EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
AGE DISCRIMINATION
Dismissal of employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65, said to be unfair and to constitute age discrimination because employer had failed, in its purported retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996, to specify the retirement date: it had said that he would be retired ‘after’ his 65th birthday.
Held that ‘after’ did not always mean ‘on a date later than’ and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later) – On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0609 – 10 – 1205

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 1996

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441162

EAT PRACTICE AND PROCEDURE – Costs
Tribunal wrong to make a wasted costs order because it did not properly address the Appellant’s case that he was not acting in pursuit of profit within the meaning of rule 48 (4); and on evidence heard by the EAT he in fact was not so acting – Observations on the question of the stage at which wasted costs applications should be heard.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0402 – 09 – 0806

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441168

EAT REDUNDANCY
Collective consultation and information
Protective award
Where an individual claimant seeks a protective award under s188-189 TULRCA the Employment Tribunal only has jurisdiction to make an award in his favour and cannot make an award that benefits other redundant employees.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0051 – 11 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441152

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Reinstatement/Re-engagement
Unfair dismissal. Capability. Appeal against finding of unfair dismissal upheld; the Employment Tribunal had no basis for finding that the employers were not entitled to conclude, on the expert evidence available to them, that the Claimant was fit to return to work to perform the job of production manager and had also substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.

Judges:

Smith J

Citations:

[2010] UKEAT 0053 – 09 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441151

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements – REDUNDANCY – Fairness
The employee was one of five employees working in a department of the employer’s transport undertaking. There were two controllers, one manager, and two administrative assistants. In a downturn of business, the employer decided to close the ‘desk’, but keep the two administrative assistants doing the same job as before. An appeal on the basis that the Tribunal should have found that the dismissal of the manager was unfair because there should have been selection criteria, consultation leading to the adoption of those criteria, the Claimant manager considered for appointment to a subordinate position, and that the decision to the contrary was perverse was dismissed: on the facts, the Tribunal had been entitled to regard the relevant posts as all being redundant such that no selection criteria were required, since no choice as between candidates for dismissal by reason of the redundancies was involved.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0418 – 10 – 1705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.441167

EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Impact on compensation
UNFAIR DISMISSAL – Compensation
Unfair dismissal. Misconduct dismissal: excessive personal use of internet and email and failure to carry out work allocated, employee having, three months earlier, been disciplined for like conduct and received a written warning. Employee admitted ‘charges’ of misconduct and put forward in mitigation that he had had previous problems with depression and that his health problems had increased at the time his prohibited use of the internet had resumed.
Employers conceded that dismissal automatically unfair due to their failure to communicate via their Step 1 letter that they were contemplating dismissing the Claimant but sought both a Polkey reduction and a reduction on account of the Claimant’s contribution to his own dismissal. Employment Tribunal found that the dismissal would have been unfair in any event because the third strand of the Burchell test had not been complied with; the employers had failed to properly investigate the import of an ‘internet usage’ report and had failed to investigate the employee’s health further – they had failed to investigate whether his conduct could have been linked to his medical condition. As to contribution, Tribunal found that Claimant had contributed to his own dismissal by failing to carry out the work he was employed to do, by using the internet excessively, by failing to take steps himself to obtain medical assistance and by failing to alert his managers to the fact that he was in difficulty; they fixed contribution at 15%. On appeal, Employment Tribunal held to have misdirected itself. This being a case of admitted misconduct, there was little scope for further investigation and in all the circumstances, dismissal was plainly within the range of reasonable responses open to the Respondents. It was not open to them to find that the third strand of Burchell had not been met. Dismissal would, clearly, without the procedural failure, have been on the agenda. There should, plainly, have been a substantial Polkey reduction. Employers do not, in general, have a duty to investigate matters advanced in mitigation. As to contribution, 15% was, in all the circumstances, so low as to be perverse. Case remitted to Employment Tribunal for a rehearing.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0043 – 10 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.440152

Judges:

Morison P J

Citations:

[1999] UKEAT 1023 – 98 – 1407

Links:

Bailii

Employment

Updated: 13 September 2022; Ref: scu.440157

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Dissatisfied with opinions under rules 3(7) and (8), and seeing no justice in the EAT, the Claimant, at times with legal help, chose to go to the Court of Appeal where a Deputy Master declined to hear him as he had not exhausted the process in the EAT by a rule 3(10) hearing. His by now out of time application to the EAT was refused as no good excuse had been given, even though exhaustion of process is not a requirement for an appeal under ETA s 37.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0659 – 10 – 1404

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.440148

EAT PRACTICE AND PROCEDURE – Perversity
The Tribunal decided key issues, relating to the Claimant’s reasons for resigning from a job in December 2007, on the basis that there were no entries in medical records reflecting her case that she was suffering from work-related stress at that time. This was a mistaken finding or assumption on the part of the Tribunal, which in this respect placed upon a medical report commissioned to deal with different issues a weight which it could not bear. There were in fact important contemporaneous entries in the Claimant’s records reflecting her case that she was suffering from work related stress. The Tribunal could not legitimately assume the contrary without raising the matter with the witnesses. Appeal allowed. Case remitted.

