Mr Justice Martin Spencer
[2019] EWHC 2239 (QB)
England and Wales
Costs – Rashid v Oil Companies International Marine Forum (Costs) QBD 16-Aug-2019
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2022; Ref: scu.642128
EAT PRACTICE AND PROCEDURE – Chairman alone
This claim of unfair dismissal for asserting a statutory right was determined, in error by an Employment Judge sitting alone. Section 4 (1) Employment Tribunals Act 1996 applies.
Appeal allowed and case remitted to be determined by a three member Tribunal.
[2011] UKEAT 0365 – 10 – 2303
England and Wales
Updated: 08 September 2022; Ref: scu.434904
EAT VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE – Costs
R1, C’s former academic supervisor, declines to give her a reference – C brings victimisation claim on basis that he knew, and was motivated by the fact, that she had previously brought a sex discrimination claim against the University, R2 – He denies knowledge of the previous claim – Tribunal invited to draw inferences from what are said to be evasive answers to statutory questionnaire
Tribunal dismisses claim, accepting that R1 had no knowledge of the previous proceedings and not drawing inferences from the answers to questionnaire – Costs awarded
Held, dismissing appeal:
(1) Tribunal entitled to dismiss claim – Answers to questionnaire did not justify inference of discrimination
(2) Tribunal entitled to award costs – Claim had been misconceived from the start, since there was no evidence supporting C’s suspicions, and a deposit order had been made
Underhill P J
[2010] UKEAT 0283 – 10 – 2004
England and Wales
Updated: 08 September 2022; Ref: scu.434908
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.
Slade J
[2011] UKEAT 0254 – 10 – 0605
Employment Rights Act 1996 47B
England and Wales
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 September 2022; Ref: scu.434912
EAT UNFAIR DISMISSAL – Compensation
The decisions to apportion compensation, not to award any future loss after April 2008 and to apply an ‘uplift’ of 25% in respect of breach of statutory procedures were neither irrational, nor without evidential foundation nor based on any misdirection and the appeal would be dismissed.
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Although this was a ‘narrative’ judgment sufficient substance could be extracted from the decision to demonstrate compliance with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No. 1861; Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240, [2007] IRLR 63 and Greenwood v NWF Retail Ltd UKEAT/0409/09 applied.
Discretion would not be exercised in favour of allowing a new point to be raised by the cross appeal.
Hand J
[2011] UKEAT 0090 – 10 – 0505
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
England and Wales
Cited – Balfour Beatty Power Networks Ltd Interserve Industrial Services Ltd v C Wilcox and 6 others A Seymour and 18 others I M Realisation Ltd (In Administration) EAT 2-Nov-2005
EAT Transfer of Undertakings: Consultation and Other Information; Transfer
Practice and Procedure: Appellate Jurisdiction
Nature of ‘undertaking’ for the purposes of TUPE: could there be a stable . .
Cited – Greenwood v NWF Retail Ltd EAT 18-Feb-2011
EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
An Employment Tribunal decision must comply in both form and substance with 30(6) of the Employment Tribunals (Constitution and Rules . .
Cited – Sivagnansundarum v Whipps Cross University Hospital NHS Trust EAT 28-Jun-2011
EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Although this was a ‘narrative’ judgment sufficient substance could be extracted from the decision to demonstrate compliance with rule . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 September 2022; Ref: scu.434911
EAT UNFAIR DISMISSAL – Polkey deduction
A dismissed R for gross misconduct. It was alleged that he tried to strike a director of A during an investigation that A was conducting into a road accident involving R as a driver of one of A’s vehicles (his 6th in 4 months). ET held that R did not attempt to strike A and therefore no Polkey deduction point arose. A had specifically raised the point that (assault or not) R would have inevitably have been dismissed as a result of his driving record. Remitted to ET to consider deduction point.
[2011] UKEAT 0469 – 10 – 2803
England and Wales
Updated: 08 September 2022; Ref: scu.434907
EAT UNFAIR DISMISSAL
Polkey deduction
Reason for dismissal including substantial other reason
The ET did not err in holding that the Claimant would have been dismissed because of the Respondent’s view that it could not continue to employ her in any event given the uncertainty in her immigration status. It was not necessary for the Employment Tribunal or the EAT to decide that, a matter for the specialist agency and tribunals.
There was no challenge to the finding of unfair dismissal.
Polkey correctly applied. By consent the appeal was allowed in part as the ET did not award her compensation for the week it would have taken to organise a proper hearing, and in failing to award her compensation for unlawful suspension and dismissal without notice.
McMullen QC J
[2011] UKEAT 0524 – 10 – 2203
England and Wales
Updated: 08 September 2022; Ref: scu.434905
EAT PRACTICE AND PROCEDURE – Costs
UNFAIR DISMISSAL – Compensation
1. Compensation. It is argued, in reliance on Melia v Magna Kansei Ltd [2006] ICR 410, that the Employment Tribunal should have made an allowance for delay in payment of loss of earnings. This was, however, not argued below and no evidential foundation was laid for the making of such an award. This ground of appeal was dismissed.
2. Costs. The Tribunal awarded costs in the sum of andpound;250 against the successful Claimant by reason of the conduct of her representative. There was no sufficient basis for the award in the reasons given by the Tribunal. The award is set aside.
Richardson J
[2011] UKEAT 0260 – 10 – 0504
England and Wales
Updated: 08 September 2022; Ref: scu.434909
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
S.98A(2) Employment Rights Act 1996
The new Employment Tribunal on remission from the EAT correctly found the Claimants were unfairly dismissed for redundancy. It correctly construed s 98A(2) as not applicable where the Respondent failed to complete Step 2 of the SDDP: Davies applied.
McMullen QC J
[2011] UKEAT 0407 – 10 – 2104
Employment Rights Act 1996 98A(2)
England and Wales
Updated: 08 September 2022; Ref: scu.434910
EAT RACE DISCRIMINATION – Burden of proof
PRACTICE AND PROCEDURE – Review
The Claimant alleged race and religious discrimination, harassment on racial and religious grounds and victimisation against the Respondent in respect of her treatment on a training course. The ET dismissed all but one of her claims of direct race discrimination but held in relation to one matter the onus of proof had been transferred to the Respondent and he had not discharged it. In addition the ET made a finding of unlawful race and religious discrimination by victimisation in relation to another complaint. On review the ET set aside the finding of victimisation on the basis that the claim had never been made as a claim in victimisation. The Respondent appealed against the finding of race discrimination and the Claimant against the decision on review.
Held: the ET’s judgment was not Meek-compliant but in any event the onus of proof had not been transferred to the Respondent and the review decision was correct. Respondent’s appeal allowed and Claimant’s appeal dismissed.
