Citations:

[1995] UKEAT 55 – 95 – 2107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.209267

EAT Jurisdiction
EAT Contract of Employment – Written particulars.

Judges:

His Hon Judge J R Reid QC

Citations:

[2002] UKEAT 0301 – 01 – 0305, EAT/0301/01

Links:

Bailii, EAT, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Thomas v Merton Racial Equality Council EAT 24-Mar-1999
. .
See Also – London Borough of Merton v Thomas EAT 27-Mar-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.202855

Citations:

[1995] UKEAT 787 – 93 – 2107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.209240

Citations:

[1995] UKEAT 233 – 95 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.209595

Citations:

[2002] UKEAT 1029 – 01 – 2504

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – OwusuAnsah v Woolworths Plc Eastern CA 27-Sep-2002
. .

Cited by:

See Also – OwusuAnsah v Woolworths Plc Eastern CA 27-Sep-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.202749

Citations:

[1997] UKEAT 1349 – 96 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – De Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.207095

Lord Russell of Killowen said: ‘The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it.’ It should not examine the tribunal decision with a ‘fine-tooth comb’.
Lord Denning MR said: ‘So reading between the lines, it seems to me that, although not explicitly stated in the Reasons, this Tribunal very probably did have all the considerations in mind which it is not suggested they may not have had.’

Judges:

Lord Russell of Killowen, Lord Denning MR, Eveleigh LJ

Citations:

[1978] 1 WLR 763, [1978] ICR 437

Jurisdiction:

England and Wales

Cited by:

Cited – Bryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
Cited – Greenwood v Whiteghyll Plastics Ltd EAT 6-Aug-2007
EAT Reason for dismissal including substantial other reasonable adjustments
Reasonableness of dismissal
Claimant dismissed because major customer of Respondent stated that claimant was banned from its . .
Cited – Slee v Secretary of State for Justice (1) Admn 19-Nov-2007
The claimant sought compensation under the Regulations as a result of her dismissal on the re-organisation of the Magistrates Court at Wimbledon from her position as court clerk. The EAT had allowed her claim for unfair dismissal. Her position on . .
Cited – Barclays Bank Plc v Mitchell EAT 11-Feb-2014
EAT Victimisation Discrimination : Whistleblowing – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke – Employment Tribunal failed to explain sufficiently their reasoning on the causation issue . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.186771

Where an employer uses insurance policies for the benefit of employees there is an implied duty on the part of the employer to use its best endeavours to ensure that the insurance company gives proper consideration to the employees’ claims. The insurance company had misread the terms and conditions of the insurance policy and refused to pay when it should have done.
Held: The employer was required to pay the insurance shortfall to the employees as a debt.
Staughton LJ said, obiter, that there was a ‘good deal to be said’ for the view that the employee could not be dismissed save for cause after becoming entitled to receive benefits under a long-term sick scheme.

Judges:

Staughton LJ

Citations:

[1997] EWCA Civ 1954, [1997] IRLR 639

Jurisdiction:

England and Wales

Cited by:

Cited – First West Yorkshire Ltd (T/A First Leeds) v Haigh EAT 20-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Where an employee is long-term absent on grounds of ill health, and his pension scheme contains provisions entitling him to an ill health pension on grounds . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.142350

Claim for damages for wrongful dismissal

Judges:

His Honour Judge Simpkiss (sitting as a Deputy Judge of the High Court)

Citations:

[2019] EWHC 2996 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.645968

The Claimant complained to an Employment Tribunal that she had been discriminated against by the GMC (a qualifications body). The GMC contended that section 120(7) Equality Act precluded jurisdiction, since judicial review afforded an appeal for the acts complained of, was provided for by statute and came within the meaning of ‘appeal’ as explained by Hoffmann J in Khan v GMC.
At a Preliminary Hearing, the Employment Judge wrongly failed to recognise he was bound by the decision of the Employment Appeal Tribunal in a case which was directly in point (Jooste); and therefore permitted the proceedings to continue in part. Similarly, he permitted proceedings to continue against two named Respondents personally, when on the same principles as accepted in Jooste he should not have done. Thirdly, after the Notice of Appeal was served, he purported to be exercising the slip rule of his own motion when in fact he was setting out fresh relevant conclusions, as to which he should have heard submissions first.
On appeal, it was held that Jooste would be followed, though there were sufficient reasons to doubt that it was correct for permission to appeal to be given.

Judges:

Langstaff P J

Citations:

[2014] UKEAT 0213 – 14 – 2511

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Michalak, Regina (on The Application of) v General Medical Council Admn 22-Jul-2011
Dr M sought judicial review of a decision by the respondent to continue its investigation of her by the Fitness to Practice panel. That panel, after hearing substantial evidence had to restart on the panel medical member was unable to continue with . .

Cited by:

Appeal from – Michalak v The General Medical Council and Others CA 23-Mar-2016
The court considered the remedies and routes of appeal available to individuals who claim to have suffered from discrimination, victimisation, harassment or detriment in the treatment that they have received from a qualifications body. In . .
At EAT – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.551971

Application for leave to apply for judicial review consequent upon his dismissal from his position as Civil Engineer in the Department of Regional Development.