Judges:

Richardson J

Citations:

[2011] UKEAT 0335 – 10 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.440150

EAT UNFAIR DISMISSAL – S.98A(2) ERA
The Employment Tribunal did not err in holding s98A(2) did not make this dismissal fair. On a generous reading of its judgment applying Fuller v Brent and Bowater, this was not a procedural defect ‘by itself’ for the dismissal was caused by the Respondent’s attitude to his previous sexual relationship with the Claimant. A Polkey hearing will follow.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0562 – 10 – 2604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.440153

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
UNFAIR DISMISSAL – Constructive dismissal
Constructive dismissal case – inadequate reasons by Employment Tribunal – remitted to fresh ET for rehearing.

Judges:

Bean J

Citations:

[2011] UKEAT 0589 – 10 – 1904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.440151

EAT UNLAWFUL DEDUCTION FROM WAGES
Non-payment of wages by employer whilst employee was remanded in custody pending his trial on criminal charges. Employment Tribunal conclusion that there was no unlawful deduction affirmed on appeal.

Citations:

[2011] UKEAT 0500 – 10 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.440147

Whether claimant had been continuously emloyed

Judges:

Hicks QC HHJ

Citations:

[1999] UKEAT 718 – 98 – 1409

Links:

Bailii

Employment

Updated: 13 September 2022; Ref: scu.440158

Citations:

[2000] EAT 1121 – 99 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 September 2022; Ref: scu.264674

There had been a dispute over pay between the proprietors of local newspapers and journalists employed by them, the majority of whom were members of a trade union, the NUJ. Strike action was taken against the local newspapers. Those newspapers received news copy from the Press Association, a London based news agency staffed by journalists. To make the strike more effective, the NUJ called the journalists in the Press Association out on strike, an action which would affect national newspapers, with whom there was no dispute, as well as local newspapers. When about half of the journalists on the Press Association remained at work, the NUJ called on its members working for national newspapers, including the plaintiffs’ newspapers, to refuse to use copy which came from the Press Association. The NUJ defended an application for an interlocutory injunction on the basis that it was acting in ‘furtherance of a trade dispute’ within the meaning of the relevant statutory provision. The plaintiffs were successful both at first instance and in the Court of Appeal.
Held: The House allowed the appeal, holding that the acts of the defendants were not actionable since they were done in furtherance of a trade dispute.
The expression ‘in . . furtherance of a trade dispute’ in the section in issue ‘refers to the subjective state of mind of the person doing the act and means that he so acts with the purpose of helping parties to the dispute to achieve their objectives in the honest and reasonable belief that it will do so’.
Lord Wilberforce, dissenting, held that the test was objective and to an extent was based on remoteness, but, as the head note indicates, his view was that the proper objective test is whether the act done, pursuant to the general intention, is reasonably capable of achieving its objective. The speeches of both Lord Diplock and Lord Scarman highlight the difficulties which a court would encounter in endeavouring to objectively assess what is in ‘furtherance’ of a trade dispute having regard to the dynamics of industrial action in a particular context.
Lord Diplock explained the rationale behind the subjective test approach, saying: ‘Given the existence of a trade dispute (the test of which, though broad, is nevertheless objective . . ), this makes the test of whether an act was done ‘in . . furtherance of’ it a purely subjective one. If the party who does the act honestly thinks at the time he does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he is protected by the section. I say ‘may’ rather than ‘will’ help, for it is in the nature of industrial action that success in achieving its objectives cannot be confidently predicted. Also there is nothing in the section that requires that there should be any proportionality between on the one hand the extent to which the act is likely to, or be capable of, increasing the ‘industrial muscle’ of one side to the dispute, and on the other hand the damage caused to the victim of the act which, but for the section, would have been tortious. The doer of the act may know full well that it cannot have more than a minor effect in bringing the trade dispute to the successful outcome that he favours, but nevertheless is bound to cause disastrous loss to the victim, who may be a stranger to the dispute and with no interest in its outcome. The act is none the less entitled to immunity under the section.’
Lord Scarman stated: ‘The words, ‘An act done by a person in contemplation or furtherance of a trade dispute’ seem to me, in their natural and ordinary meaning, to refer to the person’s purpose, his state of mind. The Court must satisfy itself that it was his purpose, and, before reaching its decision, will test his evidence by investigating all the circumstances and applying the usual tests of credibility: that is to say, it will ask itself whether a reasonable man could have thought that what he was doing would support his side of the dispute, or whether the link between his actions and his purpose was so tenuous that his evidence is not to be believed. But, at the end of the day, the question for the Court is simply: is the defendant to be believed when he says that he acted in contemplation or in furtherance of a trade dispute?’ He wentto describe the test as subjective: ‘It follows, therefore, that once it is shown that a trade dispute exists, the person who acts, but not the court, is the judge of whether his acts will further the dispute. If he is acting honestly, Parliament leaves to him the choice of what to do. I confess that I am relieved to find that this is the law. It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further, or advance, that party’s side of the dispute . . It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of a backseat driver in trade disputes.’

