Category: Employment

Patel v South Tyneside Council and Others: EAT 28 Nov 2011

EAT Whether Notice of Appeal out of time
Extension of time
Notice of Appeal sent by Appellant’s representatives to an e-mail address of the EAT and that e-mail address had ‘successful delivery’ of the e-mail from the Appellant’s representatives. It matters not whether the e-mail from the Appellant’s representatives appeared in any ‘In-box’ in the EAT’s system; what matters is whether the e-mail ‘hit’ the EAT’s server. Yellow Pages Sales Ltd v Davie UKEATS/0017/11/BI applied. Accordingly Notice of Appeal in respect of Decision 1 of the Employment Tribunal in time.
Decision 1 of ET contained a clerical error as to date on which the Reasons were sent to the parties. ET issued Decision 2 which contained the judgment and reasons of the Tribunal in their entirety; signed and dated afresh by the Employment Judge and the clerk. Decision 2 is not a correction to Decision 1 in the form required by rule 37(1) of the Employment Appeal Tribunal Rules 1993. It is an entirely fresh judgment. Time for appeal runs from the date on which Decision 2 sent to the parties. Aziz-Mir v Sainsbury’s Supermarket plc UKEAT PA/0537/06 applied. A Certificate of Correction sent subsequently cannot have the effect of correcting Decision 1.
If Notice of Appeal out of time, time should be extended in the exceptional circumstances of the case. Muschett v Hounslow LBC [2009] ICR 424 applied. Appellant not at fault. Whether or not the receipt was from the EAT, the Appellant’s legal advisers were entitled to assume that the Notice of Appeal had been properly served on the EAT.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0917 – 11 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449418

Dunn v The Institute of Cemetery and Crematorium Management: EAT 2 Dec 2011

EAT SEX DISCRIMINATION – Marital status
The Employment Tribunal, which upheld the Claimant’s unfair dismissal claim, was wrong to hold that the protection under section 3 of the Sex Discrimination Act as amended of married persons does not include protection of a person who is discriminated against on the ground that she is married to a particular person. Although the Respondent did not discriminate against married people generally, the Claimant was entitled to claim that her unfavourable treatment was marriage-specific and specific to that marriage. The 1976 Equal Treatment Directive was not of assistance in interpretation. The Claimant’s ECHR rights under Arts 8, 12 and 14 were engaged. Two findings of the Employment Tribunal on marital discrimination remitted to it. The cross appeal on victimisation was dismissed.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0531 – 10 – 0212

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.449420

Bhardwaj v FDA and Others: EAT 4 Nov 2011

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity
It is reasonably arguable that contact between the lay members of the Employment Tribunal and three of the five individual Respondents, themselves lay members, created an appearance of bias. Subject to that, grounds of appeal based on perversity, reasons, time-bar, falsity, good faith and agency were all dismissed.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0158 – 11 – 0411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449413

Hughes v Transport for London: EAT 19 Sep 2011

EAT Practice and Procedure : Striking-Out or Dismissal
It is an abuse of process for a Claimant, whose claim was compromised by monetary agreement or award to seek to re-open it 17 years after his unfair dismissal when, in light of a changed pension regime, it turned out to be not so good a deal. The new claim was correctly struck out.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0291 – 11 – 1909

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449402

Hardie Grant London Ltd v Aspden: EAT 3 Nov 2011

EAT Unfair Dismissal : Constructive Dismissal
Compensation
Employment Tribunal entitled to conclude, on the facts, that Respondent was in breach of implied term of trust and confidence. Claimant resigned in response. She was constructively dismissed. S.124(1) Employment Rights Act 1996. The Employment Tribunal was wrong to make a compensatory award to Claimant in excess of statutory cap. Grossing up takes place before, not after, application of cap so as to allow for taxation.

Judges:

Peter Clarke J

Citations:

[2011] UKEAT 0242 – 11 – 0311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449417

Blitz v Vectone Group Holdings Ltd: EAT 29 Nov 2011

EAT VICTIMISATION DISCRIMINATION
Protected disclosure
Dismissal
The decision of the Employment Tribunal that the Claimant was not dismissed by reason of having made a protected disclosure was justified on the facts found. The Claimant had, however, suffered minor detriment by reason of such disclosures.

Judges:

Serote QC J

Citations:

[2011] UKEAT 0253 – 10 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449414

Inchcape Retail Ltd v Whiting: EAT 26 Oct 2011

EAT Unfair Dismissal : Reasonableness of Dismissal
Though open to criticism in many matters of detail, an Employment Tribunal’s central conclusion that a dismissal was unfair because the employer had not carried out an investigation of the facts which was reasonable in the circumstances was one which was clear, unaffected by obvious error, not perverse, and one which it was entitled to reach.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0089 – 11 – 2610

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449408

Asif v Elmbridge Borough Council: EAT 19 Oct 2011

EAT Redundancy : Fairness
Equal Pay Act – Material factor defence and justification
The Claimant’s case of unfair selection based primarily on the failure of the Respondent to retain her when another employee in the group was leaving is reasonably arguable.
Her case that the Respondent did not have a genuine material factor defence to her equal pay claim was dismissed. The Employment Tribunal correctly compared appraisals of the work she had been doing with that of a man, albeit some reliance was placed on interviews for the new work.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0395 – 11 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449404

Joao v Jurys Hotel Management UK Ltd: EAT 11 Oct 2011

EAT Victimisation Discrimination : Health and Safety
The Respondent rostered the Claimant to work nine consecutive nights and dismissed him after he complained. Under WTR Reg 11 this pattern is apparently not unlawful. The Employment Tribunal failed to consider whether the Claimant reasonably believed it was, concluding that, since it was not unlawful, no-one could think otherwise. The Respondent changed its reason for dismissal. Appeal allowed and remitted to fresh Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 11 – 0210 – 1110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449409

Dunster v First Transpennine Express Ltd: EAT 19 Aug 2011

EAT Victimisation Discrimination : Whistleblowing – The Employment Tribunal did not err when it found the Respondent did not unfairly dismiss the Claimant, either in the ordinary sense or automatically for breach of the Employment Act 2002 procedures. The dismissal and any detriments were not caused by the Claimant’s protected disclosures.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0570 – 10 – 1908