Reid QC J
[2011] UKEAT 0320 – 10 – 1804
England and Wales
Updated: 08 September 2022; Ref: scu.434902
EAT RACE DISCRIMINATION – Burden of proof
PRACTICE AND PROCEDURE – Review
The Claimant alleged race and religious discrimination, harassment on racial and religious grounds and victimisation against the Respondent in respect of her treatment on a training course. The ET dismissed all but one of her claims of direct race discrimination but held in relation to one matter the onus of proof had been transferred to the Respondent and he had not discharged it. In addition the ET made a finding of unlawful race and religious discrimination by victimisation in relation to another complaint. On review the ET set aside the finding of victimisation on the basis that the claim had never been made as a claim in victimisation. The Respondent appealed against the finding of race discrimination and the Claimant against the decision on review.
Held: the ET’s judgment was not Meek-compliant but in any event the onus of proof had not been transferred to the Respondent and the review decision was correct. Respondent’s appeal allowed and Claimant’s appeal dismissed.
Reid QC J
[2011] UKEAT 0406 – 09 – 1804
England and Wales
Updated: 08 September 2022; Ref: scu.434901
EAT PRACTICE AND PROCEDURE – Amendment
Appeal against Employment Judge grant of permission to amend Form ET1 to add claims under Disability Discrimination Act to complaint of constructive unfair dismissal.
Appeal allowed in part. Employment Tribunal order varied.
Peter Clark J
[2011] UKEAT 0046 – 11 – 3003
England and Wales
Updated: 08 September 2022; Ref: scu.434906
EAT PRACTICE AND PROCEDURE – Costs
An appeal by the Respondent employers against the Tribunal’s decision that no order for costs should be made against the Claimant, her claims of detriment on the ground of protected disclosures and constructive unfair dismissal having all been dismissed after a hearing lasting some 12 days.
No error of law was disclosed in the Tribunal’s reasoning and the perversity challenge failed. Appeal dismissed.
[2011] UKEAT 0477 – 10 – 2303
England and Wales
Updated: 08 September 2022; Ref: scu.434903
Pill, Rix, Lloyd LJJ
[2011] EWCA Civ 494
England and Wales
Updated: 08 September 2022; Ref: scu.434838
[2003] EWCA Civ 1991
England and Wales
Updated: 08 September 2022; Ref: scu.425377
[2000] UKEAT 341 – 00 – 1611
England and Wales
See Also – Clarke v Arriva Kent Thameside Ltd EAT 25-Jul-2001
The appellant claimed that the single member EAT was, in his case, improperly constituted. The chairman, deciding whether to sit alone, must first see if the proposed hearing met the qualifying conditions, and if it did, must then assess look to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.265644
[2000] UKEAT 941 – 00 – 0812
England and Wales
See Also – Simpson v Kensington Housing Trust EAT 5-Oct-2001
EAT Maternity Rights and Parental Leave . .
See Also – Simpson v Kensington Housing Trust CA 30-Jan-2002
. .
See Also – Simpson v Kensington Housing Trust CA 12-Mar-2002
Application for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.265900
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making a protected disclosure, but after having left the company. The company said that the Act did not protect her once she had left their employment.
Held: The decision in Fadipe could not stand alongside the Lords’ decision in Rhys-Harper. Four Acts sought to protect employees against victimisation, and it would be inconsistent to assume with no other reason that one kind of victimisation was given a post employment remedy but not another. The whistle blowing employee must be given protection after leaving the employment: ‘The public interest, which led to the demand for this Act to protect individuals who make certain disclosures of information in the public interest and to give them an action in respect of that victimisation, would surely be sold short by allowing the former employer to victimise his former employee with impunity. It simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can. If it is in the public interest to blow the whistle, and the Act shows that it is, then he who blows the whistle should be protected when he becomes victimised for doing so, whenever the retribution is exacted. ‘
Lord Justice Ward, Maurice Kay LJ, Wilson LJ
[2006] EWCA Civ 822, Times 11-Jul-2006, [2006] 4 All ER 1209, [2006] IRLR 677, [2006] ICR 1436
Employment Rights Act 1996 47(B)
England and Wales
Cited – Fadipe v Reed Nursing Personell CA 4-Dec-2001
Failure to give proper reference. ECJ judgment giving right to make complaint only if cause was result of complaint over health and safety matters.
Held: The appeal failed. The section did not protect former workers: ‘section 44 does not, on . .
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
See Also – Woodward v Abbey National Plc EAT 18-Jun-2004
EAT Practice and Procedure – Amendment – Application for leave to amend IT1. Respondent opposes. Leave to amend given in some respects and refused in others. Lack of adequate reasons for the decision. Remitted to . .
See Also – Diana Woodward v Abbey National Plc EAT 20-Jul-2005
EAT Public Interest Disclosure
Claimant claims that some years after the termination of her employment, she was caused detriment by her ex-employers due to having been a whistleblower, and makes claims . .
Cited – Wilson v Chatterton CA 1946
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision ‘being inconsistent with general principles laid down by the House of Lords . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Wilson v Chatterton CA 1946
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision ‘being inconsistent with general principles laid down by the House of Lords . .
Cited – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Cited – Cumbria County Council v Carlisle-Morgan EAT 29-Jan-2007
EAT A employed R as a support worker. R made a number of protected disclosures relating to a fellow worker’s conduct towards a client. The ET held various detriments were suffered by R on the ground of the . .
Cited – Rank Nemo (DMS) Ltd and Others v Coutinho CA 20-May-2009
The claimant had succeeded in a claim for discrimination and registered it for enforcement, but it had still not been paid.
Held: Although the Employment Tribunal had no role in enforing its own decisions, the claimant could return to the . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.242671
[2006] EWCA Civ 627
England and Wales
Updated: 07 September 2022; Ref: scu.241767
EAT The issues were (i) whether the employment tribunal misdirected itself in concluding that the dismissal was unfair on merely procedural grounds, (ii) whether it misdirected itself in concluding that, had a fair procedure been adopted, the appellant would have been fairly dismissed anyway, and (iii) whether it misdirected itself in concluding that the appellant caused or contributed to her dismissal to the extent of 100%.
The Honourable Mr Justice Rimer
[2004] UKEAT 0737 – 04 – 1312, UKEAT/0737/04
England and Wales
Updated: 07 September 2022; Ref: scu.228680
Application for permission to appeal. Appellant not attending.
Mummery LJ
[2002] EWCA Civ 1454
England and Wales
Updated: 07 September 2022; Ref: scu.217556
[1996] UKEAT 313 – 96 – 0910
England and Wales
Updated: 07 September 2022; Ref: scu.208587
[2001] UKEAT 1212 – 00 – 0703
England and Wales
Updated: 07 September 2022; Ref: scu.203630
The EAT remitted a case to the Employment tribunal and stressed the importance of determining, as between alleged incidents of discrimination on different dates, when the act of discrimination ‘crystallized’.