Judges:

Wilberforce, Diplock Scarman LL

Citations:

[1980] AC 672

Jurisdiction:

England and Wales

Cited by:

Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 September 2022; Ref: scu.223724

Citations:

[1992] UKEAT 364 – 91 – 0107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.211052

Judges:

McMullen QC HHJ

Citations:

[2002] UKEAT 1442 – 01 – 1410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.203157

Citations:

[1998] UKEAT 601 – 98 – 0210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.206808

Citations:

[2019] EWCA Civ 2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.644125

Citations:

[2015] UKFTT PEN – 2015 – 0004

Links:

Bailii

Statutes:

Pensions Act 2008

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.644203

Citations:

[2018] EWHC 3251 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.631199

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
CONTRACT OF EMPLOYMENT – Whether established
The Tribunal’s reasons for concluding that the dismissal of the Claimant was not unfair did not adequately address the issues which were raised before it; they did not comply with rule 30(1)(e) of the Employment Tribunal Rules or the test laid down in Meek.
There was an issue before the Tribunal as to which company within a group was the Claimant’s employer. The Tribunal did not resolve this issue. It was not sufficient to say that all the named companies within the group should be jointly and severally liable for the judgment; there was no basis for supposing that all the named companies jointly employed the Claimant.

Judges:

Richardson J

Citations:

[2011] UKEAT 0551 – 10 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439858

Citations:

[2002] UKEAT 1259 – 01 – 2504

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439859

EAT UNFAIR DISMISSAL – Constructive dismissal
Constructive Dismissal – implied term of trust and confidence. Employment Tribunal having been referred to Buckland (CA), nevertheless applied Claridge approach (Elias P), disapproved in Buckland – Appealed allowed and case remitted to the same Employment Tribunal for reconsideration

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0518 – 10 – 0704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439848

EAT TRANSFER OF UNDERTAKINGS – Transfer
PHR – TUPE – whether relevant transfer – no material findings of fact by Employment Tribunal to support findings of relevant transfer under reg 3 (1) (a). Case remitted to fresh Employment Tribunal upon the appeal being allowed.

Citations:

[2011] UKEAT 0441 – 10 – 0604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439847

EAT EQUAL PAY – Compensation
Where a comparator in an equal pay claim is added by amendment the question whether the ‘arrears date’ for the purpose of section 2 (5) of the Equal Pay Act 1970 in respect of that comparison runs from the date of the presentation of the original claim or from the date of the application for permission to amend depends on whether the addition/substitution of the comparator in question involves a difference in the work by reference to which the claim is made – Discussion of the ‘new cause of action’ authorities: Bainbridge; Potter (no. 2); and Brett.

Citations:

[2011] UKEAT 0604 – 10 – 0203

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439845

Citations:

[2002] UKEAT 0001 – 02 – 2609

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439861

Citations:

[2002] UKEAT 451 – 00 – 2407

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439860

EAT CONTRACT OF EMPLOYMENT – Wrongful dismissal
Wrongful dismissal. It was part of the case for the employer, the Respondent below, that the Claimant had used a work computer during working time for the purposes of another business and had been dishonest when questioned both about his involvement in another business and about his working for that business during working time. The Tribunal did not deal with this part of the case.

Judges:

Richardson J

Citations:

[2011] UKEAT 0543 – 10 – 0405

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439856

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
Claims of unfair dismissal / WD presented one day out of time. Claimant mistakenly believed that time ran from the day after EDT.
Whether ignorance of deadline reasonable. No evidence that he was mislead or made any enquiries or sought advice during limitation period. R appeal against extension of time allowed.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0520 – 10 – 0804

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439849

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal had correctly directed itself and was entitled to find on the facts that a dismissal for redundancy was fair; that the selection process was fair and applied reasonably. It was not appropriate for an Employment Tribunal to scrutinise the marking in redundancy selections in the absence of obvious mistake or absence of good faith.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0374 – 10 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439857

Citations:

[2003] UKEAT 0002 – 03 – 2506

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439866

Citations:

[2002] UKEAT 0021 – 02 – 1012

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439865

EAT UNFAIR DISMISSAL
AGE DISCRIMINATION
The appeal concerned the statutory right to request not to retire and in particular paragraphs 2 and 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006 (now repealed).
Held:
(1) In order to comply with paragraph 2(1) of Schedule 6 an employer was required to inform an employee in writing of the essential conditions for exercising the right conferred by paragraph 5.
(2) Paragraph 5(3) required that an employee’s statutory request must be in writing and must state that it was made under this paragraph. These were mandatory requirements.
(3) Accordingly the employer’s letter, which did not inform the employee of this essential condition for exercising the right conferred by paragraph 5(3), did not satisfy the requirements of paragraph 2(1) of Schedule 6.
Appeal allowed. Finding substituted that the reason for dismissal was retirement and the dismissal was unfair. Compensation awarded in the sum of andpound;4455.