Citations:

[2014] NIQB 84

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 04 October 2022; Ref: scu.533908

EAT RACE DISCRIMINATION – Indirect
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Costs
The Employment Judge correctly struck out the Claimant’s claims as having no prospect, and being misconceived. At a rolled up rule 3(10) and all-parties preliminary hearing, the EAT held the Employment Tribunal had no jurisdiction on the Claimant’s claims against the regulator of care homes and the GMC. He had a remedy in judicial review and so was excluded by Equality Act 2010 s120(7).
Dr Jooste claimed that the acts of an ‘Interim Orders Panel’ of the GMC suspending his registration were discriminatory under the Equality Act. Judge McMullen, sitting in the Employment Appeal Tribunal, upheld the decision of the Employment Tribunal, that it had no jurisdiction to hear the claimant’s complaints against the GMC as the remedy available in judicial review was an alternative statutory remedy under section 120(7). McMullen QC HHJ upheld the decision of the Employment Tribunal, that it had no jurisdiction to hear the claimant’s complaints against the GMC as the remedy available in judicial review was an alternative statutory remedy under section 120(7). At para 44 of his judgment he said that ‘an appeal simply is the opportunity to have a decision considered again by a different body of people with power to overturn it.’

Judges:

McMullen QC HHJ

Citations:

[2012] UKEAT 0093 – 12 – 0407

Links:

Bailii

Statutes:

Equality Act 2010 120(7)

Jurisdiction:

England and Wales

Citing:

See Also – Jooste v General Medical Council Admn 19-Oct-2010
. .

Cited by:

Dictum disapproved – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.463767

EAT Practice and Procedure : Striking-Out/Dismissal- Employment Tribunal to take the same approach where considering making a deposit order as it does when considering striking out a claim. Where there were underlying disputes of fact, the Employment Tribunal Judge erred in relying solely on the contents of contemporaneous correspondence which were inconsistent with the Claimant’s version of events as sufficient to conclude that there was no reasonable prospect of success in making a discrimination claim.

Judges:

Wilkie J

Citations:

[2011] UKEAT 0287 – 11 – 0112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450636

EAT Victimisation Discrimination : Interim Relief – WORKING TIME REGULATIONS
Whether employee who had not opted out of 48 hour working week (WTR reg. 4(1)) suffered detrimental treatment when refused the opportunity to work voluntary overtime on a rest day.
Consideration of s.45A ERA and relevant discrimination/victimisation cases.
Held: complaint failed. The reason why he was refused rest day working was not because he refused to sign the opt out but in order to implement a policy, found by the Employment Judge to be reasonable, to ensure compliance with the qualified duty on the employer imposed by reg. 4(2) WTR.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0293 – 11 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450633

EAT Practice and Procedure : Striking-Out or Dismissal – Costs
It was open to the Employment Judge to strike out part of the Claimant’s claim, the remainder being later dismissed at a full hearing. The Employment Judge was entitled to find that the Claimant jumped the gun in bringing her claim that the Respondent had not promptly investigated her complaint, and to award costs relating to that part of the claim. Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, Dean and Dean [2-11] EWCA Civ 1331 and Arrowsmith [2011] EWCA Civ 797 applied.
HIS HONOUR JUDGE McMULLEN QC

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0296 – 11 – 0911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450631

EAT Practice and Procedure : Postponement or Stay – The four decisions of Employment Judges to order, and to refuse to postpone, a 5 day hearing were set aside. The Employment Judges took account of an incorrect factor, holding that the Appellants had agreed the dates when they had not. On the parties’ agreement that the EAT should now decide the matter, on the full material today, the application for a postponement was allowed. Costs awarded to the Respondent under Employment Tribunal rule 40(1) and EAT rule 34A(2)(c) as the postponement had been caused by the Appellants.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0625 – 11 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450634

EAT Practice and Procedure : Case Management – Disclosure – Recovery of documents. Documents in USA. Haver in USA. Competency. Choice of law. Legal professional privilege. Post Litem Motam exclusion.

Judges:

Smith J

Citations:

[2011] UKEAT 0038 – 11 – 2012

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450637

EAT Redundancy : Suitable Alternative Employment – Did the Employment Tribunal err in law in concluding that the Appellant had unreasonably refused an offer of alternative employment for her own reasons, when it had correctly concluded that the offer was an offer of suitable employment which a reasonable employee could have accepted?

Judges:

Wilkie J

Citations:

[2011] UKEAT 0116 – 11 – 0112

Links:

Bailii

Statutes:

Employment Rights Act 1996 141

Jurisdiction:

England and Wales

Citing:

Cited – Executors of J F Everest v Cox 1980
The reasonableness of an employee’s refusal of suitable alternative employment depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view: ‘The employee’s behaviour and conduct must be judged, . .
Cited – Cambridge and District Co-Operative Society Ltd v Ruse EAT 15-May-1992
The employee had succeeded in his claim for redundancy. The employer appealed saying that it had made a suitable offer of alternative employment.
Held: An employee may refuse an offer of employment which a Tribunal concludes was a suitable . .
Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.450635

EAT Practice and Procedure : Appellate Jurisdiction / Reasons / Burns-Barke – Costs – While pursuing a review the Claimant did not lodge an appeal for 15 months. Discretion to extend time was refused. At the review the judgment was correctly affirmed. The appeal against the order for costs of the review was allowed to proceed to a full hearing.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0231 – 11 – 2311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450632

EAT Practice and Procedure : Costs – The Claimant was ordered to pay a contribution of andpound;500 to the Respondent’s costs when she applied on the day of the PHR for a postponement on grounds known to her much earlier. Her conduct was unreasonable. Applying Barnsley and Dean and Dean the EAT would not overturn this exercise of discretion. Even if the Employment Judge were wrong under rule 40(2) she was unarguably right under rule 40(1) (adjournment) which does not require a pejorative finding. Her application to the EAT to adduce fresh evidence was refused: Ladd v Marshall applied.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0225 – 11 – 2511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450629

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns -Barke – Three appeals were out of time and there was no exceptional reason to exercise discretion to enlarge time. An appeal under ETA s 21(1) on a question of law is not confined to judicial decisions but includes any matter arising in Employment Tribunal proceedings regardless of whether a decision is made by a judge.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0703 – 11 – 2311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450630