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449401

Finlay v Cyron and Others: EAT 14 Oct 2011

EAT Practice and Procedure : Service : Parties
Respondents to a discrimination claim sought joinder, in reliance on rule 10 (2) (h) and/or 10 (2) (r) of the Employment Tribunal Rules of Procedure, of the Appellant, an ex-employee based in the U.S., who they said was jointly liable for any discrimination found against them – Application to strike out claim as against him on the basis (a) that service had not been effected in accordance with rule 61 (4) (h) (ii) and/or (b) that the application was made for an ulterior motive and/or (c) that the claim of joint liability had no reasonable prospect of success – Application dismissed.
By the time of the appeal the Respondents and the Claimant had settled, and neither had any wish to pursue the Appellant further; but he sought to pursue the appeal in order to be able to make an application for costs on the basis that he should not have been joined in the first place. Appeal allowed to proceed, but only as regards issues that could have justified an application for costs.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0121 – 11 – 1410

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.449407

Lewis v New College Oxford: EAT 14 Oct 2011

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity
The Employment Tribunal did not allow the Claimant’s representative to develop her case and at least one member had a fundamental misunderstanding, considering the case was unfair dismissal and it was hardly important to consider the Claimant’s case that the dismissal was an act of race discrimination and victimisation. Remitted to a fresh Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0533 – 10 – 1410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449410

South East Leisure Group Ltd v Vachoumis: EAT 4 Oct 2011

EAT Practice and Procedure : Case Management
Right to be heard
The Employment Tribunal by oversight did not respond to the Appellant’s application for a review of its debarment for want of a timely ET3. The Employment Judge did not follow the EAT’s direction to make a decision on the application prior to the full hearing. The Appellant did not have a hearing. It was conceded the Employment Judge would be bound to order a review. As he had not done so, the appeal would be allowed and the Employment Tribunal directed to accept the ET3 and hold a full hearing.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0270 – 10 – 0410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449411

Dundee City Council v Sharp: EAT 11 Oct 2011

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other reason – Reasonableness of dismissal
Unfair dismissal. Long term sickness absence. Tribunal erroneously requiring that employers follow a particular procedure re further medical enquiries before determining on dismissal. Tribunal wrongly taking account of length of service when considering reasonableness of investigation. Remit to a fresh Tribunal to consider, on facts already found, whether or not the Respondent could reasonably have been expected to wait longer.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0009 – 11 – 1110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.449406

Chief Constable of West Midlands Police v Gardner: EAT 19 Oct 2011

EAT Disability Discrimination : Reasonable Adjustments
An Employment Tribunal did not identify what it was in respect of Claimant’s disability that resulted in a requirement for him to attend at a place of work on a flexible timetable causing him substantial disadvantage. This was a necessary finding if the ET were to determine what adjustment it was reasonable for the Respondent to have to make. Case remitted.
DISABILITY DISCRIMINATION – Compensation
The question arose whether an ET should adopt Ogden tables in place of the tables annexed to the Employment Tribunals guidelines to determine pension loss. Held it was not an error of law to do so if cogent and credible reasons were articulated for doing so, as they were here, though it was not to be encouraged.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0174 – 11 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.449405

Staff Side of The Police Negotiating Board etc, Regina (on The Application of) v Secretary of State for Work and Pensions etc: Admn 2 Dec 2011

The claimants sought judicial review of the decision to change the basis of inflation adjustment of pensions paid to former staff. The schemes had formerly used the Retail Price Index, but the proposal was to move to the Consumer Price Index.
Held: The claims failed.

Judges:

Elias LJ, McCombe, Sales JJ

Citations:

[2011] EWHC 3175 (Admin)

Links:

Bailii

Employment

Updated: 29 September 2022; Ref: scu.449387

McCann v Clydebank College: EAT 17 Jun 2010

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Employee dismissed for doing remunerative work in his own business, without his employer’s consent, in a period when he was off sick and in respect of which he was receiving sick pay – Tribunal held to have been entitled to conclude that dismissal for that reason was, in the particular circumstances of the case, fair.

Judges:

Underhill J P

Citations:

[2010] UKEAT 0061 – 09 – 1706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.421385

Chong v Marek and Co: EAT 25 Feb 2000

Citations:

[2000] UKEAT 199 – 2000 – 2502

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Chong v Marek and Co EAT 12-Sep-2001
. .
See Also – Chong v Marek and Co EAT 23-Jan-2002
EAT Unfair Dismissal – Compensation. . .
See Also – Chong v Marek and Co EAT 29-May-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Calculation of compensation for unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 September 2022; Ref: scu.264771

Moyhing v Homerton University Hospitals NHS Trust and others: EAT 3 May 2005

EAT AIDING AND ABETTING; DISCRIMINATION BY OTHER BODIES
The parties took part in an Employment Tribunal hearing of a preliminary issue as to whether, in a case where the Appellant alleged a discriminatory practice in the course of his nurse’s training, the NHS Trust Respondents, against whom he brought a claim under s14 of the Sex Discrimination Act, were the agents of the University Respondents. The Employment Tribunal found that the Trusts were such agents, and that the Appellant’s claim could thus not be brought against them in the Employment Tribunal under s14, but only in the County Court as aiders and abettors of the University under s22. Found (upon Appellant withdrawing at the Employment Appeal Tribunal a concession made below as to the construction of s14(2))
(i) s14(2) does not have the effect of preventing a primary claim under s14(1) simply because the alleged discriminator was also acting as the agent of an educational establishment suable under s22
(ii) in any event, the onus being upon the NHS Respondents to oust the jurisdiction, if such agency were relevant, the NHS Respondents had failed to establish it.

Citations:

[2005] UKEAT 0851 – 04 – 0305, UKEAT/0851/04

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Cited by:

See Also – Moyhing and Another v Barts and London NHS Trust EAT 28-Apr-2006
EAT The appellant was a student nurse. He was required to be chaperoned when carrying out intimate procedures on female patients whereas a female student nurse was not required to have a chaperone when carrying . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.228642

Chong v Marek and Co: EAT 12 Sep 2001

Citations:

[2001] UKEAT 361 – 01 – 1209

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Chong v Marek and Co EAT 25-Feb-2000
. .