Citations:

[2011] UKEAT 0370 – 10 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439851

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
Question whether the period between the Appellant learning of a possible blacklisting claim under s. 137 of TULR(C)A and bringing proceedings was reasonable within the meaning of s.139 (1) (identically worded to s. 111 (2) of 1996 Act) – Judge failed to take into account part of the evidence – Remitted – Issue as to whether the ‘Dedman principle’ applied equally to the question whether the period between discovery of the cause of action and the presentation of the claim was ‘reasonable’ – Held that in considering the question whether the period was reasonable the fact that any unreasonable delay was the fault of the Claimant’s advisers could not assist the Claimant.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0537 – 10 – 0504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439846

EAT UNFAIR DISMISSAL
An act is on the ground that an employer has made a protected disclosure within the meaning of the Employment Rights Act 1996 section 47B if it is done by reason of such a disclosure or because the act was inherently for such a reason. Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 and Amnesty International v Ahmed [2009] ICR 1450 applied.
By contrast the question of whether a claimant was subject to a detriment by such an act is one of causation.
The time limit for bringing a claim under ERA section 47B runs from the date of the act done on the grounds of the protected disclosure not from the last of the chain of events linked to but not on grounds of that disclosure or from the detriment caused by the act. London Borough of Harrow v Knight [2003] IRLR 40 considered. The Employment Tribunal did not err in holding the Appellant’s claim under ERA section 47B to be out of time. The Employment Tribunal did not err in dismissing the Appellant’s claims for ‘automatic’ and ordinary unfair dismissal under ERA sections 103A and 98.

Citations:

[2011] UKEAT 0254 – 10 – 0402

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439843

EAT WORKING TIME REGULATIONS
VICTIMISATION DISCRIMINATION – Whistleblowing
1. The Claimant was a ‘mobile worker’ to whom the Road Transport (Working Time) Regulations 2005 (‘the RTR’) applied. The Tribunal did not consider the RTR; and if it had considered the RTR ought to have found that the Claimant was correct in asserting that if the Respondent required him to work a ‘period of availability’ it was not entitled to require him to stay in the depot: definitions of ‘period of availability’, ‘working time’ and ‘workstation’ in reg. 2 applied.
2. The Tribunal ought to have considered whether the Claimant, when he raised this issue with his manager, made a protected disclosure: see section 43C(1)(a) of the Employment Rights Act 1996. Moreover, although disclosure to VOSA was not protected by virtue of section 43C, it might potentially be protected by virtue of section 43G.
3. The Tribunal did not make adequate findings to address the Claimant’s case under section 100(1)(c) of the Employment Rights Act 1996.
4. The Tribunal’s findings concerning the principal reason for dismissal were vitiated by its misunderstanding of the RTR and its failure to make adequate findings to deal with the Claimant’s case under section 100(1)(c).
5. Section 101A and section 45A of the Employment Rights Act 1996 do not extend to contraventions of or rights conferred by the RTR; no process of interpretation can add the RTR to section 101A(2) and section 45A(5).
Appeal allowed. Case remitted for re-hearing.

Citations:

[2011] UKEAT 0085 – 10 – 1605

Links:

Bailii

Employment

Updated: 12 September 2022; Ref: scu.439842

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
Judge held that it was not reasonably practicable for Claimant to present unfair dismissal claim because he was awaiting the outcome of an internal appeal – Decision upheld – Bodha v Hampshire AHA and Palmer v Southend-on-Sea Borough Council distinguished on the basis that those were cases when the applicant was, or should have been, aware of the limits and delayed claiming nevertheless, whereas in this case he was (reasonably) ignorant of them

Judges:

Underhill P J

Citations:

[2011] UKEAT 0079 – 11 – 2403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 September 2022; Ref: scu.439844

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
With the exception of a minor correction, made administratively and without objection by the Respondent, the Claimant’s criticisms of the practice and procedure of the Employment Tribunal and EAT were misconceived.

Citations:

[2010] UKEAT 0541 – 10 – 1309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.425484

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Compensation
The Employment Tribunal did not err in applying the test in Burchell, albeit it misstated it, and holding the employer did not carry out sufficient investigation into an allegation of misconduct. It recognised that a high standard was required given the allegation: A v B applied. The assessment of compensation by the Employment Tribunal, invoking its knowledge of the economic climate, was correct.

Citations:

[2010] UKEAT 0166 – 10 – 1009

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.425485

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Tribunal correct in finding that the employers failed to consult properly on the size of the pool, but were in error in finding that the pool had to be two.

Citations:

[2010] UKEAT 0198 – 10 – 2210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.425486

EAT REDUNDANCY – Fairness
Fair consultation during redundancy also involves giving an employee an explanation for why he has been marked down in a scoring exercise

Citations:

[2010] UKEAT 0028 – 10 – 1310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.425487

Citations:

[1836] EngR 687, (1836) 4 Ad and E 976, (1836) 111 ER 1050

Links:

Commonlii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.315019

Redundancy: Protective award
Practice and Procedure: Parties
Dismissals without consultation when company placed in receivership – protective award made in favour of GMB trade union representing manual workers in respect of those employees ‘dismissed on 3 May or 5 May 2006’ – held, that this award could not benefit manual workers, not members of the union, dismissed on other dates in May 2006, and that as matters stood such workers had no remedy against the Secretary of State; but that such workers could apply to the employment tribunal to be joined out of time as parties to the GMB case, for the decision in the GMB case to be reviewed so as to cover dismissals on other dates, and for any consequent protective award to be recoverable as a debt from the Secretary of State.