Wood J
[1991] UKEAT 605 – 89 – 2409, [1992] ICR 312
England and Wales
Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.211263
[1999] UKEAT 97 – 99 – 2303
England and Wales
Updated: 07 September 2022; Ref: scu.204928
[1999] UKEAT 189 – 98 – 1002
England and Wales
Updated: 07 September 2022; Ref: scu.204856
[1998] UKEAT 860 – 97 – 1707
England and Wales
Updated: 07 September 2022; Ref: scu.206619
The appellant claimed that the single member EAT was, in his case, improperly constituted. The chairman, deciding whether to sit alone, must first see if the proposed hearing met the qualifying conditions, and if it did, must then assess look to the statutory criteria to exercise his discretion to refer the matter to a full tribunal. In this case the matter clearly showed a substantial difference as to fact, and the tribunal had erred in neither giving reasons for the allocation, nor inviting the parties to consider it. In this case the reasons given by the tribunal chairman for its finding were contradictory and inadequate. The appeal succeeded on this basis also.
EAT Procedural Issues – Employment Appeal Tribunal.
The Honourable Mr Justice Douglas Brown
EAT/0341/00, [2001] UKEAT 0341 – 00 – 2507
Employment Tribunal Act 1996 4(1)
England and Wales
See Also – Clarke v Arriva Kent Thameside Ltd EAT 16-Nov-2000
. .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.204053
[2002] UKEAT 0919 – 02 – 1811
England and Wales
See Also – Hussain v Century Electronics UK Inc Ltd EAT 14-May-2003
EAT Unfair Dismissal – Compensation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.203228
[2002] EWCA Civ 681
England and Wales
Updated: 07 September 2022; Ref: scu.217060
[2002] UKEAT 0819 – 02 – 0411
England and Wales
See All – Odong v Chubb Security Personnel EAT 13-May-2003
EAT Public Interest Disclosure . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.203246
There was no reason in principle why the work carried out by a single person could not itself be a sufficient ‘stable economic entity’ to generate protection under the Regulations.
[2003] IRLR 260, Gazette 10-Jul-2003
Transfer of Undertakings (Protection of Employment) Regulations 1981
England and Wales
Updated: 07 September 2022; Ref: scu.186309
[2004] EWCA Civ 204, [2005] IRLR 196
England and Wales
Updated: 07 September 2022; Ref: scu.194128
EAT Unfair Dismissal – Compensation.
Mr Recorder Luba QC
[2003] EAT 0919 – 02 – 1405, [2003] UKEAT 0919 – 02 – 1405, EAT/919/02
England and Wales
See Also – Hussain v Century Electronics UK Inc Ltd EAT 18-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.191578
Practice and Procedure – Case Management
The Appellant (‘A’) appealed against a decision of the Employment Tribunal (‘the ET’) about the correct interpretation of a list of issues for a Full Hearing. A contended that the ET had wrongly interpreted the list of issues, and, as a result, had wrongly refused to hear some of her claims at the Full Hearing.
The factual basis of the claims which the ET decided not hear was the same as the factual basis of some of the claims which it did hear. It dismissed all A’s claims after the Full Hearing. She did not appeal against the decision of the ET after the Full Hearing.
The Employment Appeal Tribunal (‘the EAT’) held that the ET had erred in law in wrongly interpreting the list of issues, and that, on its proper interpretation, it included claims which the ET had refused to hear. The EAT held that the error of law was immaterial and dismissed the appeal.
A applied for a review of the EAT’s decision. The EAT allowed the application, holding that it should have allowed the appeal, rather than dismissing it. It declined to remit the case to the ET, however, on the ground that the error of law was immaterial.
[2019] UKEAT 0268 – 14 – 1206
England and Wales
Updated: 07 September 2022; Ref: scu.643076
[2019] EWCA Civ 1663
England and Wales
Updated: 07 September 2022; Ref: scu.642653
VICTIMISATION DISCRIMINATION – Protected disclosure
PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Court of Appeal had remitted back to the Tribunal the issue of a Chagger claim for damages for stigma loss, following the termination of the Appellant’s contract as a worker after raising asbestos issues which had constituted a detriment under s.47B Employment Rights Act 1996 (Small v The Shrewsbury and Telford Hospitals NHS Trust [2017] EWCA Civ 882). The ET had not awarded any future loss beyond 13 November 2013, the period when it found that the Appellant would no longer have been engaged by the Respondent in any event. But the Court of Appeal found that it had been incumbent on the Tribunal to consider the possibility of stigma damages in light of the Tribunal’s findings that the effect of the Appellant’s disclosure had been ‘career ending’ for him. The Court of Appeal had expressly permitted the parties to adduce new evidence and advance new arguments at the Tribunal at the hearing of the remitted issue.
The Appellant sought to restrict the evidence before the Tribunal and challenge a third party discovery order made by the Tribunal in respect of the period prior to 13 November 2013, on the grounds that in making the order the Tribunal had exceeded the scope of the remission back by the Court of Appeal. His contention was that the evidence should be restricted to his job search post 13 November 2013.
The appeal was dismissed. The Tribunal has not sought to exceed its jurisdiction and go beyond the scope of the matter remitted to it by the Court of Appeal in making its order. It will be relevant to the consideration of stigma damages to explore his job seeking efforts and reasons for lack of success in the period both prior to, and post, the date that the Tribunal found he would have had his contract terminated by the Respondent if he had not made the protected disclosures. Those issues have not yet been considered by the Tribunal and are different to the general mitigation issues considered in its original remedy decision.
[2019] UKEAT 0077 – 19 – 1908
England and Wales
Updated: 07 September 2022; Ref: scu.642762
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human rights.
Held: (i) where there is a breach of a right afforded under EU law, article 47 of the Charter is engaged; (ii) the right to an effective remedy for breach of EU law rights provided for by article 47 embodies a general principle of EU law; (iii) (subject to exceptions which have no application in the present case) that general principle has horizontal effect; (iv) in so far as a provision of national law conflicts with the requirement for an effective remedy in article 47, the domestic courts can and must disapply the conflicting provision; and (v) the only exception to (iv) is that the court may be required to apply a conflicting domestic provision where the court would otherwise have to redesign the fabric of the legislative scheme.’
It was ‘questionable’ whether article 11 of the draft articles was in fact a definitive statement of customary international law in embassy employment disputes.
Lord Dyson MR, Arden, Lloyd Jones LJJ
[2015] EWCA Civ 33, [2016] QB 347, [2015] 3 WLR 301, [2015] IRLR 301, [2016] 1 All ER 816, [2015] 2 CMLR 20, [2015] WLR(D) 83, [2015] HRLR 3, [2015] ICR 793
State Immunity Act 1978, European Convention on Human Rights 6, Charter of Fundamental Rights of the European Union 47
England and Wales
At EAT – Benkharbouche v Embassy of The Republic of Sudan (Jurisdictional Points : State Immunity) EAT 4-Oct-2013
EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
At CA – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.542260
Statement of Facts and questions to the parties
48420/10, [2011] ECHR 738
European Convention on Human Rights
Human Rights
At CA – Eweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
At EAT – Eweida v British Airways Plc EAT 20-Nov-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions . .
At CA (Costs) – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .
Statement of Facts – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Statement of Facts – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
ECHR Article 9-1
Manifest religion or belief
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.433639
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other information. She had obtained employment with a customer of the claimant, and was said to carry out a similar managerial role in which she would make use of the financial and associated information she carried forward. The order sought was unlimited in time, did not specify what information was to be protected and went beyond any contractual obligation.
Held: The interim injunction was refused. The application gave the appearance of the claimant not intending to take the matter to any final hearing, but rather to resolve the issues on a more comfortable (for it) interim assessment. They had delayed in serving particulars and gave no fixed commitment to service of them. It was an abuse.
The clause on which the claimants based their case was too widely drawn including matters in which no confidence existed, and matters which an employee would carry in her head and be bound to be allowed to use. The order sought was also too widely drawn, in particular in having no time limit. Nor was there any evidence that the defendant had acted with any impropriety.
Tugendhat J discussed whether an employee could be said to be a fiduciary: ‘an employee may be a fiduciary in respect of specific property or confidential information entrusted to her care, even if her level of responsibility in the business is at the most junior level. This step in the argument for CLS is a strong one. I would also accept that there may be cases where an employee is in a relationship with her employer which is analogous to that of a trustee to a beneficiary, a parent to a child, or a solicitor to her client. But that is not the normal relationship between an employee and employer in the business context which was under consideration in all the employment cases referred to above (except Barker which was a case of domestic employment). In the normal employment relationship the balance of power is the opposite of that referred to in the examples given in Erlanger: it is the employer which is the dominant party.’
Tugendhat J
[2011] EWHC 3154 (QB)
England and Wales
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Herbert Morris Ltd v Saxelby HL 1916
For a covenant in restraint of trade to be treated as reasonable in the interests of the parties ‘it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed.’ There is a need for the court to consider . .
Cited – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .
Cited – Lansing Linde v Kerr CA 1991
Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the . .
Cited – Mont v Mills 1993
Simon Brown LJ said: ‘I cannot accept that the law’s only concern underlying the doctrine of restraint of trade is to ensure that employees can earn their living . . If this were so, such restraints could always be purchased outright and yet the . .
Cited – Ocular Sciences Ltd v Aspect Vision Care Ltd ChD 11-Nov-1996
The freedom for a claimant in registered design right to frame his claim, as to whether he asserts an infringement of the entire design, or limits it to the section infringed, is important.
Laddie J said: ‘This means that the proprietor can . .
Cited – Roger Bullivant Ltd v Ellis CA 1987
The plaintiffs sought various remedies against an ex-employee who had set up a company in competition with the plaintiffs. One was for breach of confidence in respect of a card index of customer contacts, a copy of which the first defendant had . .
Cited – Frisbee v Campbell CA 14-Oct-2002
The claimant sought an account against her former employee for the disclosures made by her of their activities. The respondent had signed a confidentiality agreement. The respondent counterclaimed for assault. She now appealed from dismissal of her . .
Cited – United Pan-Europe Communications N V v Deutsche Bank Ag CA 19-May-2000
The claimant sought to prevent the misuse of what it said was its confidential information, identifying it by reference to specific documents in which it was said to be recorded.
Held: That was a sufficient description because the defendant . .
Cited – Attorney General v Barker CA 1990
A claim was made for an injunction to enforce an express covenant in a contract of employment by a member of the Royal Household by which he undertook (amongst other things) not to publish any information concerning a member of the family which came . .
Cited – Lock International plc v Beswick ChD 1989
Where the claimant seeks to prevent a former employee using some but not all information obtained during his employment, the employer must be specific as to the range of what is to be protected.
Hoffmann J said: ‘Some employers seem to regard . .
Cited – Littlewoods Organisations Ltd v Harris CA 1977
When construing restrictive covenants in an employment contract, the court should construe the contract in the light of the object and intent of the contract as a whole. It may be read down and need not be read literally. Lord Denning said that it . .
Cited – Erlanger v New Sombrero Phosphate Company HL 31-Jul-1878
Rescission needs Restitutio in Integrum
A syndicate, of which Erlanger (Orse Erlinger) was the head, purchased from an insolvent company an island, said to contain valuable mines of phosphates. Erlanger, who managed the purchase, prepared to get up a company to take over the island and . .
Cited – Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd ChD 7-Mar-2011
The parties disputed the expert evidence to be admitted at a forthcoming trial. The claimant opposed the use of a particular expert witness who had had access to its confidential and privileged information and should not be allowed to act for the . .
Cited – Dyson Technology Ltd v Strutt ChD 25-Nov-2005
The claimant sought to restrain the defendant, one of its former engineers from working for a competitor and using the confidential knowledge he had obtained when working for them.
Held: The court set out the difficulties for a leaving . .
Cited – Koch Shipping Inc v Richards Butler (a Firm) CA 22-Jul-2002
The claimants in an arbitration sought orders with regard to a solicitor who had moved to the opponent’s firm of solicitors, but who came with privileged knowledge of the claimant’s business dealings. She offered undertakings, but the claimant . .
Cited – John Zink and Co Limited v Wilkinson CA 1973
Where a party alleged breach of confidence, the pleadings should be sufficiently particular to allow a defendant to know the particular allegations he faced. . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Lansing Linde v Kerr CA 1991
Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the . .
Cited – Robert v Momentum Services Ltd CA 11-Feb-2003
The claimant appealed against an order refusing an extension of time for service of her particulars of claim. She had made the application before the period expired.
Held: The rules made a clear distinction between applications made before . .
Cited – Thomas v The Home Office CA 19-Oct-2006
The court was asked the parties agree an extension of time for service of a claim form outside the period specified in r. 7.5. The particulars of claim were served nearly five months late.
Held: An extension of time could be agreed between the . .
Cited – Price v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.449397
The employer appealed against a finding that it should pay former commission agents hioliday pay for the entire period since the coming into force of the Regulations.
Peter Clark J
[2004] UKEAT 0657 – 03 – 1301
Employment Rights Act 1996, Working Time Regulations 1998
Updated: 06 September 2022; Ref: scu.432800
[2011] EWCA Civ 438
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales
Updated: 06 September 2022; Ref: scu.432814
EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Employment Tribunal had correctly directed itself that the evidential burden of proving under section 111(2)(b) of the Employment Rights Act 1996, in cases where it is it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three months, that it was reasonable not to have commenced proceedings before the date they were in fact commenced is on the employee. But where the employee adduces some evidence (even if it is untested hearsay evidence) to explain the further delay, such evidence ought not to be rejected unless it is contradicted by other evidence or is otherwise incredible. Here evidence that the employee had recovered very well from extensive surgery did not contradict his evidence that he was very weak in the weeks after the operation and, as there was nothing incredible about his account, the Employment Tribunal had misdirected itself as to what was required in order for it to be satisfied; the appeal was allowed and the Employment Appeal Tribunal substituted a finding that it had been reasonable for the employee not to commence proceedings until the date he did so.