Cited by:

See Also – Chong v Marek and Co EAT 23-Jan-2002
EAT Unfair Dismissal – Compensation. . .
See Also – Chong v Marek and Co EAT 29-May-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Calculation of compensation for unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 September 2022; Ref: scu.204157

Thomas v Merton Racial Equality Council: EAT 24 Mar 1999

Citations:

[1999] UKEAT 30 – 99 – 2403

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Thomas v Merton Racial Equality Council EAT 2-Mar-2000
. .
See Also – London Borough of Merton v Thomas EAT 27-Mar-2001
. .
See Also – London Borough of Merton v Thomas EAT 3-May-2002
EAT Jurisdiction
EAT Contract of Employment – Written particulars. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 September 2022; Ref: scu.205040

Chong v Marek and Co: EAT 23 Jan 2002

EAT Unfair Dismissal – Compensation.

Judges:

The Honourable Mr Justice Bell

Citations:

[2002] UKEAT 361 – 01 – 2301, EAT/361/01

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Chong v Marek and Co EAT 25-Feb-2000
. .
See Also – Chong v Marek and Co EAT 12-Sep-2001
. .

Cited by:

See Also – Chong v Marek and Co EAT 29-May-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Calculation of compensation for unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 September 2022; Ref: scu.202413

Colesby v Mountain Spring Water Co Ltd: EAT 11 Sep 2003

EAT Practice and Procedure – Application/Claim.

Judges:

Her Honour Judge A Wakefield

Citations:

[2003] EAT 0451 – 03 – 1109, [2003] UKEAT 0451 – 03 – 1109, EAT/451/03

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

See Also – Mountain Spring Water Co Ltd v Colesby EAT 18-Apr-2005
EAT Unfair Dismissal – Reasonableness of dismissal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 September 2022; Ref: scu.187252

Chong v Marek and Co: EAT 29 May 2003

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Calculation of compensation for unfair dismissal.

Judges:

His Hon Judge McMullen QC

Citations:

[2003] UKEAT 0031 – 03 – 2905, EAT/31/03

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Chong v Marek and Co EAT 25-Feb-2000
. .
See Also – Chong v Marek and Co EAT 12-Sep-2001
. .
See Also – Chong v Marek and Co EAT 23-Jan-2002
EAT Unfair Dismissal – Compensation. . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 29 September 2022; Ref: scu.191560

Street v Derbyshire Unemployed Workers Centre: EAT 22 Sep 2003

The employee claimed that the behaviour which gave rise to her dismissal was a protected disclosure, and that her motive was irrelevant.
Held: The fact that what was disclosed was true was not conclusive to protect the disclosure. The court could look to motive, and a bad motive might defeat the protection even if the disclosure was true, and the tribunal was entitled to look to her behaviour both before and after the disclosure. A disclosure made for reasons of personal animosity was not protected. However the claimant was entitled to amend her pleadings to add an ordinary unfair dismissal claim even though this was out of time.

Judges:

His Hon Judge McMullen QC

Citations:

[2003] EAT 0508 – 02 – 2209, Times 01-Dec-2003, [2003] UKEAT 0508 – 02 – 2209, Gazette 15-Jan-2004, EAT/508/02

Links:

Bailii, Bailii, EAT

Statutes:

Employment Rights Act 1996 103A

Jurisdiction:

England and Wales

Citing:

Cited – Selkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .
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 by:

Appeal from – Street v Derbyshire Unemployed Workers’ Centre CA 21-Jul-2004
The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 September 2022; Ref: scu.191838

Renwick v Scottish Widows Services Ltd: EAT 8 Sep 2003

EAT Practice and Procedure – Estoppel or Abuse of Process.
Appeal against order striking out the claim.
Public Interest Disclosure

Judges:

His Hon Judge D Serota QC

Citations:

[2003] EAT 1225 – 02 – 0809, [2003] UKEAT 1225 – 02 – 0809, UKEAT/1225/02

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 29 September 2022; Ref: scu.189612

Birmingham City Council v Abdulla and Others: CA 29 Nov 2011

The Council appealed against an order dismissing its application for the claimants’ claims under equal pay legislation to be struck out for want of jurisdiction. The claims had been brought in the High Court rather than te hEmployment Tribunal, thus extending the effective limitation date from 6 months to six years.
Held: The Council’s appeal failed. To strike out an in-time claim for breach of an equality clause is an extreme exercise of judicial discretion: ‘if the court struck out these equal pay claims under s.2(3) on the ground that they could be ‘more conveniently’ disposed of in the ET, the claims would have to be rejected by the ET for want of jurisdiction and the Claimants would be left without remedy for claims that might otherwise be well founded.’
The reasons why the claimants hadfailed to lodge their claims in time at the Tribunal were not relevant when considering convenience. The ‘basic assumption’ behind the first part of section 2(3) was that both the court and the tribunal would have jurisdiction to decide the claim on its merits; that the purpose behind the provision was, in that context, to identify the forum more fitted for its resolution; that, in that Birmingham was not alleging that the claims represented an abuse of the process of the court, the reasons why the claims had not been made to the tribunal were irrelevant; and that the deputy judge’s decision had been correct.

Judges:

Mummery, Davis LJJ, Janet Smith Dame

Citations:

[2011] EWCA Civ 1412, [2012] IRLR 116, [2012] ICR 20, [2012] Eq LR 81, [2012] 2 All ER 591, [2012] CP Rep 9

Links:

Bailii

Statutes:

Equal Pay Act 1970 2(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – Restick v Crickmore CA 3-Dec-1993
The High Court can transfer proceedings wrongly started in High Court to the County Court as an alternative to its jurisdiction to strike out the claim. Stuart-Smith LJ said: ‘. . provided proceedings are started within the time permitted by the . .

Cited by:

Appeal from – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 28 September 2022; Ref: scu.449031

HM Revenue and Customs v PA Holdings Ltd: CA 30 Nov 2011

The company made available to certain employees discretionary annual bonuses which were paid instead by way of shares and received dividends. It now appealed against findings that the payments were taxable subject to Schedule F rates and were liable also to National Insurance.
Held: Applying White, The court should not be seduced by the form in which the payments reached employees, but rather should focus upon the character of the receipt in the hands of the recpient.