EAT Unfair Dismissal : Reasonableness of Dismissal – The Claimant was dismissed for three reasons connected with misconduct. She did not advance any other reason, or say these were a pretext for a dismissal on grounds of dishonesty. The Employment Tribunal erred in rejecting the Respondent’s reasons and finding dishonesty: Wilson and ASLEF v Brady applied. The Employment Tribunal did not make findings against the Burchell test on the three reasons advanced by the Respondent, one of which was admitted by the Claimant. Remitted to a fresh Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0418 – 11 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450626

EAT Harassment Race Discrimination – Direct – Continuing act – The Employment Tribunal correctly found the Respondent discriminated against and harassed the Claimant contrary to the Race Relations Act. It failed to deal with the Claimant’s claims in respect of two earlier events which were ‘on grounds of race’ rather than the narrow and incorrect view of the Employment Tribunal as to ‘on the grounds of her race’. It erred in holding that, as the Claimant was not an immigrant, she was not protected when the Respondent referred to ‘fucking immigrants’. It failed to consider the four index events as a continuing act. The only conclusion of the Employment Tribunal on a correct direction would be to find in her favour. The EAT set aside that part of the Judgment and substituted a finding in the Claimant’s favour.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0267 – 11 – 2411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450628

EAT Unfair Dismissal : Compensation – The Respondent employer, a school, was debarred from defending, and the Employment Tribunal found that Claimant was unfairly dismissed. The ET found that the Appellant would have been dismissed – not on the basis of evidence but as a result of a submission. Case remitted to another ET to consider again basis upon which compensation awarded. Complicated by fact Appellant now deceased.

Judges:

Pugsley J

Citations:

[2011] UKEAT 0548 – 10 – 2608

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450619

Unfair Dismissal : Compensation – Polkey deduction

Judges:

Smith L

Citations:

[2011] UKEAT 0011 – 11 – 1410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450622

EAT In this case the Employment Tribunal found that the Claimant was unfairly dismissed due to his trade union activities. On the findings of fact the ET make, this was a decision clearly open to the ET as the appeal was dismissed. There was a factual basis on which the ET was entitled to draw an inference

Judges:

Pugsley J

Citations:

[2011] UKEAT 0172 – 11 – 3108

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450618

EAT Race Discrimination : Prospective Employees – Strike out of claim of race discrimination by way of victimisation when Respondent withdrew job offer on basis, Appellant believes, that they became aware of existing race discrimination complaints by Appellant against then employer. Respondent says job offer withdrawn because replacement no longer necessary. Factual matters, material to the determination of the critical question of why job offer withdrawn, that Appellant should not be denied opportunity of investigating. Judgment of Employment Judge set aside, in so far as it relates to victimisation. Case remitted to Employment Tribunal for determination.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0387 – 11 – 1711

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450627

EAT Contract of Employment : Disciplinary and Grievance Procedure – UNFAIR DISMISSAL – Constructive dismissal – At the disciplinary hearing matters were raised of which the Claimant was given no advance warning. However the matters had arisen after the disciplinary hearing had been arranged. The Claimant resigned in protest at the way in which the hearing was conducted and claimed constructive dismissal. Appeal allowed and sent back to a different Tribunal. There are a number of occasions in which it is difficult to see what findings the Employment Tribunal made. No finding at all as to whether the resignation was caused by the alleged breach of contract or whether the Claimant had decided to resign rather than be dismissed. Appeal allowed and sent back to a new Tribunal.

Judges:

Pugsley J

Citations:

[2011] UKEAT 0138 – 11 – 1708

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450616

EAT Sex Discrimination : Vicarious Liability – As the Employment Judge correctly found at a PHR, the Commissioner of the Metropolitan Police is responsible for the acts of sex discrimination by an officer of the City of London Police who line managed the Claimant, a civilian employee of the Commissioner. Sex Discrimination Act ss 17 and 42(2) applied.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0130 – 11 – 2211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450623

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal. Breach of Contract. Tribunal’s finding of unfair dismissal and breach of contract upheld. None of the lengthy grounds of appeal (substitution/perversity) demonstrated that the Tribunal had fallen into error.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0014 – 10 – 2411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450625

EAT Jurisdictional Points : Continuity of Employment – Appeal on the issue of whether the claim was in time to bring a claim for unfair dismissal. The Employment Judge had wrongly held that what took place was a ‘conditional dismissal’. This was an error of law: CF Capital plc v Willoughby [2011] IRLR 985. However, he was correct to find that the unilateral resignation had been withdrawn with the consent of the employer and the employment therefore continued until a further unilateral resignation which was accepted by the employer. Time began to run from the date of the second resignation.

Judges:

Birtles J

Citations:

[2011] UKEAT 0277 – 11 – 0701

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – CF Capital Plc v Willoughby CA 12-Oct-2011
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.450615

EAT Contract of Employment : Whether Established – SEX DISCRIMINATION – Jurisdiction – Unfair dismissal. Sponsorship of former mechanical engineering apprentice (Claimant) for university degree under a ‘University Sponsorship’ contract. Claimant withdrew from degree course and sponsor gave him the option of either resuming it or accepting an internship, both of which he declined. Sponsor refused him full time employment to which he considered he was entitled. Employment Tribunal found that he had been unfairly dismissed and awarded compensation (based on the full time rates payable to a semi skilled engineer – approaching matters on the basis that he had been continuously employed). On appeal, held that the Tribunal had erred. The Claimant was not employed under a contract of employment and had, accordingly, no rights under s.94 of the Employment Rights Act 1996.