[2010] UKEAT 0517 – 10 – 2911
Updated: 06 September 2022; Ref: scu.432798
Pill, Hooper, Munby LJJ
[2011] EWCA Civ 411
England and Wales
Updated: 06 September 2022; Ref: scu.432812
EAT PRACTICE AND PROCEDURE – Time for appealing
The Claimant lodged a Notice of Appeal 98 days out of time for he went to the Employment Tribunal and then put insufficient postage on it. Extension of time was refused.
[2011] UKEAT 1245 – 10 – 2103
England and Wales
Updated: 06 September 2022; Ref: scu.432792
EAT CONTRACT OF EMPLOYMENT – Damages for breach of contract
Appeal on the construction of the Claimant’s contract of employment in relation to the payment of commission arising before termination. Held on a proper construction of the contract of employment that such commissions were not payable after termination. The Employment Tribunal had properly considered all relevant issues and was entitled to reach the decision it did. Appeal dismissed.
Birtles J
[2010] UKEAT 0239 – 10 – 2511
Updated: 06 September 2022; Ref: scu.432797
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Appeal by an Army Cadet Force Adult Instructor from the judgment of an Employment Judge sitting alone that he was a volunteer and not in ’employment’ as defined by s68(1) Disability Discrimination Act 1995 as amended. Appeal dismissed. The Employment Judge was correct as his factual findings were (a) there was no obligation on the Respondent to provide work (b) there was no obligation on the Claimant to accept work offered (c) he was paid only for the days he worked (d) s212 Employment Rights Act 1996 was not argued.
Birtles J
[2011] UKEAT 0372 – 10 – 1104
England and Wales
Updated: 06 September 2022; Ref: scu.432794
EAT UNFAIR DISMISSAL
Contributory fault
Polkey deduction
Appeal on compensation issues. The Employment Appeal Tribunal allowed the appeal on the grounds that (a) failure in reasoning to make a 35% reduction because of the chance of dismissal on clear evidence; (b) failure to take into account the fixed term contract of employment when reducing the period of compensation. Observations about exclusion of a witness statement in a remedies hearing.
Birtles J
[2010] UKEAT 0093 – 10 – 1304
England and Wales
Updated: 06 September 2022; Ref: scu.432796
EAT SEX DISCRIMINATION
PRACTICE AND PROCEDURE – Compromise
Compromise agreements. Whether compliance with section 77(4B) of the Sex Discrimination Act 1975. Equal pay Claimants. No prior claims presented to Employment Tribunal. Whether the compromise agreements related to ‘particular complaints’? Whether the Claimants ‘received advice’ from an ‘independent adviser’? Whether their solicitors were ‘acting in the matter for the Respondent’? A local authority, in anticipation of having to face thousands of equal pay claims, met with unions and agreed settlement proposals then contacted various large firms of solicitors who agreed to act for individual employees. The employees were invited to meetings at which, as a group, they received a PowerPoint presentation from one of the solicitors and thereafter had individual meetings with solicitors during which compromise agreements were signed. On appeal, Tribunal’s judgment that the compromise agreements met the statutory requirements and were valid, upheld.
Lady Smith
[2011] UKEAT 0036 – 10 – 1003, [2011] IRLR 568
Updated: 06 September 2022; Ref: scu.432793
The appellant sought to challenge an award of damages for unfair dismissal and victimisation discrimination.
[2011] EWCA Civ 427
England and Wales
Updated: 06 September 2022; Ref: scu.432728
Renewed application for permission to appeal.
Rimer LJ
[2011] EWCA Civ 402
England and Wales
Updated: 06 September 2022; Ref: scu.432723
Actions re occupational pension schemes.
Rimer J
[1999] EWHC 848 (Ch), [2000] PLR 15, [2000] OPLR 1, [2000] Pens LR 15
England and Wales
Updated: 06 September 2022; Ref: scu.431952
EAT AGE DISCRIMINATION
Finding of age discrimination made on basis that witness had lied and that in those circumstances the employer could not, apparently as a matter of law, satisfy ‘Igen stage 2’.
[2011] UKEAT 0488 – 10 – 0803
Updated: 06 September 2022; Ref: scu.431917
EAT Practice and Procedure – appearance/response; review; costs
No response entered – review application dismissed summarily under R.35(3) ET Rules of Procedure. Factors for exercise of discretion not considered. Case remitted for full review hearing.
Cost in appeal to be paid by Appellant. Appeal unnecessary, failure to enter response caused by default of Appellant and its advisers.
[2006] UKEAT 0059 – 06 – 2402
Updated: 06 September 2022; Ref: scu.431919
EAT Conjoined appeals – in the HBC case (Article 141) – Were the Claimants working at different establishments from their male comparators and, if so, were they in the same employment. In the STC case were the Claimants in the same service as their comparators (both being employed by the Local Authority)?
[2006] UKEAT 0559 – 05 – 0908
Updated: 06 September 2022; Ref: scu.431921
EAT UNFAIR DISMISSAL
Procedural fairness/automatically unfair dismissal
Compensation
Contributory fault
Unfair Dismissal under s98A(1) and 98(4) Employment Rights Act 1996. Employment Tribunal find 100% contribution and deduction under s123(1). No compensatory award (save in respect of loss of statutory rights).
No error in Employment Tribunal approach. Ingram (UKEAT/0601/06. 23 April 2007. Elias P) considered and followed.
[2011] UKEAT 0501 – 10 – 1803
Employment Rights Act 1996 98(4)
England and Wales
Updated: 06 September 2022; Ref: scu.431916
EAT Unfair Dismissal
The Employment Tribunal Chairman erred in holding that the contracts of employment were not illegal when the employee-directors of the Respondent company agreed to set up a scheme whereby 50% of what was properly found to be salary was paid gross to fictitious service providers and not declared for tax and NI. Remitted to the same Chairman to determine whether the Claimants knowingly substantially participated in the illegality disentitling them from enforcement of claims of unfair dismissal, wrongful dismissal and unlawful deductions.
