of the ET and the matter is remitted to them for further explanation.

Lady Stacey
[2013] UKEAT 0012 – 13 – 1607
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515397

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – Costs – The Employment Tribunal did not comply with rule 38(9) of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004) in that it did not afford the Claimant an opportunity – which means a fair and reasonable opportunity – to give reasons why the order for costs should not be made. Other criticisms of Employment Tribunal’s reasoning also justified.

David Richardson J
[2013] UKEAT 0074 – 13 – 1707
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515396

EAT Age Discrimination : AGE RELATED DISMISSAL
The Claimant was dismissed at age 65 consistently with the employer’s retirement policy. The Employment Tribunal found that he had been given proper notice of retirement and of the right to request that he be kept on for a further period. Such a request had been properly considered and had not been unfairly dismissed.
After the Employment Tribunal’s order had been made, the Court of Appeal gave judgment in R and R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410 (02 April 2012) in which it held that an employer was required to expressly tell an employee that he has a right to make a request not to retire pursuant to paragraph 5 of schedule 6 of the Employment Equality (Age) Regulations 2006.
It was common ground that precise statutory reference had not been made in the notice given in the instant case and that the finding of unfair dismissal had to be reversed: Employment Rights Act 1996 section 98ZG
The issue of compensation did not require remission. The basic award was agreed. No compensatory award was payable. It was inevitable, on the findings of fact, that the Claimant could (and would) have been fairly dismissed for retirement on the date he was dismissed.
DEDUCTION FROM WAGES
The Employment Tribunal had rejected a claim that the Claimant had been paid less that his full salary. It had resolved against him an issue of disputed fact.
The appeal was dismissed. The Claimant could not be permitted to run a different factual case on appeal from that put to the Tribunal below. On the case that he had run below, the findings of fact made by the Employment Tribunal were matters for them and disclosed no error of law.

Luba QC
[2013] UKEAT 0393 – 12 – 2905
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515384

EAT Race Discrimination : Direct – The Employment Tribunal’s exercise of its discretion in ordering the Claimant to pay costs of andpound;5,000 to the Respondent on the basis what it found to be her unreasonable conduct of the proceedings could not be faulted.

Serota QC
[2013] UKEAT 0125 – 12 – 2506
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515386

EAT Contract of Employment : Whether Established – The Employment Tribunal found, on the basis of the opening words of a written contract between the parties, that the Claimant was not an employee. Counsel for the Respondent had not drawn the Tribunal’s attention to the Autoclenz case [2011] UKSC 41 and the Tribunal had not carried out a proper analysis of all the terms of the written contract or how the parties operated it in practice and what the true agreement between the parties was. Appeal allowed and the matter remitted to new Employment Tribunal.

Shanks J
[2013] UKEAT 0115 – 13 – 1507
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515389

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – Costs – Two out of three grounds permitted to proceed to full hearing at a preliminary hearing fell away in light of the Employment Tribunal answers to Burns-Barke questions then raised.
No error of law by ET in awarding costs against the Appellant reflecting his earning potential.
Costs ordered in the appeal, again taking account of his means and the Burns-Barke answers which wholly undermined the first two grounds of appeal.

Peter Clark J
[2013] UKEAT 0077 – 12 – 0706
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515387

EAT Unfair Dismissal : Reasonableness of Dismissal – The Employment Tribunal found that the Scottish Prison Service had unfairly dismissed Mr Laing and that he had contributed to his dismissal to such an extent that 65% should be deducted from any award. They found that there was insufficient information for them to decide on pension loss and continued the matter for a further hearing or written submissions.
The Scottish Prison Service appealed against the finding of unfair dismissal and further argued that if the dismissal was unfair the contribution by Mr Laing had been 100%. Mr Laing cross-appealed on the question of contribution, his first position being that the ET’s determination should not be changed and his second position being that if it were to be changed, then it should be a finding of no contribution at all. The decision of the EAT is that the dismissal was not unfair and the Employment Tribunal’s decision is overturned. The EAT has decided that if they were required to consider the question of contribution, then Mr Laing contributed 100% to his dismissal. The Respondent took issue with the ET continuing the case for further information about pensions. The EAT decided that that was a matter entirely within the discretion of the ET and they were entitled to make the order made by them.

Lady Stacey
[2013] UKEAT 0060 – 12 – 1405
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515383

EAT Contract of Employment : Whether Established – JURISDICTIONAL POINTS – Agency relationships
Decision made on review – new matter sought to be argued in written submissions. The Employment Tribunal agreed to review, but did not deal with the new matter. Held that the ET erred in law. Case remitted back to the ET to reconsider request for review.