Judges:

Lady Smith J

Citations:

[2011] UKEAT 0069 – 10 – 2211

Links:

Bailii

Statutes:

Employment Rights Act 1996 94

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450624

EAT WORKING TIME REGULATIONS
JURISDICTIONAL POINTS – Claim in time and effective date of termination
Working Time Regulations 1998 (‘WTR’). Time bar. Interpretation of WTR paragraph 30(2). On appeal, held that time started running on each occasion that the Claimants did not receive the daily rest to which they were entitled (or compensatory rest) and the Tribunal had not erred in finding that their claims were not time barred.

Judges:

Lady Smith J

Citations:

[2012] UKEAT 0028 – 11 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450526

EAT Jurisdictional Points : 2002 Act and Pre-Action Requirements – Claims under the Race Relations Act 1976 – Judge wrong to hold that employee had failed to lodge a relevant grievance for the purpose of section 32 of the Employment Act 2002 (dicta of Elias P in Martin v Class Security Installations Ltd that the relevant issue was one of mixed fact and law preferred to decision of Judge Burke QC in in Commotion Limited v Rutty); but correct to hold that the relevant claims were nevertheless out of time since the Claimant did not satisfy the conditions for an extension of time under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in relation to either his complaint about his dismissal or his ‘non-dismissal’ complaints – As regards the former, Towergate London Market Ltd v Harris distinguished – As regards the latter, held that the regime for extending time under regulation 15 did not permit a claimant to rely on a ‘dismissal complaint’ held that the Appellant could not rely on his dismissal, in respect of which the Tribunal had no jurisdiction, as the final term of a ‘an act continuing over a period’

Judges:

Underhill P J

Citations:

[2012] UKEAT 0547 – 10 – 2701

Links:

Bailii

Statutes:

Race Relations Act 1976, Employment Act 2002, Employment Act 2002 (Dispute Resolution) Regulations 2004

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450516

The claimant sought leave to appeal against a refusal to re-instate her claim against the defendant after her failure to comply with unless orders and the consequential strike out.

Judges:

Elias LJ

Citations:

[2012] EWCA Civ 21

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450499

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
RACE DISCRIMINATION – Direct
The Employment Tribunal was in error to hold that it had no jurisdiction to entertain a claim that might have been spelled out in the originating application but was not set out in Particulars ordered by the Tribunal.

Judges:

Serota J

Citations:

[2011] UKEAT 0508 – 10 – 2501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450487

EAT PRACTICE AND PROCEDURE – Imposition of deposit
Deposit Order: Employment Tribunal Rules, rule 20. Amount. Claimant’s ability to pay; whether student loan could be taken into account. Whether sufficient reasons. Whether deposit order for andpound;380 perverse.

Judges:

Smith J

Citations:

[2012] UKEAT 0030 – 11 – 1001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450488

EAT TRANSFER OF UNDERTAKINGS – Service provision change
Potential SPC under TUPE 2006, reg. 3(1)(b). Whether Employment Tribunal entitled to find that reg. 3(3)(b) exclusion (potential transferor’s activities consisted wholly or mainly of the supply of goods rather than services) applied. They were. Appeals dismissed.

Judges:

Peter Clarke J

Citations:

[2011] UKEAT 0021 – 11 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450285

EAT UNFAIR DISMISSAL – Constructive dismissal
Case remitted to Employment Tribunal after an earlier appeal, to consider (a) whether the Appellant was actually dismissed and (b) whether he was constructively dismissed – Tribunal decides issue (a) but not issue (b) – Remitted to a fresh Tribunal for determination of the remaining issue.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0095 – 11 – 2012

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450283

EAT TRANSFER OF UNDERTAKINGS – Service provision change
Potential SPC under TUPE 2006, reg. 3(1)(b). Whether Employment Tribunal entitled to find that reg. 3(3)(b) exclusion (potential transferor’s activities consisted wholly or mainly of the supply of goods rather than services) applied. They were. Appeals dismissed.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0022 – 11 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450275

EAT VICTIMISATION DISCRIMINATION – Interim relief
WORKING TIME REGULATIONS
Whether employee who had not opted out of 48 hour working week (WTR reg. 4(1)) suffered detrimental treatment when refused the opportunity to work voluntary overtime on a rest day.
Consideration of s.45A ERA and relevant discrimination/victimisation cases.
Held: complaint failed. The reason why he was refused rest day working was not because he refused to sign the opt out but in order to implement a policy, found by the Employment Judge to be reasonable, to ensure compliance with the qualified duty on the employer imposed by reg. 4(2) WTR.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0293 – 11 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450276

EAT PRACTICE AND PROCEDURE – Chairman alone
Judge alone heard complaint under s189 TULRCA 1992. No jurisdiction to do so under s.4(3)(a) ETA 1996. Appeal allowed. Case remitted for re-hearing by full Employment Tribunal.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0217 – 11 – 1811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450274

EAT UNFAIR DISMISSAL – Reasonableness of dimissal
These three cases were heard together. In two of the cases (Arriva Trains Wales v Ms F Conant and Yellow Pages Sales Limited v Mr R Walsh) the issue is whether the Employment Tribunal erred in law by substituting its own views on the fairness of the dismissal for those of the employer. The majority decision of the Employment Tribunal in those cases was that the Claimant was unfairly dismissed. In the third case (Mrs S Harber v Kelly Residential Limited t/a Portland Nursing Home) the Claimant appealed against the decision of an Employment Tribunal that she was fairly dismissed.
The approach to be adopted by an Employment Tribunal and also by appellate bodies when reviewing the decision of an employer who has dismissed an employee for misconduct has been considered by the Court of Appeal on a number of occasions, most recently in Brent London Borough Council v Fuller [2011] ICR 806.
Applying the principles set out in Fuller the appeals in these three cases all fail.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0043 – 11 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450277