McMullen QC J
[2005] UKEAT 0523 – 05 – 0411
Updated: 06 September 2022; Ref: scu.431922
EAT AGE DISCRIMINATION
Tribunal wrongly held that the Appellant had not shown a sufficient prima facie case of age discrimination to satisfy ‘Igen stage 1’ – Since the only explanation of the difference in treatment complained of had been rejected the Appellant’s claim succeeded – Remitted for consideration of remedy
[2011] UKEAT 0439 – 10 – 1003
England and Wales
Updated: 06 September 2022; Ref: scu.431915
EAT This appeal raises questions about the proper construction of regulation 8 of the Information and Consultation of Employees Regulations 2004. In particular, the judgment considers how, in a situation where the employees consist of both trade unionists and non-unionists, the CAC should approach the questions whether a pre-existing agreement or agreements cover all the employees within the meaning of regulation 8(1)(b); whether they have the approval of the employees within the meaning of regulation 8(1) (c); and whether they provide the details required by regulation 8(1)(d).
[2006] UKEAT 0143 – 06 – 2004, [2006] ICR 1253, [2006] IRLR 592
Updated: 06 September 2022; Ref: scu.431920
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
In the late afternoon or evening of 3 November 2008 an employee received, as an email attachment, a letter giving 3 months notice of termination; later he learned that he would only be paid until 2 February 2009. The employer contended that the effective date of termination was 2 February 2009 and, therefore, that when the ET1 was lodged on 2 May 2009 it was one day out of time; notice commenced on 3 November 2008 and, in any event, the employment had ended on 2 February 2009. The Employment Tribunal accepted both arguments.
Hand CQ J
[2010] UKEAT 0223 – 10 – 0804, [2011] IRLR 542
England and Wales
Updated: 06 September 2022; Ref: scu.431918
Appeal on points of law from the decision of Deputy Pensions Ombudsman rejecting his complaint that his former employer had been guilty of maladministration in reaching a decision not to award him an ill-health retirement pension on the termination of his employment.
Briggs J
[2011] EWHC 900 (Ch)
England and Wales
Updated: 06 September 2022; Ref: scu.431897
EAT Equal Pay Act – Out of Time
Contract of Employment – Variation
The issue before the Employment Tribunal was whether certain equal pay claims were brought in time. This depended upon whether alterations in terms and conditions were simply variations of an existing contract (in which case they were) or whether they involved the termination of one contract and the creation of another (in which case they were not). There were ten sample claims. In some cases there were new written contracts agreed and in others there were contractual offers made but no indication of any acceptance by the employee. The Tribunal found that in most, but not all, cases the claims were in time. The EAT upheld appeals with respect to two of the claims. Discussion of how to determine whether a contract is merely varied or whether there is a termination of the old contract and the creation of a new one.
[2007] UKEAT 0148 – 06 – 2505, [2008] IRLR 109
Updated: 06 September 2022; Ref: scu.431886
EAT RELIGION OR BELIEF DISCRIMINATION
Whether belief in spiritualism and the philosophical belief in life after death and psychic powers falls within the 2003 Religion and Belief Regulations. The ET finding that it did. Upheld on appeal.
[2009] UKEAT 0434 – 09 – 1211
Updated: 06 September 2022; Ref: scu.431884
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal decided that the dismissal was unfair because dismissal for misconduct was outside the band of reasonable responses but gave no explicit reason and the implicit reasoning was redolent of substitution. The case was remitted because it is for the Employment Tribunal and not the Employment Appeal Tribunal to decide whether this was such serious misconduct as to make dismissal a sanction within the band of reasonable responses.
[2009] UKEAT 0228 – 09 – 1410
Updated: 06 September 2022; Ref: scu.431883
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Mitigation of loss
Polkey deduction
Finding of unfair dismissal by reason of redundancy upheld; the Polkey issue remitted to Employment Tribunal for reconsideration, together with Employment Tribunal determination of mitigation of loss issue.
Peter Clark J
[2011] UKEAT 0323 – 10 – 1103
England and Wales
Updated: 06 September 2022; Ref: scu.431873
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Dismissal of a prison officer for assault on a prisoner – Tribunal holds dismissal unfair because of (a) failures to ‘probe’ alleged inconsistencies in the evidence; (b) unreasonable application of a ‘zero tolerance’ approach; and (c) the cursory nature of the appeal process
Appeal allowed –
Held:
(a) The Respondent was entitled to conclude that the allegedly inconsistent evidence was reliable, and in holding otherwise the Tribunal wrongly substituted its own view
(b) The Respondent’s approach was justifiably strict but did not require automatic dismissal whatever the circumstances.
(c) The appeal process, which was in the nature of a review, could not properly be described as ‘cursory’.
Underhill P J
[2011] UKEAT 0401 – 10 – 0104
England and Wales
Updated: 06 September 2022; Ref: scu.431880
EAT UNFAIR DISMISSAL – Polkey deduction
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Unfair redundancy dismissed. Employment Tribunal formed a view on Polkey deduction without receiving or canvassing submissions. Appeal allowed and case remitted to same Employment Tribunal on Polkey issue for reconsideration based on submissions only. No further evidence to be adduced.
Peter Clark J
[2011] UKEAT 0197 – 10 – 1003
England and Wales
Updated: 06 September 2022; Ref: scu.431872
EAT PRACTICE AND PROCEDURE – Estoppel or abuse of process/Amendment
The appeal was dismissed on issue estoppel. Issue estoppel applied not to the declarations made by the first Employment Tribunal, as apparently decided in the Pre Hearing Review judgment, but to the breach of contract issues that had been decided at that first hearing as stated in the Refusal to Review decision, which must be regarded as forming part of the decision under appeal.
The appeal was allowed on Henderson v Henderson abuse of process. The Employment Judge had misdirected himself by failing to consider the approach identified by Lord Bingham in Johnson v Gore Wood [2002] 1 A.C. 1 at 31A-F. Mr PJ Foster v Bon Groundwork Ltd [2011] UKEAT/0382/10/SM, which emphasises the importance of that approach, was also considered. From now on Employment Tribunals should consider the issue of Henderson abuse of process from the perspective identified by Lord Bingham in the House of Lords in Johnson v Gore Wood and not from that of the Court of Appeal in Divine-Borty v Brent London Borough Council [1998] ICR 886. Whilst the same result would be reached in many cases irrespective as to whether one or other approach was adopted, that was by no means an inevitable outcome in all cases and the instant appeal was an example of that. Having all the necessary material the Employment Appeal Tribunal was able to conclude that there was no abuse of process and grant permission for the amendments.
The appeal was also allowed on the collateral attack abuse of process decision made by the Refusal to Review decision. Parliament has provided by section 43B(1)(c) of the Employment Rights Act 1996 that if there is a reasonable belief that a miscarriage of justice has occurred then any disclosure about it may qualify for protection and the Employment Tribunal erred by failing to differentiate between that cause of action and a collateral attack abuse of process. Having all the necessary material the Employment Appeal Tribunal was able to conclude that there was no abuse of process and grant permission for the amendments.