Lady Stacey
[2013] UKEAT 0049 – 12 – 1704
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.515382

[1997] UKEAT 420 – 96 – 1202
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.207247

The Employment Appeal Tribunal dismissed the Claimant’s appeal against the Employment Tribunal’s decision that certain paragraphs of further particulars of claim provided by the Claimant pursuant to an earlier order of the Employment Tribunal were new matters which required an application to amend to be made, rather than further particulars of the claim already made. However, the Claimant’s appeal against the Employment Tribunal’s decision to refuse permission to amend in respect of those paragraphs was allowed. When determining the application to amend, the Employment Tribunal had treated the fact that the Claimant was raising new allegations as decisive rather than balancing the relative injustice and hardship of allowing or refusing the amendments (Vaughan v Modality Partnership [2021] IRLR 97 considered and applied). The application to amend was remitted to a differently constituted Employment Tribunal for rehearing.

[2011] UKEAT 2019-001028
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.668431

The employment tribunal erred in law in holding that the claimant was not a disabled person. The employment tribunal erred in law in striking out the claimant’s discrimination claims without adequately analysing them, and gave insufficient reasons with the result that the claimant could not know why the claims had been struck out. The employment tribunal erred in refusing the claimant’s application to amend to claim protected disclosure detriment, principally on the ground that such a claim would be out of time, without giving any consideration to the claimant’s explanation for the delay in making the application. The claim was remitted to the employment tribunal.

[2021] UKEAT 2021-000256
Bailii
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.668435

EAT Unfair Dismissal – Exclusions including worker/jurisdiction.

His Honour Judge J McMullen QC
[2004] UKEAT 0020 – 04 – 2207, EATS/0020/04
Bailii, EAT
England and Wales

Employment

Updated: 20 November 2021; Ref: scu.200040

Europa Officials – Open competition – Selection Board – Composition – Equal treatment – Conditions for admission.

F-22/05, [2006] EUECJ F-22/05
Bailii
European

Employment

Updated: 20 November 2021; Ref: scu.247385

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal; deposit
Misdirection as to power to strike out under ET rule 18(7)(b). Appeal allowed and strike-out order set aside; however, deposit ordered and case remitted to ET for full hearing.

Peter Clark J
[2013] UKEAT 0038 – 13 – 0507
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515073

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant, a practising barrister employed by a solicitors firm, was a litigant in person in her sex discrimination claims which all failed. In considering the claims, the Tribunal held that the credibility of the parties was central and found against the Claimant in three relevant respects based, in part, upon what she put in her written submission. There was no breach of the principle of equality of arms, the Respondent being represented by leading counsel, in holding against her what she had written in her submission. No other complaint of unfair treatment was made. The Claimant had a fair trial.

McMullen QC J
[2013] UKEAT 0225 – 12 – 1608
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515075

EAT UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Striking-out/dismissal
Unfair constructive dismissal.
The Claimant was employed as a procurator fiscal depute. She was off sick with stress related illness when the Respondent invited applications to a voluntary exit scheme. She applied and her application resulted in a quote which she accepted, and Respondents agreed that she could take part in the scheme. She left the employment of the Respondents. She then claimed that she had been unfairly constructively dismissed as the Respondents had breached her contract resulting in her stress related illness. Her claim was dismissed as having no reasonable prospects of success at a PHR. She appealed.
Held: that she was not dismissed constructively or otherwise but left by mutual agreement. Appeal refused.

Lady Stacey
[2013] UKEAT 0053 – 12 – 1106
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515069

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellant was the employer of both Respondents, until 27 November 2010 when both were dismissed. Following internal appeals, the decisions to dismiss were upheld. The Respondents lodged claims of unfair dismissal. It was agreed that the cases would proceed together and a hearing took place on the question of unfair dismissal only, leaving over the question of remedy. By a decision dated 14 August 2012 the Employment Tribunal upheld the claims of unfair dismissal.
Held: the ET failed to determine whether the dismissals were fair or unfair in terms of section 98(4) of the Employment Rights Act 1996, and failed to give reasons for their decision that the conduct of the dismissal hearing was ‘going through the motions’ and that the appeal hearing was insufficiently independent. The ET therefore erred in law. The case is remitted to a fresh ET to be heard again.

Lady Stacey
[2013] UKEAT 0051 – 12 – 1203
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515066

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
A two year delay in dealing with the Claimant’s claim form, by the Tribunals Service and by inaction of his union, was inordinate and inexcusable. It made a fair trial impossible. The claim was permissibly struck out by the Employment Judge. In reality, his remedy is not in the Employment Tribunal.