EAT UNFAIR DISMISSAL – Reason for dismissal
UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant was Head Teacher of a voluntary aided school in Haringey. The Director of Children’s Services formed the view that she was not up to the job and put pressure on her and on the Governors to get her to leave. When this proved unsuccessful, the Governors were replaced by an Interim Executive Board, who on 6 February 2008 resolved to seek the Claimant’s removal. A demonstration took place at the School in the Claimant’s support on 25 February: protesters entered the School and there was considerable disruption. The Claimant was dismissed, ostensibly for not taking any measures to prevent the demonstrators entering the School or to mitigate the disruption and other risks when they did so.
The Tribunal found the dismissal to be unfair on the basis that the events of 25 February 2008 were a pretext and that the real principal reason for the Claimant’s dismissal was the prior decision of the IEB that she should go.
Held, that that was a decision which the Tribunal was entitled to reach on the facts of the case – ASLEF v Brady [2006] IRLR 576 followed.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0583 – 10 – 0612

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450279

EAT TRANSFER OF UNDERTAKINGS – Service provision change
Employment Judge entitled to find (a) that the activities carried out by outgoing contractor were not essentially or fundamentally the same as those carried out by the incoming contractor and (b) that there was fragmentation of the service after the putative transfer date such that no SPC transfer took place.
Peter Clark laid down the following principles to be derived from the case-law: ‘ . . (2) The expression ‘activities’ is not defined in the Regulations. Thus the first task for the Employment Tribunal is to identify the relevant activities carried out by the original contractor: . . That was the issue on appeal in OCS, where the Appellants challenge to the activities identified by the Employment Tribunal failed.
(3) The next (critical) question for present purposes will be whether the activities carried on by the subsequent contractor after the relevant date [ . . ] are fundamentally or essentially the same as those carried on by the original contractor. Minor differences may properly be disregarded. This is essentially a question of fact and degree for the Employment Tribunal (Metropolitan, para. 30).
(4) Cases may arise . . where the division of services after the relevant date, known as fragmentation, amongst a number of different contractors means that the case falls outside the service provision change regime, . .
(5) Even where the activities remain essentially the same before and after the putative transfer date as performed by the original and subsequent contractors, an SPC will only take place if the following conditions are satisfied:
(i) there is an organised grouping of employees in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;
(ii) the client intends that the transferee post-service provision change will not carry out the activities in connection with a single event of short-term duration;
(iii) the activities are not wholly or mainly the supply of goods rather than services for the client’s use. [ . . ]
(6) Finally, by reg 4(1) the Employment Tribunal must decide whether each Claimant was assigned to the organised grouping of employees.’

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0462 – 10 – 2112, [2012] IRLR 190

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450278

EAT RACE DISCRIMINATION – Continuing act. Striking out.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0015 – 11 – 1011

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450267

EAT PRACTICE AND PROCEDURE
Preliminary issues
Case management
Whether issue as to whether certain communications between the parties are covered by without prejudice legal privilege, to be heard at a PHR, ought to be heard in private under ET Rule 16(1)(b). Employment Judge ruling that it should be in public reversed.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0585 – 11 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450265

EAT UNFAIR DISMISSAL – Constructive dismissal
Constructive dismissal – fundamental breach of trust and confidence term. Culture of racial abuse – whether Claimant delayed too long in resigning – whether breach was to some extent reason for resignation. Appeal allowed. Case remitted to same Employment Tribunal.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0573 – 10 – 2010

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450263

EAT PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Amendment
SEX DISCRIMINATION
Pregnancy and discrimination
Direct
The Employment Tribunal failed to determine claims for indirect discrimination and harassment made to it, did not set out the law (other than to say it ‘paid regard to it’), and appeared to mis-state the principles deriving from Fletcher and Others v NHS Pensions Agency and Another [2005] ICR 1458. Nor did it give reasons for its central conclusions of fact. It appeared to accept that if a woman on maternity leave is subjected to disadvantage whilst on leave, the disadvantage being related to her maternity, that is necessarily sex discrimination: it failed to ask why the treatment, constituting that disadvantage, had been afforded to her. Such were the failures of the Employment Tribunal that the matter had to be remitted. As to that, secondary issues arose as to whether the Claimant should have cross-appealed the failure to make findings on some claims.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0483 – 10 – 1210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450261

EAT PRACTICE AND PROCEDURE – Review
Review application dismissed by Employment Judge alone under Employment Tribunal rule 35(3). Claimant’s representative misled Employment Tribunal and Claimant and prevented her from making, or having made on her behalf, a renewed adjournment application whilst she was un-contactable abroad (see Marsden). Appeal allowed; remitted to fresh Employment Tribunal for review hearing.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0304 – 11 – 2110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450264

EAT PRACTICE AND PROCEDURE – Chairman alone
Judge alone heard complaint under s189 TULRCA 1992. No jurisdiction to do so under s.4(3)(a) ETA 1996. Appeal allowed. Case remitted for re-hearing by full Employment Tribunal.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0218 – 11 – 1811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450268

rustamova_calderEAT2011

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal held (by a majority) that a school teacher was guilty of gross misconduct and the dismissal was fair. The EAT held there was an absence of reasoning in the majority reasons (two paragraphs) which made their Judgment not Meek compliant.