Hand QC J
[2011] UKEAT 0221 – 10 – 3003
England and Wales
Updated: 06 September 2022; Ref: scu.431875
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Statutory grievance procedures. Collective grievance. Whether compliance with Employment Act 2002 s.32. Employment Act 2002 (Dispute Resolution) Regulations 2004 paragraph 9. Employment Tribunal’s finding that there had been compliance reversed on appeal. Claimant’s representative had referred, for the names of those on behalf of whom a grievance was being raised, to the list in a Schedule but failed to enclose the Schedule. Computer disc sent with letter did not, on the facts, contain that Schedule. Obiter observations on issue of whether or not transmission of a computer disc/USB stick could comply with the obligation to specify ‘in writing’ the names of at least two employees, to the employer.
[2011] UKEAT 0050 – 10 – 1103
Employment Act 2002 32, Employment Act 2002 (Dispute Resolution) Regulations 2004 9
England and Wales
Updated: 06 September 2022; Ref: scu.431878
EAT TRANSFER OF UNDERTAKINGS – Economic technical or organizational reason
Reg 7 of TUPE – whether dismissal for a reason connected with the transfer that is not an ETO reason entailing changes in the workforce.
Tribunal correct to follow and apply Harrison Bowden v Bowden [1994] ICR 186 in preference to Ibex Trading v Walton [1994] ICR 907 – see Morris v John Grose [1998] ICR 655 and CAB Automotive Ltd v Blake and anr [2007] UKEAT/0298/07. Amicus and anr v Dymanex Friction [1999] ICR 511 discussed.
Tribunal’s finding as to administrator’s reason for dismissing Claimant not perverse or insufficiently reasoned.
Tribunal’s approach to ‘ETO reason entailing changes in workforce’ flawed; but Tribunal’s decision plainly right, given its findings as to the reason, in the light of Berriman v Delabole Slate Ltd [1985] ICR 546 and Whitehouse v Chas A Blatchford and Sons Ltd [1999] IRLR 492.
Richardson J
[2011] UKEAT 0339 – 10 – 0102
England and Wales
Updated: 06 September 2022; Ref: scu.431869
EAT PRACTICE AND PROCEDURE
Costs
Previous refusal by the Respondent to accept offers by the Appellant in the same terms as were accepted at the door of the Court held unreasonable conduct, leading to an order in favour of the Appellant of costs in the sum of andpound;3420.
Purton J
[2009] UKEAT 0207 – 09 – 1310
Updated: 06 September 2022; Ref: scu.431882
EAT PRACTICE AND PROCEDURE – Time for appealing
Time for appealing two out of time appeals was enlarged.
In the first, the Claimant did not know there was a right of appeal and when she found out, on contacting the Employment Tribunal, reasonably relied on its assurance that the matter was being actioned. The solicitors did not pass on The Judgment booklet or advice on appeal.
In the second, the Appellant’s (the Fourth Respondent) solicitors did not act speedily but the Appellant knew the deadline and did it himself. He appealed a costs order only. He did not include the ET3 of the First Respondent which had been dismissed from the Employment Tribunal proceedings. That is not an error. He did not include the ET3 of the two other Respondents (apart from himself). That was an error but it was excused by his belief that since they were not affected by the order against him, he had no need to include them. This explanation was reasonable and was accepted.
McMullen QC J
[2011] UKEAT 0824 – 10 – 1103
England and Wales
Updated: 06 September 2022; Ref: scu.431874
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
UNFAIR DISMISSAL
Reasonableness of dismissal
The Tribunal erred in law in finding that the Appellant had not complied with the requirements of step 2 of the Standard Dismissal and Disciplinary Procedure (Schedule 3 to the Employment Act 2002). Finding of automatic unfair dismissal, and consequential increase in award by virtue of section 31(3) set aside.
The Tribunal did not err in law in finding the dismissal to be substantively unfair. Nor did it err in law in its assessment of contributory fault and decrease in award by virtue of section 31(2).
Richardson J
[2009] UKEAT 0055 – 08 – 1805, [2001] IRLR 390
England and Wales
Updated: 06 September 2022; Ref: scu.431881
EAT CONTRACT OF EMPLOYMENT – Disciplinary/grievance procedures
RACE DISCRIMINATION
The Claimant had applied to adjourn the hearing on the ground that he was not fit to conduct the proceedings properly and was unable to obtain representation without an adjournment. The Tribunal refused the application.
Held: the Tribunal did not err in law and the Tribunal’s decision did not render the hearing unfair.
Richardson J
[2011] UKEAT 0336 – 09 – 1102
Updated: 06 September 2022; Ref: scu.431863
EAT AGE DISCRIMINATION
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The issue was whether a complaint was out of time. An Employment Judge who was asked to rule on whether a complaint of the receipt of lower pay than those in a comparable position but for their age had been made within the time limits provided by the Employment Equality (Age) Regulations 2006 reg. 42 erred. She did not address the basis of claim as advanced to her by the Claimants (albeit deciding in their favour), and if she did came to her conclusion on a basis which was flawed, since she did not clearly identify the act which was complained of in the claim and was said to be a continuing act; and when she dealt with the reasons for her decision did so in terms which neither party’s representatives understood. Her judgment appeared to deal with the consequences of re-grading under the NHS Agenda for Change to a transitional pay scale, in the case of those who were younger, which ceased some considerable time before the claims were issued, yet found their complaint to have been in time as part of a continuing act. The distinction between acts and consequences was not obviously appreciated.
Case remitted for reconsideration.
Langstaff J
[2011] UKEAT 0019 – 11 – 2402
Updated: 06 September 2022; Ref: scu.431868
EAT PRACTICE AND PROCEDURE
Review
New evidence on appeal
Admission of fresh evidence – failure to disclose document of relevance and significance in a race discrimination claim – whether to stay pending review or determine the application and deal with the appeal – consideration of Adegbuji v Meteor Parking [2010] UKEAT/1570/09 – whether in the light of fresh evidence hearing below was fair – whether review could cure unfairness. Appeal allowed and case remitted for a fresh hearing before a different Tribunal.
Richardson J
[2011] UKEAT 0405 – 10 – 0302
Updated: 06 September 2022; Ref: scu.431865
EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Constructive dismissal
Reasonable adjustments. The Tribunal was not entitled to hold that the Respondent was in breach of its duty to make reasonable adjustments in respects which were not identified as issues in the case. Chapman v Simon [1994] IRLR 124 and Tarbuck v Sainsbury’s Supermarkets Limited [2006] IRLR 664 applied. The Tribunal’s finding that the Respondent should have ‘explored’ medical redeployment was insufficient and did not address the specific reasonable adjustment put forward – namely, that the Claimant ought to have been placed upon the redeployment register. Reasonable adjustment issue, as regards redeployment, remitted for consideration by the same Tribunal.
Since the Tribunal found the Respondent to be guilty of a continuing fundamental breach of contract, the Claimant was entitled to resign when she did, and no question of affirmation arose. In any event, the Tribunal’s reasoning contained no error of law: the Tribunal was entitled to conclude that there was a ‘last straw’ prior to resignation and that the Claimant had not affirmed the contract by receiving sick pay. Bliss v South East Thames RHA [1985] IRLR 308; London Borough of Waltham Forest v Omilaju [2005] IRLR 65 and El-Hoshi v Pizza Express Restaurants applied.