Citations:

[2008] UKEAT 0313 – 07 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.266408

EAT Procedural Issues – Employment Tribunal.

Judges:

His Hon Judge Clark

Citations:

EAT/0001/01 and EAT/0002/01

Links:

EAT

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.255542

Citations:

[2002] EWCA Civ 1784

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 11 September 2022; Ref: scu.217781

Citations:

[1996] UKEAT 89 – 95 – 0503

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.208246

Citations:

[2004] EWCA Civ 452

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Konarzewska v Laurie Moran Arthur (Solicitors) EAT 7-Aug-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.196079

The applicant was an agency worker with an employment agency.
Held: The end-user was under no legal obligation to pay the applicant and the applicant was under no legal obligation to work for the end-user. Control over the applicant by the end-user was explicable by virtue of the contract between the applicant and the agency, which made it unnecessary to imply a contract between the applicant and the end-user.
Elias J said: ‘The significance of mutuality is that it determines whether there is a contract in existence at all. The significance of control is that it determines whether, if there is a contract in place, it can properly be classified as a contract of service, rather than some other kind of contract.’

Judges:

Elias J

Citations:

[2002] UKEAT 1314 – 01 – 1111, [2003] ICR 471

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Drake v Ipsos Mori UK Ltd EAT 25-Jul-2012
drake_ipsosEAT2012
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant worked for the Respondent as a market researcher under a succession of individual assignments. The Employment Judge erred in law in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.203265

The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to offices to work. The court was called upon to give guidance as to the difference between a contract of service, and a contract for services, in the context of such triangular arrangements.
Held: The appeal by the Agency was allowed. ‘The starting point is that it is highly unlikely that paid work was done by the applicant in the absence of a contract of some kind.’ The tribunal should not focus on the contracts alone, but should go back to the words of the statute. The statutory definition of a contract of employment as a ‘contract of service’ expressly includes an ‘implied’ contract, and a contract of service may be deduced as a necessary inference from the conduct of the parties and from the circumstances surrounding the parties and the work done. Whilst it was now too late to address the situation as between the claimant and the council, an implied contract may have existed, but she was not an employee of the appellant bureau.
Mummery LJ said: ‘Although there was no express contract between the applicant and the end user in this case, that absence does not preclude the implication of a contract between them. That depends on the evidence, which includes, but may not be confined to, the contractual documents.’

Judges:

Lord Justice Mummery, Munby J

Citations:

[2004] EWCA Civ 217, Times 19-Mar-2004, [2004] ICR 1437, [2004] IRLR 358

Links:

Bailii

Statutes:

Employment Rights Act 1996 94 230(2)

Jurisdiction:

England and Wales

Citing:

Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .
Appeal from – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Market Investigations v Minister of Social Security 1969
One way of deciding whether a person is self employed is to ask whether he can be said to be running a business of his own. Different tests may have to be combined to produce an overall answer.
Cooke J said: ‘The fundamental test to be applied . .
Cited – Massey v Crown Life Insurance Co 1978
. .
Cited – Young and Woods Ltd v West CA 11-Feb-1980
The applicant had complained of unfair dismissal.The employment contract had been dressed as a self employed service provider’s contract to privide him with tax, and was unlawfully so. The employer appealed, saying that as an unlawful contract, the . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Mears v Safecar Security Ltd CA 2-Jan-1981
There is generally a presumption that sick pay will be paid. A term would be implied if the contract was silent on the point. In implying terms into a contract of employment (the terms in that case relating to sick pay) courts and tribunals were not . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Wickens v Champion Employment EAT 1984
The claimant was an employee of the defendant employment agency. She was dismissed, but in order to succeed, she had to show that the agency had more than 20 employees. To do so she had bring the agency workers in as employees. The tribunal . .
Cited – Ironmonger v Movefield Ltd t/a Deering Appointments EAT 1988
A court should not infer that a person is an employee not an independent contractor only because he or she does not appear to be running a business. The tribunal should have applied the definition from the 1976 Regulations which defined a self . .
Cited – Construction Industry Training Board v Labour Force QBD 1970
In this industrial training levy case there was an appeal on a point of law against the imposition of the levy on a company, Labour Force Limited, which was engaged in the supply of labour to contractors in the construction industry, but not as an . .
Cited – Raymond Franks v Reuters Limited, First Resort Employment Limited CA 10-Apr-2003
The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he . .
Cited – Stephenson v Delphi Diesel Systems Ltd EAT 11-Nov-2002
The applicant was an agency worker with an employment agency.
Held: The end-user was under no legal obligation to pay the applicant and the applicant was under no legal obligation to work for the end-user. Control over the applicant by the . .
Cited – Costain Building and Civil Engineering Ltd v Smith, Chanton Group Plc EAT 29-Nov-1999
EAT Contract of Employment – Breach of Contract . .