Judges:

Birtles J

Citations:

[2011] UKEAT 0284 – 11 – 0211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450270

EAT TRANSFER OF UNDERTAKINGS – Service provision change
Potential SPC under TUPE 2006, reg. 3(1)(b). Whether Employment Tribunal entitled to find that reg. 3(3)(b) exclusion (potential transferor’s activities consisted wholly or mainly of the supply of goods rather than services) applied. They were. Appeals dismissed.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0023 – 11 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450280

EAT UNFAIR DISMISSAL
SEX DISCRIMINATION – Comparison
Unfair dismissal – misconduct. Claimant assaulted girlfriend (also RBS employee) in circumstances where he alleged he had been provoked by her having slapped him. Sex discrimination. Circumstances in which Employment Tribunal were held to have erred in requiring misconduct, for the purposes of s.98(2) of the Employment Rights Act 1996, to be ‘reprehensible’, to have been perverse in its conclusion that the Claimant was not dismissed for a reason relating to conduct, to have failed to address the question of whether, esto there was procedural failing, under s.98A(2) the dismissal was nonetheless fair, to have erred in finding that the appeal process did not cure any earlier procedural defect and to have substituted its own view as to the adequacy of the procedure. Further, the Employment Tribunal had no basis for finding that the Claimant’s girlfriend was an appropriate comparator nor any basis in the evidence for concluding that the Respondent acted on the basis of an ‘automatic sexist assumption’. Appeal upheld and claim dismissed.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0049 – 10 – 1111

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(2)

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450269

EAT UNFAIR DISMISSAL – Reasonableness of dimissal
These three cases were heard together. In two of the cases (Arriva Trains Wales v Ms F Conant and Yellow Pages Sales Limited v Mr R Walsh) the issue is whether the Employment Tribunal erred in law by substituting its own views on the fairness of the dismissal for those of the employer. The majority decision of the Employment Tribunal in those cases was that the Claimant was unfairly dismissed. In the third case (Mrs S Harber v Kelly Residential Limited t/a Portland Nursing Home) the Claimant appealed against the decision of an Employment Tribunal that she was fairly dismissed.
The approach to be adopted by an Employment Tribunal and also by appellate bodies when reviewing the decision of an employer who has dismissed an employee for misconduct has been considered by the Court of Appeal on a number of occasions, most recently in Brent London Borough Council v Fuller [2011] ICR 806.
Applying the principles set out in Fuller the appeals in these three cases all fail.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0105 – 11 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450281

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Employment Judge had failed to make any findings of fact relevant to considering whether, after expiry of the time limited for presenting a claim, a further period of delay had been reasonable. Also she had misdirected herself as to the relevance of the fault of a skilled legal adviser and failed to consider whether that affected the reasonableness of not presenting a complaint during the further period.
Case remitted to a differently constituted Tribunal for a complete re-hearing.

Judges:

Hand QC J

Citations:

[2011] UKEAT 0236 – 11 – 2410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450259

EAT UNFAIR DISMISSAL – Constructive dismissal
DISABILITY DISCRIMINATION – Disability
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Tribunal assumed in its decision that if it decided there had been no discrimination on disability grounds that it followed that there had been no breach of the implied term of trust and confidence. It failed to apply tests for determining each which were distinct, and misunderstood the issues which it had been argued were for determination.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0216 – 11 – 2110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 October 2022; Ref: scu.450260

The claimant had been an ordained minister in the church. She sought to claim unfair dismissal. The Conference replied that she was not an employee entitled to make such a claim.
Held: The claimant was an employee.

Judges:

Maurice Kay VP, Longmore LJJ, Sir David Keene

Citations:

[2011] EWCA Civ 1581, [2012] 2 WLR 1119, [2012] 2 All ER 934, [2012] IRLR 22, [2012] QB 735, [2012] ICR 432

Links:

Bailii

Statutes:

Employment Rights Act 1996 230

Jurisdiction:

England and Wales

Citing:

Appeal from – Moore v The President of The Methodist Conference EAT 15-Mar-2011
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Claimant, a Methodist minister, brought proceedings for unfair dismissal – Tribunal held that it was bound by President of Methodist Church Conference . .

Cited by:

Cited – Singh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
Appeal from – Methodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.450111

The employee was dismissed for having worked on his own car in a dangerous manner. He admitted this, but said he had done so before to the employer’s knowledge without complaint. The employer denied this. The tribunal had dismissed the complaint.
Held: The tribunal had been faced with resolving a conflict of evidence. It had failed to make clear its finding on the issue either expressly or by necessary implication. This amounted to an error of law, and the matter was remitted to a differently constituted tribunal for re-hearing.

Judges:

Waite J

Citations:

[1984] ICR 583

Jurisdiction:

England and Wales

Citing:

Applied – Alexander Machinery (Dudley) Ltd v Crabtree CA 1974
Donaldson LJ discussed the level of detail to be given by a tribunal when giving its reasons: ‘It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials . .

Cited by:

Cited – Reuters Ltd v H Williams EAT 15-Nov-2001
The respondent company appealed a finding of sex discrimination by a staff member engaging in sexual harassment. A young female worker complained that her manager had persisted in making advances to her. It was said that the Tribunal had failed to . .
Cited – Bennett v Sergio Gambi and others EAT 14-May-1996
Appeal against rejection of sex harassment and discrimination claim. She said that the tribunal had given no clear inication that her allegations were either accepted or rejected.
Held: The decision adequately clarified that the tribunal had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 October 2022; Ref: scu.182852

EAT Transfer of Undertakings : Transfer
PRACTICE AND PROCEDURE – Striking-out/dismissal
TUPE. Strike out. Claimants claimed – relying on Spijkers v Gebroeders Benedik Abbattoir [1986] 2 CMLR 296 – that they were dismissed because of a relevant transfer. Claims presented against (alleged) transferee company, relying on Litster v Forth Dry Dock and Engineering Co Ltd [1989] SC (HL) 96 and Stirling District Council v Allen and Ors [1995] ICR 1082. Employment Tribunal struck out claims as having no reasonable prospects of success because Claimants were dismissed by the (alleged) transferor not by the (alleged) transferee; there was no need to hear evidence. On appeal, judgment of Employment Tribunal set aside; the Employment Judge had plainly erred in law – since the Claimants were alleging there had been a relevant transfer and that they were dismissed by reason of that transfer, any liability of the transferor had passed to the transferee company. Case remitted to a fresh Tribunal for a pre hearing review to take place at which evidence would be heard and the issue of whether or not there was a relevant transfer (for TUPE purposes) would be determined.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0021 – 11 – 1810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449993