Judges:

Maurice Kay, Arden, Moses LJJ

Citations:

[2011] EWCA Civ 1414, [2011] BTC 705, [2011] STI 3268, [2012] STC 582

Links:

Bailii

Statutes:

Income and Corporation Taxes Act 1988

Jurisdiction:

England and Wales

Citing:

Cited – White v Franklin CA 1965
The share owners placed half of the issued shares in the company in trust for the taxpayer, in order to persuade him to continue his involvement in the family company as an active director. The trust provided that the income from the shares should . .
At SCIT – PA Holdings Ltd v Revenue and Customs SCIT 29-Aug-2008
SCIT The Revenue issued separate decisions that certain sums paid to employees of Holdings in the three years to April 2003 were emoluments liable to income tax under PAYE and earnings on which Holdings is liable . .
At FTTTx – PA Holdings Ltd and Another v Revenue and Customs FTTTx 7-May-2009
FTTTx Income tax – other – whether sums paid to individuals by a company as a dividend financed from a capital contribution to the company from employee benefits funds derived from the individuals’ employing . .
At UTTC – P A Holdings UTTC 7-Jul-2010
UTTC Income Tax – Tax avoidance scheme – Dividend from new company instead of bonus: whether Ramsay jurispudence applies – Schedule E and meaning of emoluments from employment – Schedule F and meaning of dividend . .

Cited by:

Cited – Morgan v Department for Employment and Learning NIIT 24-Jan-2014
. .
Lists of cited by and citing cases may be incomplete.

Employment, Taxes – Other, Income Tax

Updated: 28 September 2022; Ref: scu.449042

Van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen: ECJ 17 Nov 2011

ECJ (Social Policy) Directive 80/987/EEC – Protection of employees in the event of the insolvency of their employer – Insolvency benefit – Payment subject to registration as a job-seeker

Judges:

Bonichot P

Citations:

C-435/10, [2011] EUECJ C-435/10

Links:

Bailii

Statutes:

Directive 80/987/EEC

European, Employment

Updated: 28 September 2022; Ref: scu.448733

Institute of Professional Civil Servants (IPCS) v Secretary of State for Defence: ChD 1987

The legislative purpose of the provision of information as to a proposed transfer of an undertaking is to facilitate proper and effective consultation, though the transferor need only inform of those measures which he actually envisages will be implemented. Millett J said: ‘The consultations referred to in the opening words of subsection (6) are voluntary consultations, which the unions may seek on any topic once they have the requisite information,, but which the transferring employer is not compelled to grant if he chooses not to do so.’
The term ‘measures’ is ‘a word of the widest import’ which includes any action, step or arrangement, while ‘envisages’ simply means ‘visualises’ or ‘foresees’.
‘The second question which was canvassed before me was the extent of the obligation to consult which is placed upon the Secretary of State. That obligation is imposed by [the 1986 Act], and it arises only where the Secretary of State envisages that he will be taking measures in connection with the transfer. Thus the Act evidently requires the Secretary of State to inform the unions of four different matters, but to consult them on only one of them. I was for some time oppressed by the apparent illogicality of this. Why should the Secretary of State be required to consult the unions where he envisages that he will take measures, but not when he envisages that he will take none? The unions may well wish to be consulted as much in the second case as in the first. And why is the Secretary of State required to inform the unions in time to enable effective consultations to take place of matters on which he is not required to consult them? Logically, the consultations referred to . . must include, but cannot be confined to, those referred to [later]. On the other hand, Parliament can hardly have intended to compel the employer in the private sector to consult the unions on the desirability of the transfer itself or the sufficiency of the reasons for it. These are matters of business policy for the transferring employer to decide, and the unions cannot expect to participate in the decision. The reconciliation, in my view, is this. The consultations referred to . . are voluntary consultations, which the unions may seek on any topic once they have the requisite information, but which the transferring employer is not compelled to grant if he chooses not to do so. The only consultations which he is obliged by law to enter into are those referred to . . .’

Judges:

Millet J

Citations:

[1987] IRLR 373

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981, EC Directive 77/8187, Dockyard Services Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Cable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 September 2022; Ref: scu.401955

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 interfere with the ET’s discretion, even if, had it been exercising the ET’s discretion, this court might have analysed the situation of the parties in greater depth, or given more detailed reasons for its decision, or acceded to the application to the extent of making an order for payment of some of the costs.’

Judges:

Mummery, Stanley Burnton, Patten LJJ

Citations:

[2011] EWCA Civ 1331

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dean and Dean (A Firm) and Others v DionissiouMoussaoui CA 17-Nov-2011
Appeal about costs in an employment tribunal . .

Cited by:

Cited – St Andrew’s Catholic Primary School and Others v Blundell (Practice and Procedure – Costs) EAT 10-May-2013
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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 26 September 2022; Ref: scu.448378

Yellow Pages Sales Ltd v Davie: EAT 22 Sep 2011

EAT PRACTICE AND PROCEDURE – Application/claim- JURISDICTIONAL POINTS – Claim in time – Claim form faxed to the Employment Tribunal office – Data received in host system, and successful transmission report received by sender; but due to technical error in host system data lost and no printout made
Held: Claim had been properly presented – Reference made to Tyne and Wear Autistic Society v Smith [2005] ICR 603

Judges:

Underhill P J

Citations:

[2011] UKEAT 0017 – 11 – 2209

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448164

Minakova v Brownlow Properties Ltd: EAT 12 Oct 2011

EAT PRACTICE AND PROCEDURE – Admissibility of evidence
UNLAWFUL DEDUCTION FROM WAGES
Claimant sought to introduce documentary evidence for first time during closing submissions at end of three day hearing. Properly ruled inadmissible. In any event, unlikely to advance Claimant’s case on unlawful deductions which she was unable to establish.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0381 – 11 – 1210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448165