Richardson J
[2011] UKEAT 0334 – 10 – 2202
Updated: 06 September 2022; Ref: scu.431866
EAT JURISDICTIONAL POINTS – Fraud and illegality
The Employment Judge wrongly concluded that between February and April 2009 it was illegal for a nursery school to employ a person without a CRB certificate.
Richardson J
[2011] UKEAT 0282 – 10 – 2801
Updated: 06 September 2022; Ref: scu.431861
EAT DISABILITY DISCRIMINATION – Reasonable adjustments
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out the Claimant’s claim. The Claimant, a job applicant, was interviewed about a competency different to that which had been (mistakenly) set out in the advertisement for the post. The Employment Judge correctly proceeded on the basis that the Claimant, who was disabled, had been placed at a substantial disadvantage by a PCP applied by the Respondent. She ought not to have struck out the claim unless it was plain and obvious that there was no step which it was reasonable for the Respondent to take in order to prevent the PCP having that effect. It was arguable that there were steps which it was reasonable for the Respondent to take in order to prevent the PCP having that effect. Project Management v Latif Institute [2007] IRLR 57 considered. The Employment Judge also erred in her construction of section 18B(1)(a) of the Disability Discrimination Act 1995; HM Prison Services v Beart [2002] EAT/650/01 applied. Appeal allowed.
Richardson J
[2011] UKEAT 0470 – 10 – 1402
Updated: 06 September 2022; Ref: scu.431867
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Conduct unfair dismissal. Employment Tribunal substituted own view as to penalty of dismissal, notwithstanding correct self-direction in law. Appeal allowed and finding of unfair dismissal reversed.
Peter Clark J
[2011] UKEAT 0453 – 10 – 1102
Updated: 06 September 2022; Ref: scu.431862
The court was asked ‘Can employment to provide children with techniques to deal with emotional and behavioural difficulties constitute being employment ‘in the capacity of a teacher’ or should it properly be described in some other way not incorporating the concept of teaching?’
Ward, Leveson, Pitchford LJJ
[2011] EWCA Civ 359
England and Wales
Updated: 06 September 2022; Ref: scu.431729
EAT Contract of Employment – Definition of employee.
The Honourable Mr Justice Wall
EAT/0630/02
England and Wales
See Also – Thorpe v Dul, Mcgrath (Brooksby Melton College) EAT 6-Sep-2004
EAT Contract of Employment – Definition of employee. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.256489
[2000] UKEAT 954 – 99 – 2505
England and Wales
Updated: 06 September 2022; Ref: scu.265091
[2000] UKEAT 523 – 00 – 0505
England and Wales
Updated: 06 September 2022; Ref: scu.265085
EAT Contract of Employment – Definition of employee.
His Honour Judge Ansell
UKEAT/0041/04 and UKEAT/0042/04
England and Wales
See Also – Thorpe v Dul, Brooksby Melton College, Learning and Skills Council EAT 12-May-2003
EAT Contract of Employment – Definition of employee. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.257100
The claimants had been employed by a company with a normal retirement age of 60. The company was sold to British Airways, wher eh normal age was 55. On being obliged to retire the claimed unfair dismissal. They now appealed dismissal of that claim.
Held: The applicable normal age of retirement under an employment contract was frozen in time, and might be changed after the transfer of an undertaking.
Lord Justice Auld Lord Justice Laws Lord Justice Richards
[2006] EWCA Civ 549, Times 05-Jun-2006, [2006] ICR 1239, [2006] IRLR 804, [2006] Pens LR 155
Transfer of Undertakings (Protection of Employment) Regulations 1981, Employment Rights Act 1996 109
England and Wales
Updated: 06 September 2022; Ref: scu.241914
[2005] UKEAT 0009 – 05 – 2209
England and Wales
Updated: 06 September 2022; Ref: scu.234465
EAT Appeals against Employment Tribunals’ decisions upholding the validity of conciliation contracts effected with the assistance of ACAS officers so as to preclude the Claimants from issuing and enforcing equal pay claims. In each case, ACAS officers discharged their functions under s77 Sex Discrimination Act 1975 and s18 Employment Tribunals Act 1996 which are to be read together. In the Redcar case, the unions had authority to negotiate offers, but not to enter into legally binding agreements, on behalf of the members and non-members. An allegation that the officer lacked independence and impartiality in the Stockton case was dismissed on the facts. Submissions on behalf of ACAS, intervening at the invitation of the EAT, were accepted as to the role of ACAS officers under the law.
[2006] UKEAT 0407 – 05 – 2202
England and Wales
Updated: 06 September 2022; Ref: scu.240231
EAT Equal Pay Act – Article 141
His Honour Judge McMullen QC
[2004] UKEAT 0745 – 02 – 2110, UKEAT/0746/02, UKEAT/0745/02
England and Wales
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.219237
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke.- 8(R): Respondent who has not entered Notice of Appearance in Employment Tribunal held entitled to appeal on remedy.
12(J): Applicant must give credit against award for future loss for payment likely to be made under Permanent Health Scheme by employer.
The Honourable Mr Justice Mitting
UKEAT/0100/04, [2004] UKEAT 0100 – 04 – 2107, [2005] IRLR 20, [2005] ICR 277
England and Wales
Cited – NSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.216041
[1997] UKEAT 1112 – 95 – 0303
England and Wales
Updated: 06 September 2022; Ref: scu.207287
[1997] UKEAT 1272 – 97 – 2411
England and Wales
Updated: 06 September 2022; Ref: scu.207892
Application for leave to appeal.
[2002] EWCA Civ 415
England and Wales
See Also – Simpson v Kensington Housing Trust CA 30-Jan-2002
. .
See Also – Simpson v Kensington Housing Trust EAT 8-Dec-2000
. .
See Also – Simpson v Kensington Housing Trust EAT 5-Oct-2001
EAT Maternity Rights and Parental Leave . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.216983
[1996] UKEAT 1279 – 95 – 1009
England and Wales
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.
Updated: 06 September 2022; Ref: scu.208553
[1995] UKEAT 847 – 94 – 1301
England and Wales
Updated: 06 September 2022; Ref: scu.208858
[1994] UKEAT 784 – 93 – 0202
England and Wales
Updated: 06 September 2022; Ref: scu.209712
Leave application
[2002] EWCA Civ 427
England and Wales
Updated: 06 September 2022; Ref: scu.216913
[1995] UKEAT 196 – 95 – 2107
England and Wales
Updated: 06 September 2022; Ref: scu.209264
[1993] UKEAT 582 – 91 – 2005
England and Wales
Updated: 06 September 2022; Ref: scu.210597