McMullen QC J
[2013] UKEAT 0030 – 13 – 1507
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515071

EAT PRACTICE AND PROCEDURE – Restricted reporting order
The Employment Judge correctly applied the principles in ECHR Art 8 in continuing anonymity orders in respect of the actors in this Employment Tribunal case, following earlier directions of the EAT.

McMullen QC J
[2013] UKEAT 0659 – 12 – 1706
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515068

EAT PRACTICE AND PROCEDURE – Amendment
The Employment Judge wrongly refused to allow the Claimant to join as a Respondent the end user in a triangular agency relationship when that Respondent was said to be an undisclosed principal. Equality Act 2010 ss.109-110 applicable. The EAT allowed the amendment and remitted the case to the Employment Judge for further directions.

McMullen QC J
[2013] UKEAT 0058 – 13 – 1706
Bailii
Equality Act 2010 109 110
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.515070

[2001] UKEAT 0181 – 01 – 1206
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.203935

EAT Time Limits –

His Hon Judge D M Levy QC
EAT/0733/01
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.175069

The Employment Tribunal (‘the ET’) held that (1) section 105 of the Utilities Act 2000 was incompatible with the Convention Rights of the Claimant. The ET held (2) that it was ‘possible’, in accordance with section 3 of the Human Rights Act 1998 , to read section 105 so as to be compatible with the Claimant’s Convention Rights by inserting a new paragraph in section 105(6).
The Respondent appealed only against the second finding.
The Employment Appeal Tribunal (‘EAT’) analysed the statutory context and the Authorities on section of the Human Rights Act 1998 . The EAT decided that the ET erred in law in its approach to the interpretation of section 105. The parties agreed that the EAT should substitute its decision for that of the EAT. The EAT decided that it was not possible to read section 105 so as to be compatible with the Claimant’s Convention Rights, and that that was the only conclusion which it had been open to the ET to reach. The EAT accordingly substituted its Decision for that of the ET

[2018] UKEAT 0044 – 17 – 1012
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.631858

EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Procedural fairness/automatically unfair dismissal
Claimant was dismissed because the Appellant employer believed he had neglected his duties and subsequently lied about the matter. The Employment Tribunal’s decision that this was not a reason which related to his conduct was unsupportable. Further the ET’s decisions that there were in any event no reasonable grounds for the employer’s belief, that they failed to carry out a reasonable investigation and that the sanction of dismissal were unreasonable were based on irrelevant considerations and/or overlooked important considerations and/or involved the ET substituting its views for those of the employer. Case remitted to be heard by a fresh ET.

Shanks J
[2013] UKEAT 0054 – 13 – 0807
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.514417

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant, a practising barrister employed by a solicitors firm, was a litigant in person in her sex discrimination claims which all failed. In considering the claims, the Tribunal held that the credibility of the parties was central and found against the Claimant in three relevant respects based, in part, upon what she put in her written submission. There was no breach of the principle of equality of arms, the Respondent being represented by leading counsel, in holding against her what she had written in her submission. No other complaint of unfair treatment was made. The Claimant had a fair trial.

McMullen QC J
[2013] UKEAT 0225 – 12 – 0608
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.514419

EAT UNFAIR DISMISSAL – Mitigation of loss
PRACTICE AND PROCEDURE – Costs
In their decision on liability the Employment Tribunal held that the Respondent trade union had not established that the reason for the Claimant’s dismissal was redundancy. The dismissal was unfair. They went on to hold that the ‘redundancy’ was a ‘ruse’ to terminate his employment. The Employment Tribunal relied upon the ‘ruse’ finding to hold that the Claimant had not acted unreasonably in refusing to attend an interview with the Respondent to effectively re-apply for his job. They therefore found that he had not failed to mitigate his loss. A maximum compensatory award was made. The ‘ruse’ finding was also relied upon to hold that the Respondent had acted unreasonably and that a costs order should be made against them.
The finding of unfair dismissal was not appealed. The conclusion that ‘redundancy’ was a ‘ruse’ to dismiss the Claimant was not Meek compliant. The reader of the Judgment could not know the reason for the finding. The Claimant had alleged in his ET1 that his dismissal was connected with his candidacy for the post of General Secretary. The Employment Tribunal expressly declined to make any findings in relation to this allegation. Reference was made by the Employment Tribunal to evidence about dissatisfaction with the Claimant’s performance but there was no express finding that this was the reason for dismissal nor did the findings of fact necessarily lead to such a conclusion. ‘Ruse’ was a key finding in the award of compensation and costs. The finding was not explained. Appeals allowed. Compensation and costs remitted to a different Tribunal for determination having regard to relevant matters including their findings on the reason for dismissal (finding that it was not redundancy to stand), whether the Claimant failed to mitigate his loss and in the light of the reason for his dismissal, should an award of costs be made against the Respondent. All finding of fact in the three Judgments were on liability, remedy and costs to stand save that specified passages in those Judgments relating to the finding of ‘ruse’ were to be removed.