Purohit v Hospira Uk Ltd and Another: EAT 29 Jun 2011

EAT PRACTICE AND PROCEDURE – Case management – RACE DISCRIMINATION – Direct – SEX DISCRIMINATION – Direct
The Employment Tribunal did not err in taking statements as read, and in not adjourning. It dealt with each of the 12 issues raised by the Claimant and dismissed them all, either because the event did not take place or when it did, the Employment Tribunal directed itself correctly on the law.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0229 – 11 – 2906

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448163

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 rules for intervening in a costs decision and did in fact intervene, reaching different conclusions from the ET and the EAT, but reasserted the principles that it would be unusual for there to be an intervention. Dosts are in the discretion of the Employment Tribunal and the Employment Tribunal’s powers to order costs are more sparingly exercised and are more circumscribed by the Rules of Procedure than those of the ordinary Courts; and that an Employment Tribunal Costs Order is the exception rather than rule.
Mummery LJ said: ‘I begin with some words of caution, first about the citation and value of authority on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.
The official words of [Rule 40] are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the ET, EAT and in this Court. I say ‘unfortunately’ because it was never my intention to re-write the Rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect the case in detail and compartmentalise the relevant conduct under separate headings, such as ‘nature’, ‘gravity’ and ‘effect’. Perhaps I should have said less and simply kept to the actual words of the Rule.
The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by a claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the Court that, in deciding whether to make a Costs Order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific cost being claimed. In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was a relevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.
In the matters of discretion an earlier case only stands as authority for what are, or what are not, the principles governing the discretion and serving only as a broad steer on the factors covered by the paramount principle of relevance . .’

Judges:

Mummery, Patten LJJ, Sir Henry Brooke

Citations:

[2012] IRLR 78, [2012] ICR 420, [2012] 2 All ER 215, [2011] EWCA Civ 1255

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Raggett v John Lewis Plc EAT 17-Aug-2012
raggett_lewisEAT2012
EAT PRACTICE AND PROCEDURE – Costs
In determining the amount of costs to be awarded having decided that the bringing of an unfair dismissal claim was misconceived and that a costs order should be made . .
Cited – Vaughan v London Borough of Lewisham and Others (Practice and Procedure : Costs) EAT 6-Jun-2013
EAT Practice and Procedure : Costs – Tribunal orders that Appellant should pay Respondents one-third of their costs (estimated prior to assessment at andpound;260,000) on the basis that the claim was misconceived . .
Cited – St Andrew’s Catholic Primary School and Others v Blundell (Practice and Procedure – Costs) EAT 10-May-2013
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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 26 September 2022; Ref: scu.448131

Copple and Others v Littlewoods Plc and Others: CA 8 Nov 2011

Elias LJ said: ‘This appeal raises a short point of some importance relating to the rights which certain female part-time workers can assert once they are able to establish that their employer’s pension scheme indirectly discriminated against part-timers on grounds of sex by denying them access to the employer’s occupational pension scheme. The critical feature of these part-time workers is that they would not in fact have chosen to join the pension scheme even if they had been eligible to do so.’

Judges:

Mummery, Elias, Davis LJJ

Citations:

[2011] EWCA Civ 1281

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448133

Bahous v Pizza Express Restaurant Ltd: EAT 19 Oct 2011

EAT Race Discrimination : Continuing Act – JURISDICTIONAL POINTS – Extension of time: just and equitable
Whether grievance process carried out by employer arising immediately from act of discrimination found (suspension) formed part of a continuing act; held it did, as ET found. Whether just and equitable to extend time; ET failed to consider balance of prejudice and visited legal advisor’s mistake as to time limits on Claimant (Chohan). Extension of time granted by EAT.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0029 – 11 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448109

Petrofac Offshore Management Ltd v Wilson: EAT 20 Sep 2011

EAT Contract of Employment : Wrongful Dismissal – Employee on oil rig refuses as a matter of principle to participate in a competency certification exercise – After being given a final written warning he is summarily dismissed – Claim for notice money as damages for wrongful dismissal wrongful – Majority in the ET (comprising the lay members) holds that the employee should have been dismissed with notice and is accordingly entitled to three months’ pay.
Held, allowing appeal: Claimant’s deliberate refusal to comply with a reasonable instruction unarguably constituted grounds for summary dismissal.

Judges:

Underhill P J

Citations:

[2011] UKEAT 013 – 11 – 2009

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448107

Ruhaza v Alexander Hancock Recruitment Ltd: EAT 4 Nov 2011

EAT Race Discrimination : Direct – Indirect – Continuing act
The Employment Tribunal was correct to find that it had no jurisdiction to entertain claims for direct and indirect discrimination on the grounds of race as the claims were issued out of time, and no application had been made to extend time.
Although the Employment Tribunal may have misdirected itself as to the definition of direct discrimination, the claim was clearly presented out of time. There was no basis for saying that the Claimant had been subject to a continuing act of discrimination. The Employment Tribunal, had, however failed to deal with the issue.
Insofar as the Claimant’s claims related to an alleged discriminatory policy or discriminatory advertisement such claims could only be brought by the CRE under ss28 and 29 of the Race Relations Act 1976.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0337 – 10 – 0411

Links:

Bailii

Statutes:

Race Relations Act 1976 28 29

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448113

Eaton v Spencer and Others (T/A Wiggles Experience (A Firm)): EAT 7 Oct 2011

EAT Practice and Procedure : Striking-Out or Dismissal – Default Judgment entered on liability in default of a response with remedy to be assessed. At remedy hearing Employment Judge made findings on liability issues determined by default judgment and assessed compensation on that basis.
Appellant’s appeal allowed; remedy issue remitted for re-hearing before a different Employment Judge.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0177 – 11 – 0710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448110

Transport for London and Another v Aderemi: EAT 4 Nov 2011

EAT RACE DISCRIMINATION
Direct and Victimisation
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie case that it was on the grounds of race. The phrase ‘from which it could conclude’ at paragraph 45 of the judgment is redolent of precisely the same error identified by the Court of Appeal at paragraph 31 of the judgment in Igen v Wong [2005] ICR 93 and there had to be a finding that Mr McGill had treated the Respondent less favourably before the second concept arose.
The conclusion that there was less favourable treatment of the Respondent by TFL rested to a considerable extent, on the finding at paragraph 57 of ‘institutional, unconscious, attitudinal racism, at least in relation to persons of black African ethnicity’ in TFL and was a finding based on a collection of single incidents of limited scope not justifying an inductive conclusion so broad in scope; the conclusion was unsound; Commissioners of Inland Revenue v Morgan [2002] IRLR 776 followed.
Victimisation also rested in part on the above finding and was equally unsound.
Remitted to a differently constituted Tribunal for a complete re-hearing.