Cited by:

Approved – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – RSA Consulting Ltd v Evans CA 23-Jul-2010
The respondent worked as a consultant for the appellant through an intermediary agency. When the arrangement was terminated, she had made a claim alleging an unauthorised deduction from her wages in repect of a contractual period of one month’s . .
Cited – James v Greenwich Council EAT 18-Dec-2006
james_greenwichEAT06
EAT Contract of Employment – Definition of employee
The Appellant was supplied by an agency to carry out work for Greenwich Council. She had no express contract with the Council but she contended that there . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.194120

The fact that a pension scheme cannot be amended to allow something to be done does not necessarily mean that a limited power to do that thing does not already exist within the scheme.

Citations:

[1989] 1 PLR 31

Jurisdiction:

England and Wales

Cited by:

Cited – National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others HL 7-Jun-2001
The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.191150

EAT Victimisation Discrimination: Dismissal – Whether the Employment Tribunal’s determination that dismissal was not automatically unfair under section 103A Employment Rights Act 1996 because the person who decided to dismiss was misled by the Claimant’s line manager (to whom she had made a protected disclosure) who engineered her dismissal because she had done so was sustainable. It was not.

Judges:

Mitting J

Citations:

[2016] UKEAT 0020 – 16 – 1905, [2016] ICR 1043, [2016] IRLR 854

Links:

Bailii

Statutes:

Employment Rights Act 1996 103A

Jurisdiction:

England and Wales

Cited by:

See Also – Jhuti v Royal Mail Group Ltd and Others EAT 31-Jul-2017
EAT (Practice and Procedure) 1. While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order . .
At EAT (1) – Royal Mail Ltd v Jhuti CA 20-Oct-2017
The employee complained of her dismissal having made protected disclosures. The company said that the dismissal was for reasons of inadequate work.
Held: The company’s appeal succeeded. Subject to possible qualifications said to be irrelevant . .
At EAT (1) – Royal Mail Group Ltd v Jhuti EAT 19-Mar-2018
Practice and Procedure
The appeal and cross-appeal challenge
(i) whether the detriment claims are in time in circumstances where the grievance detriment claim failed; and
(ii) whether the grievance detriment claim was wrongly . .
At EAT (1) – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.566914

Underhill LJ referred to a situation in which the decision-maker’s beliefs had ‘been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation’. ‘For short,’ Underhill LJ had added, ‘an Iago situation’. He had proceeded: ‘[Counsel] accepted that in such a case the motivation of the manipulator could in principle be attributed to the employer, at least where he was a manager with some responsibility for the investigation; and for my part I think that must be correct.’

Judges:

Laws, Ryder, Underhill LJJ

Citations:

[2014] EWCA Civ 658

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At EAT (1) – The Co-operative Group Ltd v Baddeley (Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason) EAT 11-Jul-2013
EAT UNFAIR DISMISSAL – Reason for dismissal
Tribunal expressing itself in unusually robust language – whether tribunal substituted its own view of what employee had done for that of employer – whether . .
Appeal from – The Co-Operative Group Ltd v Baddeley EAT 15-Nov-2013
EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other . .

Cited by:

Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.525618

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other

Judges:

Keith J

Citations:

[2013] UKEAT 0415 – 12 – 1511

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – The Co-operative Group Ltd v Baddeley (Unfair Dismissal : Reason for Dismissal Including Substantial Other Reason) EAT 11-Jul-2013
EAT UNFAIR DISMISSAL – Reason for dismissal
Tribunal expressing itself in unusually robust language – whether tribunal substituted its own view of what employee had done for that of employer – whether . .

Cited by:

Appeal from – The Co-Operative Group Ltd v Baddeley CA 15-May-2014
Underhill LJ referred to a situation in which the decision-maker’s beliefs had ‘been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation’. ‘For short,’ Underhill LJ had added, ‘an Iago situation’. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 September 2022; Ref: scu.518538

EAT UNFAIR DISMISSAL – Reason for dismissal
Tribunal expressing itself in unusually robust language – whether tribunal substituted its own view of what employee had done for that of employer – whether tribunal gave sufficient reasons for its findings of fact – whether tribunal gave any reasons for its finding that disclosures made by employee were protected disclosures.

Judges:

Keith J

Citations:

[2013] UKEAT 0415 – 12 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – The Co-Operative Group Ltd v Baddeley EAT 15-Nov-2013
EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other . .
At EAT (1) – The Co-Operative Group Ltd v Baddeley CA 15-May-2014
Underhill LJ referred to a situation in which the decision-maker’s beliefs had ‘been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation’. ‘For short,’ Underhill LJ had added, ‘an Iago situation’. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 September 2022; Ref: scu.514173

Challenge to decision as to union recognition

Judges:

Lord Justice Bean

Citations:

[2021] EWCA Civ 260

Links:

Bailii, Judiciary

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 10 September 2022; Ref: scu.658969

Judges:

Stephens LJ, Treacy LJ and O’Hara J

Citations:

[2019] NICA 32

Links:

Bailii

Statutes:

Working Time Regulations (Northern Ireland) 1998

Jurisdiction:

Northern Ireland

Employment

Updated: 10 September 2022; Ref: scu.644089

The appellant challenged rejection of his claim of unfair dismissal and a finding that he had been made redundant.