Slade J
[2013] UKEAT 0007 – 13 – 1906
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.514414

EAT UNFAIR DISMISSAL – Mitigation of loss
PRACTICE AND PROCEDURE – Costs
In their decision on liability the Employment Tribunal held that the Respondent trade union had not established that the reason for the Claimant’s dismissal was redundancy. The dismissal was unfair. They went on to hold that the ‘redundancy’ was a ‘ruse’ to terminate his employment. The Employment Tribunal relied upon the ‘ruse’ finding to hold that the Claimant had not acted unreasonably in refusing to attend an interview with the Respondent to effectively re-apply for his job. They therefore found that he had not failed to mitigate his loss. A maximum compensatory award was made. The ‘ruse’ finding was also relied upon to hold that the Respondent had acted unreasonably and that a costs order should be made against them.
The finding of unfair dismissal was not appealed. The conclusion that ‘redundancy’ was a ‘ruse’ to dismiss the Claimant was not Meek compliant. The reader of the Judgment could not know the reason for the finding. The Claimant had alleged in his ET1 that his dismissal was connected with his candidacy for the post of General Secretary. The Employment Tribunal expressly declined to make any findings in relation to this allegation. Reference was made by the Employment Tribunal to evidence about dissatisfaction with the Claimant’s performance but there was no express finding that this was the reason for dismissal nor did the findings of fact necessarily lead to such a conclusion. ‘Ruse’ was a key finding in the award of compensation and costs. The finding was not explained. Appeals allowed. Compensation and costs remitted to a different Tribunal for determination having regard to relevant matters including their findings on the reason for dismissal (finding that it was not redundancy to stand), whether the Claimant failed to mitigate his loss and in the light of the reason for his dismissal, should an award of costs be made against the Respondent. All finding of fact in the three Judgments were on liability, remedy and costs to stand save that specified passages in those Judgments relating to the finding of ‘ruse’ were to be removed.

Slade J
[2013] UKEAT 0008 – 13 – 1906
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.514415

EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
An employee was employed by an agency which placed him in work with a client whose identity was specified in the contract of employment. When that client no longer had need for the services of the Claimant, he was offered the choice of 2 weeks’ notice, plus redundancy pay, or 2 week’s notice, with the agency seeking out fresh work with a view to his entering into a new contract to do that work. He chose the former. The Tribunal thought the termination of the employment was consensual, such that no claim for unfair dismissal could be maintained. It was held that the question to be asked for the purposes of unfair dismissal proceedings was whether the contract of employment had been terminated by the employer, not the similar question arising if the question had been the right to a redundancy payment, which (expressed broadly) is whether the employment relationship had been brought to an end. The ET had construed the contract as providing that the Claimant was to work for a specific client. It was right to do so. The contract by which the agency provided that the Claimant would work for that client ended; no party argued it was frustrated; the agency could no longer perform it. In the circumstances it was terminated by the agency. The choices offered to the Claimant both involved his being given notice.
An argument that ‘notice’ and ‘redundancy’ were loose terms, not intended to have their formal meaning, and that when HR wrote to the Claimant to tell him he could appeal against his redundancy and he exercised the right to do so, this was meaningless (since he had already asked to be given notice and to be paid redundancy pay) was rejected as unrealistic.
The appeal was allowed and a finding that there had been dismissal was substituted.

Langstaff P J
[2013] UKEAT 0003 – 13 – 2506
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.514416

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Appellant complained of race discrimination by victimization by having a long suspension imposed on him. He had had the opportunity to complain about the matter in the context of earlier proceedings and offered no good reason for not doing so. In the circumstances the Employment Judge’s decision that the complaint was an abuse of the process under the rule in Henderson v Henderson could not be faulted.

Shanks J
[2013] UKEAT 0624 – 12 – 0207
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.514418

The claimant’s employment action had been struck out when the Tribunal concluded that given the medical evidence a fair trial would not be possible within the forseeable future.