Judges:

Hand QC J

Citations:

[2011] UKEAT 0006 – 11 – 0411

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Commissioners of Inland Revenue and Cleave CB v Morgan EAT 6-Feb-2002
EAT Race Discrimination – Direct . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448114

VMI (Blackburn) Ltd v Camm: EAT 2 Jun 2011

EAT Practice and Procedure : Right To Be Heard – Where an Employment Tribunal has applied rule 9 of its rules of procedure, the Respondent not having lodged a response in time, is not permitted to participate in any hearing either as to merits or remedy. NSM Music v Leefe [2006] ICR 450 followed.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0011 – 11 – 0206

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – NSM Music Ltd v Leefe EAT 20-Jun-2006
EAT Unfair Dismissal – Polkey deduction
Appeal on basis that Chairman failed to consider whether a Polkey deduction was appropriate in a failure to consult redundancy unfair dismissal. Respondent had been . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 September 2022; Ref: scu.448102

Kay v Cheadle Royal Healthcare Ltd (T/A Affinity Healthcare): EAT 12 Sep 2011

EAT Unfair Dismissal : Reasonableness of Dismissal – The Tribunal did not err in law in holding that the inconsistent treatment of another employee was not such as to make the dismissal unfair; and the Tribunal’s reasoning in support was not perverse. Hadjioannou v Coral Casinos [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305 applied.

Judges:

David Richardson J

Citations:

[2011] UKEAT 0060 – 11 – 1209

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448105

Dillon and Others v Todd and Another: EAT 21 Sep 2011

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 0010 – 11 – 2109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448103

Rodger (Builders) Ltd v MacDonald: EAT 23 Sep 2011

EAT Unfair Dismissal : Reasonableness of Dismissal – Employment Tribunal failed to address the issue of the reasonableness of the dismissal in accordance with British Home Stores v Burchell, and in particular failed to consider whether employer’s belief that employee was guilty of serious negligence was a reasonable belief arrived at after a reasonable investigation.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0020 – 11 – 2309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 September 2022; Ref: scu.448108

Veterinary Laboratories Agency v Sandvik: EAT 5 Oct 2011

EAT DISABILITY DISCRIMINATION
Direct disability discrimination
Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal did not follow earlier CMD orders for the trial of issues and made findings on different issues. It did not address time-bar and justification. Its finding on unfair dismissal was so connected with the failure to deal adequately or correctly in law with the Disability Discrimination Act 1995 points that it could not stand. Appeal allowed and a controlled remission to a fresh Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0263 – 11 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448111

Enterprise Managed Services Ltd v Dance and Others: EAT 21 Sep 2011

EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal – The majority Employment Tribunal inconsistently decided the dismissal of the Claimants was in order to harmonise conditions and as a consequence productivity was improved, and at the same time decided the move for productivity had been instituted prior to and not connected with the transfer in respect of the transferee’s existing workforce. The Employment Judge’s minority reasons did not make that error. Appeal allowed and case remitted to a different Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0200 – 11 – 2109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447625

Flintshire County Council and Others v Moore (Deceased) and Another: EAT 15 Sep 2011

EAT Unfair Dismissal : Reasonableness of Dismissal
Polkey deduction
The Employment Tribunal were entitled to find that the procedure adopted by the school authorities for selecting two teachers for redundancy was unfair, because they had left an inadequate time for effective consultation, and adopted criteria which unfairly discriminated against the Claimants. The decision was upheld save that the issue of a Polkey deduction in respect of one of the claimants was remitted to the remedy hearing.

Judges:

Carnwath LJ

Citations:

[2011] UKEAT 0379 – 11 – 1509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447626

Screene v Seatwave Ltd: EAT 26 May 2011

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
Letter terminating employment refers to ‘misconduct’. Employer’s response to unfair dismissal claim refers to capability. Issue as to whether the change of label was of any significance on the facts.

Judges:

Luba QC J

Citations:

[2011] UKEAT 0020 – 11 – 2605

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447623

Hinton v Argos Ltd: EAT 7 Oct 2011

EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
The Employment Tribunal clearly found the Claimant was dismissed fairly by reason of redundancy. That finding meant that the claim that he was dismissed for whistleblowing failed. There was no error of law.
It is reasonably arguable that the claim of per-employment detriments which failed as a matter of construction of Employment Rights Act 1996 s43B and application of Cavendish Munro Professional Risks Management Ltd v Geduld was wrong.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0569 – 11 – 0710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447629

Kaltz Ltd v Hamer: EAT 15 Sep 2011

EAT Victimisation Discrimination : Whistleblowing
UNFAIR DISMISSAL – Contributory fault
It was open to an Employment Tribunal to dismiss an ordinary unfair dismissal claim and uphold a whistleblowing claim. The findings as to that were discrete and free-standing. But it was reasonably arguable that the Employment Tribunal erred in holding as a principle that contribution to such an automatically unfair dismissal could not be found.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 1853 – 10 – 1509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447627

Okuoimose v City Facilities Management (UK) Ltd: EAT 13 Sep 2011

EAT JURISDICTIONAL POINTS – Fraud and illegality
The Claimant was a member of the family of an EEA national and so was at all times entitled to reside and work in the UK, irrespective of the expiry of the entry in her passport. The Employment Judge who found the contract of employment had become illegal, and so the Claimant could not enforce her claim for unlawful deductions, had considered irrelevant factors viz the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0192 – 11 – 1309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447628

Nolan v Balfour Beatty Engineering Services: EAT 19 Oct 2011

EAT Trade Union Membership – JURISDICTIONAL POINTS – Extension of time: reasonably practicable
Time Limits. Construction Industry blacklisting complaint. TULRA s.139. Whether or not Claimant had presented complaint within a reasonable time once he was aware of relevant facts. On appeal, Tribunal’s finding that he had failed to do so upheld.