Judges:

Stephenson, O’Connor LJJ, Sir Denys Buckley

Citations:

[1984] EWCA Civ 12, [1984] IRLR 271, [1985] ICR 80

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Employment

Updated: 10 September 2022; Ref: scu.510899

The employee was involved in offensive and insubordinate behaviour with his team leader. He was dismissed by a more senior manager, after a hearing in which the first manager gave evidence but which the claimant did not attend. It was later shown that the insubordination had been in response to unreasonable conduct from the manager, and to a racist comment made by him; but that had not come out in the evidence available to the decision-taker. He claimed unfair dismissal and racial discrimination. The tribunal allowed the discrimination claim, but found the dismissal to be fair, on the basis that decision maker acted reasonably on the basis of the information available to him. The court was now asked whether an employer, when considering dismissal of an employee for misconduct, is to be taken to know exculpatory facts which are known to the employee’s manager but are withheld from the decision-maker.
Held: (Sedley LJ dissenting) The appeal failed. The employer in this context was the decision maker,
Moore-Bick LJ said that it was well-established that the exercise required by section 98(4) depends on what the employer reasonably believes, on the basis of what it reasonably knows, about the relevant matters: ‘Since belief involves a state of mind, it is necessary, as Lord Hoffmann said, to determine whose state of mind was for this purpose intended to count as the state of mind of the employing company or organisation.’
Parliament must have appreciated that in the case of an organisation of any size the power of dismissal would be exercised not at the top of the organisation but by a duly authorised and appropriately skilled person at a lower level: ‘The answer to the question ‘Whose knowledge or state of mind was for this purpose intended to count as the knowledge or state of mind of the employer?’ will be ‘The person who was deputed to carry out the employer’s functions under section 98′.’ The decision maker should not have the responsibility for discovering matters he could not reasonably acquired through the appropriate disciplinary procedure.
Sedley LJ dissented from the dismissal of Mr Orr’s appeal, holding that the officer appointed to decide whether an employee should be dismissed: ‘has to be taken to know not only those things which he or she ought to know but any other relevant facts the employer actually knows [including] facts known to persons who in some realistic and identifiable way represent the employer in its relations with the employee concerned. If, as would seem inescapable, relevant things known to a chief executive must be taken to be known to both the corporation and its decision-maker, the same is likely to be the case as the chain of responsibility descends. It is equally likely not to be the case when one reaches the level of fellow employees or those in more senior but unrelated posts.’

Judges:

Sedley, Mooe-Bick, Aikens LLJ

Citations:

[2011] EWCA Civ 62, [2011] ICR 704, [2011] IRLR 317, [2011] 4 All ER 1256

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .

Cited by:

Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.428365

Citations:

[1837] EngR 369, (1837) 6 Ad and E 130, (1837) 112 ER 50

Links:

Commonlii

Jurisdiction:

England and Wales

Employment

Updated: 09 September 2022; Ref: scu.313486

Sir John Brightman said that a court, asked about whether an out if time claim could have been presented in time, should read the word ‘practicable’ as the equivalent of ‘feasible’ and ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the tribunal within the relevant three months?’

Judges:

Sir John Brightman

Citations:

[1973] ICR 437

Jurisdiction:

England and Wales

Cited by:

Cited – The Royal Bank of Scotland Plc v Theobald EAT 10-Jan-2007
EAT Claim for unfair dismissal not presented timeously, within three months, but was presented thirteen days thereafter. During most of the three month period, the Claimant had an outstanding appeal process . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.383830

Citations:

[1844] EngR 228, (1844) 5 QB 662, (1844) 114 ER 1398

Links:

Commonlii

Jurisdiction:

England and Wales

Employment

Updated: 09 September 2022; Ref: scu.304820

EAT Unfair Dismissal – Automatically unfair reasons
Public Interest Disclosure
Section 103A of the Employment Rights Act 1996 inadmissible reason for dismissal – burden of proof – whether Protected Disclosures – case remitted to same Employment Tribunal for further consideration.

Judges:

His Honour Judge Clark

Citations:

[2007] UKEAT 0516 – 06 – 0203, UKEAT/0516/06, [2007] ICR 945, [2007] IRLR 309

Links:

Bailii, EATn

Statutes:

Employment Rights Act 1996 103A

Jurisdiction:

England and Wales

Citing:

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 . .

Cited by:

Appeal from – Kuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
Cited – Ross v Eddie Stobart Ltd (Unfair Dismissal : Automatically Unfair Reasons) EAT 8-Aug-2013
EAT UNFAIR DISMISSAL – Automatically unfair reasons
Burden of proving the ‘whistleblowing’ reason for dismissal under s.103A Employment Rights Act 1996 lies on the employee who has insufficient continuous . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.249627

The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and the employer’s succeeded. It was wrong to draw parallels with prohibited grounds reasons and unfair dismissal claims.
A burden lay on an employee claiming unfair dismissal under the section to produce some evidence that the reason for the dismissal was that she had made a protected disclosure but that, once she had discharged that evidential burden, the legal burden lay on the employer to establish the contrary: ‘when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.
Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.
The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was.
If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.’ The ET had applied the law correctly. The employer had done enough successfully to contest the assertion of a prohibited reason.
Mummery LJ said: ‘Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs the risk of complicating rather than clarifying the legal concepts.’