Mummery, Longmore, Rimer LJJ
[2013] EWCA Civ 951, [2013] IRLR 966
Bailii
England and Wales
Citing:
Cited – Andreou v Lord Chancellor’s Department CA 22-Jul-2002
The Claimant had requested a postponement of the tribunal hearing on the basis of a medical certificate which stated that she was unfit to attend work. It therefore adjourned the proceedings for one week with directions that a medical report be . .
Cited – Dr Y R Teinaz v Wandsworth Borough Council CA 16-Jul-2001
The applicant had made a claim to the tribunal, but then applied for an adjournment on medical grounds, submitting a medical certificate.
Held: Where a refusal to exercise a discretion could lead to the loss of significant rights, a court . .
Appeal from – Riley v The Crown Prosecution Service EAT 13-Jun-2012
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge did not err, whether as a matter of law or as a matter of the exercise of his case management powers, in the circumstances and on the . .

Cited by:
Cited – Emuemukoro v Croma Vigilant (Scotland) Ltd and Another (Practice and Procedure) EAT 22-Jun-2021
Response Properly Struck Out – Non-compliance
On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 November 2021; Ref: scu.514248

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge did not err, whether as a matter of law or as a matter of the exercise of his case management powers, in the circumstances and on the medical evidence, in striking out this claim, pursuant to Rule 18(7)(f) of the ET Rules 2004, on the ground that it was no longer possible to have a fair trial in these proceedings.

Wilkie J
[2012] UKEAT 0043 – 12 – 1306
Bailii
England and Wales
Cited by:
Appeal from – Riley v The Crown Prosecution Service CA 30-Jul-2013
The claimant’s employment action had been struck out when the Tribunal concluded that given the medical evidence a fair trial would not be possible within the forseeable future. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 November 2021; Ref: scu.460391

EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was set aside by EAT and therefore costs order should also be set aside as it resulted from the striking-out order. Fresh Tribunal to consider appellant’s conduct at conclusion of the case. Tribunal correct to impose andpound;1000 to reflect the Appellant’s disgraceful conduct at the Tribunal hearing which necessitated a further costs hearing.

His Honour Judge Ansell
[2006] UKEAT 0601 – 05 – 1808, UKEAT/0601/05
Bailii, EAT
England and Wales
Citing:
See Also – Blockbuster Entertainment Ltd v James CA 25-May-2006
The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a . .
See Also – James v Blockbuster Entertainment Ltd EAT 6-Oct-2005
EAT Practice and Procedure
Strike out case. ET struck out two claims for failing to comply with tribunal orders. Whether a proportionate sanction; whether they erred on a proper understanding of facts. . .

Cited by:
Appeal from – James v Blockbuster Entertainment Ltd CA 23-Oct-2008
The claimant renewed his application for leave to appeal.
Held: The claimant’s first ground was unarguable. His original application failed to comply with the requirements of the 2002 Act. On the second ground, the tribunal had disagreed with . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 November 2021; Ref: scu.257860

[2001] UKEAT 1236 – 00 – 0502
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.203592

[1997] UKEAT 1089 – 96 – 1002
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.207244

[1997] UKEAT 692 – 97 – 1002
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.207261

Practice and Procedure
An Employment Judge struck out the claimant’s claims on the basis that the (i) that the manner in which the proceedings had been conducted by the claimant had been scandalous, unreasonable and vexatious and (ii) because the claims had no reasonable prospect of success. The claimant had claimed that a series of audio recordings revealed comments in English and Chinese demonstrated her colleagues using foul and obscene sexual, violent and other abusive language about her. The Judge listened to some of the tapes and concluded that none of the comments which were contained in the purported transcript were audible, and that, in so far as they were audible the tapes contained nothing of a sinister nature. Given the manner in which the claimant had brought and conducted her claims he struck them out.
Following a 3(10) hearing the appeal was limited to the single issue whether the Employment Judge had erred in failing to differentiate between the discrimination claims and the unfair dismissal claims. He had grouped the allegations into categories with a final category headed ‘the remaining allegations’. There was nothing to suggest that Judge had had the Unfair Dismissal claim in mind as such an ‘allegation’. Unfair Dismissal legislation requires an employer to demonstrate the reason for a dismissal, so any lack of credibility on the part of a claimant in relation to issues on which she bore the burden of proof would not necessarily be fatal to such a claim. The reasons failed to explain why the Unfair Dismissal claim had been struck out and the appeal was allowed. The issue was remitted to a differently constituted Tribunal

[2021] UKEAT 2019-001042
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.669836

Response Properly Struck Out – Non-compliance

On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures meant that it was impossible for the trial to proceed within the five-day trial window. The short issue in this Appeal is whether the Tribunal erred in law in striking out the Respondents’ Response.
Held, dismissing the appeal, that the Tribunal did not err in law. It was not necessary, in order for the power to strike to out to be triggered, for a fair trial not to be possible at all; it is enough for the power to be exercisable that, as a result of a party’s conduct, a fair trial was not possible within the trial window.