Judges:

Smith J

Citations:

[2011] UKEAT 0109 – 11 – 1910

Links:

Bailii

Statutes:

Trade Union and Labour Relations Act 1992 139

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447630

Price v Surrey County Council and Another: EAT 27 Oct 2011

EAT Victimisation Discrimination : Detriment – Dismissal
The EAT upheld the Tribunal’s finding of unfair constructive dismissal, based on the misleading content of the letter in which the findings of an internal inquiry were conveyed to her. Following Buckland v Bournemouth University [2010] IRLR 445, it was common ground that the repudiatory breach at that stage was not cured by a subsequent appeal hearing. The EAT also upheld the Tribunal’s rejection of the protected disclosure claim, since the reason for the forced dismissal was not the making of the protected disclosure, but its handling by the school authorities. The EAT also commented on the need for employment judges to exercise control over the form of list of issues, even when agreed between the parties.

Judges:

Carnwath LJ

Citations:

[2011] UKEAT 0450 – 10 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447631

Kantoh v Kent and Medway Nhs and Social Care Partnership Trust: EAT 3 Aug 2011

EAT Unfair Dismissal : Reasonableness of Dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Tribunal found the Claimant was fairly dismissed. It did not give adequate reasons, did not describe its response to the Claimant’s case or cite his evidence and impermissibly made findings of his guilt. Appeal allowed and case remitted to fresh Employment Tribunal on unfair dismissal only.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0526 – 10 – 0308

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 September 2022; Ref: scu.447624

Kahn v University of Warwick and others: EAT 20 Jul 2004

Citations:

[2004] UKEAT 1223 – 02 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Kahn v The University of Warwick Professor Paliwala, Professor Mcconville EAT 20-Jul-2004
EAT Sex Discrimination and Disability Discrimination – Victimisation
The ET gave no weight to relevant admissible probative evidence because of a misapprehension of the circumstances of its being adduced. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 September 2022; Ref: scu.199682

Rowden v Dutton Gregory Solicitors: EAT 1 Mar 2001

Disability Discrimination – Disability.

Citations:

[2001] UKEAT 1116 – 00 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Rowden v Dutton Gregory Solictors EAT 17-Dec-2001
EAT Disability Discrimination – Disability
EAT Disability Discrimination – Disability. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 September 2022; Ref: scu.203736

Dench ex parte v Fynn and Partners (a Firm): CA 25 Jun 1997

Application for leave to appeal – granted.

Judges:

Ward, Mummery LJJ

Citations:

[1997] EWCA Civ 1953

Jurisdiction:

England and Wales

Citing:

Cited – Dench v Fynn and Partners (A Firm) EAT 26-Feb-1997
Preliminary hearing to see if there is an arguable issue of law arising out of the Tribunal decision. . .

Cited by:

See Also – Dench v Fynn and Partners EAT 30-Oct-1997
. .
See Also – Dench v Flynn and Partners (a Firm) CA 9-Jun-1998
The appellant had been dismissed for redundancy. She sought to appeal saying that there had been no redundancy. The tribunal had refused to award damages for the period after she had found alternative employment.
Held: The obtaining of . .
See Also – Dench v Fynn and Partners EAT 24-Sep-1999
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 September 2022; Ref: scu.142349

Agard v Westminster Kingsway College: CA 20 Oct 2011

Judges:

Rimer LJ

Citations:

[2011] EWCA Civ 1169

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Gilbert and others v Barnsley Metropolitan Borough Council EAT 12-Apr-2002
EAT Mr Gilbert was paid for 44 weeks a year, of which 38 weeks were those in which he was required to work. The issue was whether, as the ET had held, ‘a week’s pay’ fell to be calculated by dividing the annual . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 September 2022; Ref: scu.445853

Willets v The Jennifer Trust for Spinal Muscular Atrophy: EAT 28 Sep 2011

EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: reasonably practicable
Resignation notice by Claimant. Whether termination date extended by agreement. What was the EDT? If outside the three-month limit, was it not reasonably practicable to lodge the claim in time? Appeal allowed on both questions. Claim not time-barred.

Judges:

Peter Clarke J

Citations:

[2011] UKEAT 0282 – 11 – 2809

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 September 2022; Ref: scu.445657

Ram v JD Wetherspoon Plc: EAT 25 Aug 2011

EAT Unfair Dismissal : Compensation – Claimant of Indian nationality given leave to enter the UK on basis of work permit authorising employment by Respondent for five years – Claimant unfairly dismissed during fifth year – Tribunal caps compensation as at date of expiry of the five-year period on basis that it would have been unlawful for Respondent to employ him thereafter.
Appeal allowed on the basis that the Appellant would before the expiry of that period have applied for indefinite leave to remain (as he had in fact since done) and that the effect of section 3C of the Immigration Act 1971 was that it would have remained lawful for him to work pending determination of that application (Klusova v London Borough of Hounslow [2008] ICR 396 followed).

Judges:

Underhill P J

Citations:

[2011] UKEAT 0080 – 11 – 2508

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 September 2022; Ref: scu.445646

Debique v Ministry of Defence: EAT 15 Sep 2011

EAT SEX DISCRIMINATION – Other losses
RACE DISCRIMINATION – Other losses
Appellant gives notice to leave the Army as a result of sex and race discrimination (see [2010] IRLR 471) – During notice period offered a new posting on the basis that it would resolve the childcare difficulties which had given rise to the discrimination claim – Offer not accepted – At remedy hearing awarded compensation for injury to feelings but no compensation for loss of earnings, on the basis that she had failed to mitigate her loss, and no aggravated damages.
Held, dismissing appeal:
(1) Tribunal entitled to find that Appellant had failed to mitigate her loss – Wilding v British Telecommunications Plc [2002] ICR 1079 followed
(2) Tribunal not obliged to make an award of aggravated damages

Judges:

Underhill P J

Citations:

[2011] UKEAT 0075 – 11 – 1509

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – F and G Cleaners v Saddington and Others EAT 16-Aug-2012
EAT UNFAIR DISMISSAL – Mitigation of loss
The Claimants worked for Respondent 1 who supplied window cleaning services under contract to a local authority. The contract was subject to a re-tendering process; . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 September 2022; Ref: scu.445647