Judges:

Mummery LJ, Arden LJ, Longmore LJ

Citations:

[2008] EWCA Civ 380, [2008] ICR 799, [2008] IRLR 530

Links:

Bailii

Statutes:

Employment Rights Act 1996 103A

Jurisdiction:

England and Wales

Citing:

Appeal from – Dr Kuzel v Roche Products Ltd EAT 2-Mar-2007
EAT Unfair Dismissal – Automatically unfair reasons
Public Interest Disclosure
Section 103A of the Employment Rights Act 1996 inadmissible reason for dismissal – burden of proof – whether Protected . .
Cited – Smith v Hayle Town Council CA 1978
In a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal, the court considered the allocation of the burden of proof in employment cases.
Held: The burden is upon he who is seeking to rely . .
Cited – Maund v Penwith District Council CA 1984
The employee alleged that he had been dismissed for trade Union activities. The Industrial Tribunal held that he had the burden of proving that. The EAT disagreed.
Held: The appeal against the decision of the EAT failed.
Griffiths LJ . .

Cited by:

Cited – Whitelock and Storr and Others v Khan EAT 26-Oct-2010
EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
Tribunal failed to apply guidance in Kuzel v Roche Products Ltd [2008] IRLR 530 in failing to consider employer’s reason . .
Cited – El-Megrisi v Azad University (Ir) In Oxford EAT 5-May-2009
EAT VICTIMISATION DISCRIMINATION: Whistleblowing
Appellant raised concerns with employer about immigration status of staff and students, and other alleged irregularities – Dismissed shortly afterwards – . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – Ross v Eddie Stobart Ltd (Unfair Dismissal : Automatically Unfair Reasons) EAT 8-Aug-2013
EAT UNFAIR DISMISSAL – Automatically unfair reasons
Burden of proving the ‘whistleblowing’ reason for dismissal under s.103A Employment Rights Act 1996 lies on the employee who has insufficient continuous . .
Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Cited – B v John Reid and Sons (Strucsteel) Ltd EAT 21-May-2015
EAT Unfair Dismissal: Automatically Unfair Reasons – Automatic Unfair Dismissal – Section 100(1)(e) Employment Rights Act 1996 – Applying the two-stage approach laid down by the EAT in Oudahar v Esporta Group Ltd . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.266958

Citations:

[2001] EWCA Civ 2004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 September 2022; Ref: scu.218686

Citations:

[2006] EWCA Civ 689

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Chouafi v London United Busways Ltd EAT 11-May-2005
EAT Time Limits – Just and equitable extension. Employment Tribunal correct in finding that the evidence before it did not explain why the Claimant had not made an application for unfair dismissal and disability . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.242276

All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal appeal, even post-termination, is relevant.
An employer may be considered to have acted unfairly if he refuses to permit the employee to pursue a right of appeal.
Lord Bridge of Harwich said: ‘Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment. To separate them and consider only one half of the process . . is to introduce an unnecessary artificiality.’ After considering the Savage case, Lord Bridge said: ‘Adopting the analysis which found favour in J Sainsbury Ltd v Savage, [1981] ICR I, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, sc the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other.’

Judges:

Lord Bridge of Harwich

Citations:

[1986] ICR 192, [1986] 1 All ER 513

Jurisdiction:

England and Wales

Citing:

Approved – Savage v J Sainsbury Ltd CA 1980
Brightman LJ discussed the effect on time requirements of an employee’s appeal against the employers decision to dismiss him: ‘The matter came before the Employment Appeal Tribunal with commendable expedition on 4.10.78. Judgment was reserved until . .
Cited – Post Office v Crouch 1974
Lord Reid said that that statutory provisions for claims for unfair dismissal ‘must be construed in a broad and reasonable way so that legal technicalities shall not prevail against industrial realities and common sense’
The idea of . .

Cited by:

Cited – Gate Gourmet v J B Jangra EAT 12-Dec-2000
EAT Unfair Dismissal – Other
The employer appealed a finding of unfair dismissal and disability discrimination. She suffered an apparently minor injury, but which led to long standing disability with varying . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – Prakash v Wolverhampton City Council EAT 1-Sep-2006
EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He . .
Cited – Prakash v Wolverhampton City Council EAT 1-Sep-2006
EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He . .
Cited – First Hampshire and Dorset Ltd v Parhar EAT 10-May-2012
parharEAT2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Ill health capability dismissal. Section 98(4) Employment Rights Act 1996 reasonableness judged by Employment Tribunal only as at EDT; ET ought to have . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.181803

Judges:

Mr Justice Martin Spencer

Citations:

[2019] EWHC 2239 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Costs – Rashid v Oil Companies International Marine Forum (Costs) QBD 16-Aug-2019
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 September 2022; Ref: scu.642128