[2021] UKEAT 2020-000006
Bailii
Employment Tribunal Constitution (Rules and Procedure) Regulations 2013
England and Wales
Citing:
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Blockbuster Entertainment Ltd v James CA 25-May-2006
The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a . .
Cited – Riley v The Crown Prosecution Service CA 30-Jul-2013
The claimant’s employment action had been struck out when the Tribunal concluded that given the medical evidence a fair trial would not be possible within the forseeable future. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 November 2021; Ref: scu.669837

[1997] UKEAT 257 – 96 – 0702
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.207243

T-173/05, [2006] EUECJ T-173/05, [2006] EUECJ T-173/05
Bailii, Bailii
European

Employment

Updated: 19 November 2021; Ref: scu.247380

[2001] UKEAT 1107 – 00 – 0703
Bailii
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.203708

EAT MATERNITY RIGHTS AND PARENTAL LEAVE – Pregnancy
SEX DISCRIMINATION – Pregnancy and discrimination
Discrimination on the grounds of pregnancy – the Employment Tribunal applied the wrong statutory provision and referred to and apparently applied the wrong comparator. Victimisation – the Employment Tribunal referred to and may have applied the wrong comparator.

[2013] UKEAT 0602 – 12 – 1806
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514351

EAT PRACTICE AND PROCEDURE
Disclosure
Costs
Appeal concerning various issues of disclosure and costs. Appeal allowed in respect of one issue of disclosure and in respect of the Tribunal’s approach to the question of ability to pay. Appeal dismissed in all other respects. Application to amend Notice of Appeal refused.

David Richardson L
[2013] UKEAT 0185 – 13 – 1308
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514354

EAT UNFAIR DISMISSAL – Automatically unfair reasons
Burden of proving the ‘whistleblowing’ reason for dismissal under s.103A Employment Rights Act 1996 lies on the employee who has insufficient continuous service to bring a claim of ordinary unfair dismissal. Smith v Hayle applied.
However, the case was not decided by this Employment Tribunal on the burden of proof. See observation of Mummery LJ in Kuzel v Roche, para. 55.
Claimant’s appeal dismissed (ET finding as to reason (conduct)) not a perverse conclusion.

Peter Clark J
[2013] UKEAT 0068 – 13 – 0808
Bailii
Employment Rights Act 1996 103A
England and Wales
Citing:
Cited – Smith v Hayle Town Council CA 1978
In a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal, the court considered the allocation of the burden of proof in employment cases.
Held: The burden is upon he who is seeking to rely . .
Cited – Marley Tile Co Ltd v Shaw CA 1980
The employers were a well known roofing and tiling firm, Marley Tiles . The employer sought to impose post employment restrictions including a restriction on canvassing soliciting or dealing with customers in the whole of Devon and Cornwall. Within . .
Cited – Maund v Penwith District Council CA 1984
The employee alleged that he had been dismissed for trade Union activities. The Industrial Tribunal held that he had the burden of proving that. The EAT disagreed.
Held: The appeal against the decision of the EAT failed.
Griffiths LJ . .
Cited – Dr Kuzel v Roche Products Ltd EAT 2-Mar-2007
EAT Unfair Dismissal – Automatically unfair reasons
Public Interest Disclosure
Section 103A of the Employment Rights Act 1996 inadmissible reason for dismissal – burden of proof – whether Protected . .
Cited – Kuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
Cited – Jackson v ICS Group of Companies Ltd EAT 22-Jan-1998
The claimant appealed against the dismissal of his unfair dismissal application. Not having two years continuous employment he had claimed the protection of section 100 as a whistleblower, but the Tribunal had found that there had been a Health and . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 November 2021; Ref: scu.514355

EAT PRACTICE AND PROCEDURE – Amendment
Whether point sufficiently raised by Claimant before Employment Tribunal; see Chapman v Simon. On the particular facts of this case it was; Respondent had ample opportunity to deal with it. ET Judgment upheld on Respondent’s appeal.

Peter Clark J
[2013] UKEAT 0563 – 12 – 0307
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514352

EAT PRACTICE AND PROCEDURE
Amendment
Striking-out/dismissal
Costs
An Employment Judge exercising discretion on out of time claims, amendment and deposit order made no error of principle and his judgment would not be disturbed.