EAT Jurisdictional Points : 2002 Act and Pre-Action Requirements
On a step 3 appeal the Claimant raised for the first time a qualifying disclosure under PIDA. The Employment Judge incorrectly found that the employer would reasonably know this was a step 1 grievance and refused the Respondent’s application to dismiss the claim. Solicitors’ letters invoking the earlier grievances which did not cite any PIDA complaint could not make the step 1 grievance for per-employment detriments, and constructive unfair dismissal on PIDA grounds. The ordinary constructive unfair dismissal case would now be heard.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0238 – 11 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449997

EAT TRANSFER OF UNDERTAKINGS – Transfer
For there to be a service provision change within the meaning of Regulation 3(1)(b)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the activities carried out by different contractors before and after the transfer must be carried out for the same client. The Employment Tribunal erred in holding that there was a service provision change when there was not only a change of contractor but also a change of client. The decision could not be upheld on the basis of a transfer of an undertaking under Regulation 3(1)(a). Amongst other matters, the facts advanced of such an argument would not support such a conclusion. Although not necessary for the disposal of the appeal, the EAT found that the Employment Tribunal had failed to consider the conditions set out in Regulation 3(3)(a) which must be satisfied for a service provision change under Regulation 3(1)(b) to be established. Appeal allowed.

Judges:

Slade J DBE

Citations:

[2011] UKEAT 0617 – 10 – 1312

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006 3(1)(b)(ii)

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449998

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – Practice and Procedure – Unfair dismissal. Redundancy. Minor omission (to do what, in circumstances, employers were not obliged to do) at initial stage of what was, otherwise, found by Tribunal to have been a fair redundancy procedure. Tribunal deciding case on the basis of resolution of an issue not pled. Perversity. Polkey. Appeal upheld and finding of fair dismissal substituted.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0019 – 10 – 1310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449992

EAT NATIONAL MINIMUM WAGE ACT 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the Respondents’ households. The EAT held that the work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied. Accordingly they are not entitled to be paid the National Minimum Wage.
Regulation 2(2)(a)(ii) applies if the worker is not a member of the employer’s family, but is ‘treated as such’. The exemption in reg. 2(2) is to be construed narrowly. The worker’s place within the family must be considered holistically.
Particular regard must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities. That does not exclude regard to other matters such as the general dignity with which the domestic worker is treated, the degree of privacy and autonomy they are afforded and the extent to which, if at all, they are exploited.
The ‘sharing of tasks’ does not include the work which the worker was employed to do. The tasks that are for consideration are the tasks performed by the family as a family unit. The issue is whether the worker is integrated into the family. There is no justification for importing the concept of equivalence.
Other issues
The decision in Jose that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages was not Meek-compliant. Applying the principles in Sinclair Roche and Temperley v Heard [2004] IRLR 763 the claim was remitted to a differently constituted Tribunal.
In Jose the tribunal had jurisdiction to hear a complaint of unlawful deduction of wages because the non-payment of wages was part of a ‘series’ of deductions for the purposes of s.23(3) of the Employment Rights Act 1996. Group 4 Nightspeed Ltd v Gilbert (1997) IRLR 398 applied.
In Jose and Nambalat unlawful deduction of wages in respect of holiday pay considered and judgment given on these issues.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0071 – 11 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.450002

EAT PRACTICE AND PROCEDURE – Parties
The Claimant brought proceedings against the First Respondents under the Sex Discrimination Act 1975, partly arising out of alleged harassment by the Appellant, a former colleague. She advanced no claim against the Appellant and made it clear that she had no wish to do so; but the First Respondents applied, some time after the start of the proceedings, to have him joined. The Employment Judge acceded to that application, relying on rules 10 (2) (k) and/or 10 (2) (r) of the Employment Tribunal Rules of Procedure.
HELD, allowing the Appellant’s appeal, that in the absence of any claim by the Claimant the only basis on which the Appellant could properly have been joined would have been that the First Respondents were making a contribution claim against him pursuant to the Civil Liability (Contribution) Act 1978 (though it was debatable whether such a claim in fact lay or, if so, whether the Tribunal had jurisdiction to entertain it); but that since no such claim had been advanced in the Tribunal, no ground for his joinder had been shown.
Discussion of scope of rules 10 (2) (k) and 10 (2) (r).

Judges:

Underhill P J

Citations:

[2011] UKEAT 0405 – 11 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449995

EAT NATIONAL MINIMUM WAGE ACT 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the Respondents’ households. The EAT held that the work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied. Accordingly they are not entitled to be paid the National Minimum Wage.
Regulation 2(2)(a)(ii) applies if the worker is not a member of the employer’s family, but is ‘treated as such’. The exemption in reg. 2(2) is to be construed narrowly. The worker’s place within the family must be considered holistically.
Particular regard must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities. That does not exclude regard to other matters such as the general dignity with which the domestic worker is treated, the degree of privacy and autonomy they are afforded and the extent to which, if at all, they are exploited.
The ‘sharing of tasks’ does not include the work which the worker was employed to do. The tasks that are for consideration are the tasks performed by the family as a family unit. The issue is whether the worker is integrated into the family. There is no justification for importing the concept of equivalence.
Other issues
The decision in Jose that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages was not Meek-compliant. Applying the principles in Sinclair Roche and Temperley v Heard [2004] IRLR 763 the claim was remitted to a differently constituted Tribunal.
In Jose the tribunal had jurisdiction to hear a complaint of unlawful deduction of wages because the non-payment of wages was part of a ‘series’ of deductions for the purposes of s.23(3) of the Employment Rights Act 1996. Group 4 Nightspeed Ltd v Gilbert (1997) IRLR 398 applied.
In Jose and Nambalat unlawful deduction of wages in respect of holiday pay considered and judgment given on these issues.