Charles Scott and Partners Consulting Engineers Ltd v Hamilton: EAT 9 Aug 2011

EAT Redundancy : Fairness – Redundancy dismissal. Failure to consult but meetings with employee subsequent to decision to dismiss. Decision on appeal taken by same persons as had decided to dismiss, namely all four of the employers’ directors. Tribunal’s finding of unfair dismissal overturned on appeal. Tribunal had carried out an over-minute investigation of the scoring process and substituted their own view of what would have been an appropriate procedure. They had proceeded (erroneously) on the basis that all criteria required to be objective and that two of the criteria were discriminatory (although the Claimant did not claim he had been discriminated against). They found that it was essential that appeals be heard by different persons from those involved in the original decision to dismiss, had made an unexplained finding that the dismissal was substantively unfair as well as procedurally unfair, had failed to explain their decision not to make a Polkey deduction in circumstances where the issue plainly arose, and had failed to consider and find what would have been the outcome had a fair procedure been followed. On appeal, judgment of Employment Tribunal overturned and case remitted to a fresh Tribunal for a rehearing.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0072 – 10 – 0908

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 September 2022; Ref: scu.445645

Paymentshield Group Holdings Ltd v Halstead: EAT 9 Sep 2011

EAT PRACTICE AND PROCEDURE
Postponement or stay
Case management
The Claimant issued a claim. Then a CPR pre-action protocol letter and draft P/C requiring the Respondent’s response. The Respondent sought a stay in the Employment Tribunal. The Claimant consented then sought its reinstatement. The Employment Judge granted that, as the High Court proceedings had not been issued. Another Employment Judge did the same. He erred in not correctly applying Mindimaxnox to the facts. This was a case which should be stayed until any HC claim is resolved. Mindimaxnox principles applied even though no HC claim has been issued. The sole reason for the Claimant resisting a stay was that he could only fund the HC claim out of any Employment Tribunal award. By consent the EAT exercised the Employment Judge’s discretion. Stay restored.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0470 – 11 – 0909

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 September 2022; Ref: scu.445654

The Governing Body of Beechview School and Another v Griffin: EAT 29 Sep 2011

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – New evidence on appeal
Claimant’s application to adduce evidence ruled inadmissible by Employment Judge refused. Respondents’ appeal against finding of unfair dismissal allowed in part. One issue of procedural unfairness remitted to Employment Tribunal for reconsideration. A second held to be erroneously decided by Employment Tribunal. Polkey issue to be determined if dismissal found procedurally unfair on remission.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0162 – 11 – 2909

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 September 2022; Ref: scu.445649

Readman v Devon Primary Care Trust: EAT 1 Sep 2011

EAT PRACTICE AND PROCEDURE – Amendment
Decision on hearing under rule 3 (10) – Observations on approach to grant of leave to amend Notice of Appeal at hearings under that rule.
The first notice of appeal had included allegations of bias. Much work was undertaken to look into and document the allegations. It was rejected. A second notice was then entered making a new set of allegations. Yet more work was required. That also was rejected. On an oral application a further ground was advanced, which was allowed to go forward.
Where a new point arises on a litigant in person first receiving professinal assistanace at the EAT, it will generally be in the interests of justice

Judges:

Underhill P J

Citations:

[2011] UKEAT 0116 – 11 – 0109

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Khudados v Leggate and others EAT 16-Feb-2005
Application was made to make extensive amendments to the notice of appeal.
Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .
Cited – Ladbrokes Racing Ltd v Traynor EAT 3-Oct-2007
ladbrokes_traynorEAT2007
Practice and Procedure: Amendment
Appeal from what was described by a Tribunal as an ‘order’ granting Claimant leave to amend in the course of the hearing on evidence in a claim for unfair dismissal. Claimant seeking to cross examine in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 September 2022; Ref: scu.445655

Griffin v The Governing Body of Beechview School and Another: EAT 29 Sep 2011

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – New evidence on appeal
Claimant’s application to adduce evidence ruled inadmissible by Employment Judge refused. Respondents’ appeal against finding of unfair dismissal allowed in part. One issue of procedural unfairness remitted to Employment Tribunal for reconsideration. A second held to be erroneously decided by Employment Tribunal. Polkey issue to be determined if dismissal found procedurally unfair on remission.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0163 – 11 – 2909

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 September 2022; Ref: scu.445650

Smith and Others v Trustees of Brooklands College: EAT 5 Sep 2011

EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE transfer more than two years earlier and was not in order to achieve harmonisation of all employees’ salaries.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0128 – 11 – 0509

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006, Council Directive 2001/23

Jurisdiction:

England and Wales

Citing:

Cited – London Metropolitan University v Sackur and others EAT 17-Aug-2006
The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its . .
Cited – Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run . .
Cited – Wilson and Others v St Helens Borough Council EAT 10-Apr-1996
Variation of employment terms which arose on a transfer of an undertaking were ineffective. Mummery P J said: ‘It is also an error on the part of the tribunal to conclude that the affirmation of the contract by the subsequent conduct of the parties . .
Cited – London Metropolitan University v Sackur and others EAT 17-Aug-2006
The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – Martin and others v South Bank University ECJ 6-Nov-2003
Workers had been transferred from the NHS to the university sector and were required on their emergence into education to join the educational pension scheme.
Held: ‘In circumstances such as those in the main proceedings, the alteration of the . .
Cited – Berriman v Delabole Slate Ltd CA 1985
Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of . .
Cited – Martin and others v South Bank University ECJ 6-Nov-2003
Workers had been transferred from the NHS to the university sector and were required on their emergence into education to join the educational pension scheme.
Held: ‘In circumstances such as those in the main proceedings, the alteration of the . .
Cited – Thompson v SCS Consulting Ltd and others EAT 3-Sep-2001
. .
Cited – Klusova v London Borough of Hounslow CA 7-Nov-2007
Lord Justice Mummery said: ‘On the issue of ‘some other substantial reason’ for dismissal, I agree with the appeal tribunal. The employment tribunal erred in law in finding that the council did not genuinely believe that the continued employment of . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 20 September 2022; Ref: scu.445656