McMullen QC J
[2013] UKEAT 0004 – 13 – 1206
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514349

EAT UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
The issue to be determined was whether the Employment Tribunal erred in failing to hold that the Claimant’s continuity of employment was preserved by operation of the Employment Protection (Continuity of Employment) Regulations 1996 between the date of his dismissal and his reinstatement. It was held that for such continuity to be preserved three elements must be present: (1) the employee was dismissed by the Respondent; (2) he has presented a relevant complaint of dismissal; and (3) that in consequence of presenting such a relevant complaint he is reinstated or re-engaged. The presentation of a complaint of unfair dismissal to an Employment Tribunal which is related to the reinstatement or re-engagement is a ‘relevant complaint of dismissal’ within the meaning of Regulation 219(2)(b). This is the natural meaning of the words and does not depend on the extended definition of ‘relevant complaint of dismissal’ in the now repealed ERA section 219(3). It was not necessary to determine whether complaints of discrimination by dismissal which were previously included in the now repealed definition are still to be regarded as ‘a relevant complaint of dismissal’. Matter remitted to the ET to determine whether the Claimant was reinstated in consequence of bringing a complaint of unfair dismissal.

Slade J
[2013] UKEAT 0288 – 12 – 0606
Bailii
Employment Protection (Continuity of Employment) Regulations 1996
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514350

EAT Unfair Dismissal : Contributory Fault – Polkey deduction – The Employment Tribunal did not order reductions for Polkey on contribution because the dismissal was automatically unfair. Held that such reductions were permissible depending on facts. Case remitted to a differently constituted ET.

Serota QC
[2013] UKEAT 0409 – 12 – 2905
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514344

EAT PRACTICE AND PROCEDURE – Costs
Appeal concerning the refusal of an Employment Tribunal to award costs, largely on grounds that (1) an underlying finding of the Tribunal was perverse and (2) the Tribunal gave insufficient and inadequate reasons for its refusal.
Appeal dismissed. Barnsley Metropolitan Borough Council v Yerrakalva [2012] ICR 420 and Dean and Dean (A Firm) and Others v DionissiouMousaaoui [2011] EWCA Civ 1332 applied.

David Richardson J
[2013] UKEAT 0259 – 12 – 1005
Bailii
England and Wales
Citing:
Cited – Barnsley Metropolitan Borough Council v Yerrakalva CA 3-Nov-2011
The claimant had issued claims in discrimination. She withdrew the claim, but still had a costs order made against her. She appealed and succeeded, and the Council now sought re-instatement of the costs order.
Held: The Court made clear the . .
Cited – Dean and Dean Solicitors v DionissiouMoussaoui CA 17-Nov-2011
The court considered the limited role of an appellate court, being vested only with jurisdiction to entertain questions of law when it considers a Tribunal’s decision on the question of costs. Mummery LJ said: ‘This court is not entitled to . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 November 2021; Ref: scu.514347

EAT Sexual Orientation Discrimination/Transexualism – Claimant (C) succeeded at the Employment Tribunal (ET) on a claim that he had been victimised (by his dismissal) for raising concerns about homophobic treatment at the workplace. However, the ET additionally decided that (1) he would have been dismissed 4 days later in any event and (2) his claims in respect of harassment by remarks directed to his sexual orientation (a gay man) were not made out.
Claimant’s appeal on both aspects allowed:
(1) The ET had failed to explain why it had decided that it was inevitable that C would have been dismissed 4 days later. That was the scheduled date of a disciplinary hearing. The notice for that hearing warned that it could lead to dismissal. There had been no earlier written warnings. The history of earlier responses to concerns about C’s employment had been to move him to other posts at higher salaries. The ET failed to explain, in the light of that history, why dismissal was inevitable as opposed to being a possibility.
(2) The ET failed to grasp and address the actual evidence on two harassment complaints and its Judgment muddled the facts as to them. It also failed to apply the correct approach required by the regulations.

Luba QC
[2013] UKEAT 0590 – 12 – 1605
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514346

mandrew_cledorEAT2013

EAT UNFAIR DISMISSAL
The Claimant was ordered to supply particulars of her claim for sex discrimination against both Respondents. When she did so the Respondents maintained that the particulars went beyond the claim as set out in the ET1 and attachment and that she would therefore need leave to amend in order to include the particulars in her claim. The Employment Judge agreed that the particulars went beyond the ET1 and refused leave to amend. The appeal was allowed to proceed solely on whether the EJ was correct in his reading of the ET1. The EAT decided that on a proper reading of the ET1 it contained one particular claim for sex iscrimination/harassment which could be pursued, but that the EJ’s decision to refuse leave for any amendment adding any other claim would be upheld.