Judges:

Supperston J

Citations:

[2011] UKEAT 0553 – 10 – 0812

Links:

Bailii

Statutes:

National Minimum Wage Regulations 1999 2(2)

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.450000

EAT TRANSFER OF UNDERTAKINGS – Consultation and other information
Where the EAT has made an order under regulation 15 (8) of TUPE which was not made by the ET, or is in different terms, the time limit prescribed by regulation 15 (12) for an individual employee bringing proceedings under regulation 15 (10) runs from the date of the order of the EAT and not the order of the ET – Even if that were not so, it was not reasonably practicable for the Appellants, who were (reasonably) ignorant of the procedure for enforcing an award under regulation 15 (8), to present their claims in time and they had acted within a reasonable time once they had become aware of the position

Judges:

Underhill P J

Citations:

[2011] UKEAT 0531 – 10 – 2109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449990

EAT NATIONAL MINIMUM WAGE ACT 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the Respondents’ households. The EAT held that the work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied. Accordingly they are not entitled to be paid the National Minimum Wage.
Regulation 2(2)(a)(ii) applies if the worker is not a member of the employer’s family, but is ‘treated as such’. The exemption in reg. 2(2) is to be construed narrowly. The worker’s place within the family must be considered holistically.
Particular regard must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities. That does not exclude regard to other matters such as the general dignity with which the domestic worker is treated, the degree of privacy and autonomy they are afforded and the extent to which, if at all, they are exploited.
The ‘sharing of tasks’ does not include the work which the worker was employed to do. The tasks that are for consideration are the tasks performed by the family as a family unit. The issue is whether the worker is integrated into the family. There is no justification for importing the concept of equivalence.
Other issues
The decision in Jose that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages was not Meek-compliant. Applying the principles in Sinclair Roche and Temperley v Heard [2004] IRLR 763 the claim was remitted to a differently constituted Tribunal.
In Jose the tribunal had jurisdiction to hear a complaint of unlawful deduction of wages because the non-payment of wages was part of a ‘series’ of deductions for the purposes of s.23(3) of the Employment Rights Act 1996. Group 4 Nightspeed Ltd v Gilbert (1997) IRLR 398 applied.
In Jose and Nambalat unlawful deduction of wages in respect of holiday pay considered and judgment given on these issues.

Citations:

[2011] UKEAT 0597 – 10 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449999

EAT NATIONAL MINIMUM WAGE ACT 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the Respondents’ households. The EAT held that the work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied. Accordingly they are not entitled to be paid the National Minimum Wage.
Regulation 2(2)(a)(ii) applies if the worker is not a member of the employer’s family, but is ‘treated as such’. The exemption in reg. 2(2) is to be construed narrowly. The worker’s place within the family must be considered holistically.
Particular regard must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities. That does not exclude regard to other matters such as the general dignity with which the domestic worker is treated, the degree of privacy and autonomy they are afforded and the extent to which, if at all, they are exploited.
The ‘sharing of tasks’ does not include the work which the worker was employed to do. The tasks that are for consideration are the tasks performed by the family as a family unit. The issue is whether the worker is integrated into the family. There is no justification for importing the concept of equivalence.
Other issues
The decision in Jose that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages was not Meek-compliant. Applying the principles in Sinclair Roche and Temperley v Heard [2004] IRLR 763 the claim was remitted to a differently constituted Tribunal.
In Jose the tribunal had jurisdiction to hear a complaint of unlawful deduction of wages because the non-payment of wages was part of a ‘series’ of deductions for the purposes of s.23(3) of the Employment Rights Act 1996. Group 4 Nightspeed Ltd v Gilbert (1997) IRLR 398 applied.
In Jose and Nambalat unlawful deduction of wages in respect of holiday pay considered and judgment given on these issues.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0070 – 11 – 0812

Links:

Bailii

Statutes:

National Minimum Wage Regulations 1999 2(2), Employment Rights Act 1996 23(3)

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449996

EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke
A Notice of Appeal lodged on day 40 without the two ET3s and missing a page of the Reasons and not properly lodged until a week late was out of time and discretion would not be exercised to extend time.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0758 – 11 – 1710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.449994

Citations:

[2002] EWCA Civ 1269, 70 BMLR 188

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.217432

Citations:

[2002] EWCA Civ 1284

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.217524

Citations:

[2002] EWCA Civ 1224

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.217428

Citations:

[2002] EWCA Civ 1156

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.217456

Citations:

[1995] UKEAT 705 – 95 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.209598

The applicant had been employed by the respondent under a modern apprenticeship contract. The employer dismissed him during the term, after a downturn in work.
Held: Though the contract was subject to the employer’s standard terms, it remained the fact that he was not an employee, and could not be dismissed. The employer claimed that a contract requiring him to employ somebody for five years was a commercial nonsense. Following Wallace, a contract of apprenticeship was determinable only on completion of the training.
EAT Unlawful Deduction from Wages –

Judges:

Mr Recorder Underhill QC

Citations:

Times 02-Jan-2003, EAT/841/01, [2002] UKEAT 0841 – 01 – 2611

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – Wallace v CA Roofing Services Ltd 1996
An employer can less easily terminate an apprentice than other employees. An oral apprenticeship contract is enfoirceable, but only once it is acted upon. . .
See Also – Whitely v Marton Electrical Ltd EAT 22-Nov-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 October 2022; Ref: scu.179977

Judges:

Mr Justice Lawrence Collins

Citations:

[2001] EWHC Ch 463

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 October 2022; Ref: scu.169837