Shanks J
[2013] UKEAT 0111 – 13 – 0608
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514290

EAT PRACTICE AND PROCEDURE
Review
New evidence on appeal
At a remedies hearing the Respondent argued that the Claimant would have been made redundant shortly if he had not been unfairly dismissed. Oral evidence as to their redundancy policy was given. The hearing was not completed and was adjourned so that the parties could provide written closing submissions before the Tribunal reached a decision.
The Claimant asked for a copy of the Respondent’s redundancy policy document. The Respondent had not disclosed it and did not produce it at the hearing. They declined to produce it after the hearing but before the Tribunal reached a decision. The Claimant subsequently got hold of it by another route; it differed from the oral evidence given about it by the Respondent to a material degree. The Claimant sought but was refused a review. He appealed against the substantive award of compensation and against the refusal of a review.
The EAT heard oral evidence about what had passed between the parties as to the redundancy document and as to the Respondent’s withholding of it. At the end of that evidence there was no time to proceed to argument and the appeal had to be adjourned. An indication was given that the EAT might regard the Claimant’s evidence as preferable.
Before the resumption of the appeal, the parties agreed that the first appeal should be allowed and the remedies issues remitted to a new tribunal. The EAT had, however, to resume the hearing, albeit only to give a judgment. Two points of practical importance are set out in the judgment:-
The parties to an appeal cannot of themselves agree that an appeal shall be allowed; the judgment of a court or tribunal can only be overturned by the judgment of an appellate court or tribunal.
Issues relating to new evidence, such as the redundancy document in this case, should be addressed by the ET’s review process and should not need to be dealt with by the EAT.

Jeffrey Burke QC
[2013] UKEAT 0314 – 12 – 0205
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514288

EAT CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
The Employment Judge did not err in construing an agreement reached between Ford, the transferor, and Trade Unions as not including a six year time limit on a term giving transferring employees a contractual entitlement to have their pay terms ‘mirror’ those of Ford employees. There was no basis for reading into a provision which gave them the entitlement ‘for the duration of their employment’ a limitation of six years which was the time within which new bargaining structures for transferred employees would have to be established and after which transferred employees would not be covered by Ford collective bargaining arrangements. However the Employment Judge erred in holding that the pay terms of transferring employees, including ‘mirroring’ were not within the scope of the new bargaining arrangements established by UNITE with the Respondent. The contractual ‘mirroring’ term could be varied or replaced by agreement. However at the time of the hearing before the Employment Judge no such agreement had been reached. Appeal dismissed.

Slade J
[2013] UKEAT 0010 – 13 – 0708
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514292

The deceased had been dismissed for medical incapacity, and his PRs now complained as to the treatment of his pensions entitlement.

Moore-Bick, Pitchford, Underhill LJJ
[2013] EWCA Civ 972, [2013] Pens LR 347, [2013] IRLR 812, [2013] ICR 1257, [2013] WLR(D) 330
Bailii, WLRD
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514236

[2013] EWCA Civ 974
Bailii
England and Wales
Citing:
Appeal from – Shumba and Others v Park Cakes Ltd EAT 28-Nov-2012
EAT REDUNDANCY – Contractual scheme
It was the Claimants’ case – and the Claimants adduced evidence – that enhanced redundancy payments were made under a scheme without exception for a substantial period . .

Cited by:
Cited – Davies v London Borough of Haringey QBD 17-Oct-2014
The claimant had been employed as a teaching assistant. She came to work with the union, eventually being released from her work full time to undertake the role within the union. The defendant suspended the claimant from her role for alleged . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 November 2021; Ref: scu.514244

[2013] EWCA Civ 973
Bailii
England and Wales

Employment

Updated: 18 November 2021; Ref: scu.514250

EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether choice of companion to accompany employee at grievance hearing must be ‘reasonable’ (No). Whether employee refused first choice of companion waives right to be accompanied by him if, he chooses another (No).
(Section 10 Employment Relations Act 1999)

Mitting J
[2013] UKEAT 0569 – 12 – 2205, [2013] IRLR 696
Bailii
Employment Relations Act 1999 10
England and Wales
Cited by:
Considered – Roberts v GB Oils Ltd EAT 14-Oct-2013
EAT Right To Be Accompanied – This appeal invited us to reconsider the recent EAT decision in Toal and Hughes v GB Oils Ltd [2013] IRLR 696 that the Employment Tribunal in considering whether where there has been . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 November 2021; Ref: scu.514169