Category: Employment

Billany v Knutsford Conservative Club: EAT 30 Apr 2002

EAT Contract of Employment – Definition of employee.

Judges:

Her Honour Judge A Wakefield

Citations:

[2002] UKEAT 1313 – 00 – 3004, EAT/1313/00

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Billany v Knutsford Conservative Club EAT 28-Jan-2002
. .

Cited by:

See Also – Billany v Knutsford Conservative Club EAT 8-Jul-2003
EAT Contract of Employment – Definition of employee . .
See Also – Billany v Knutsford Conservative Club EAT 8-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 September 2022; Ref: scu.202697

Billany v Knutsford Conservative Club: EAT 28 Jan 2002

Citations:

[2002] UKEAT 1313 – 00 – 2801

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Billany v Knutsford Conservative Club EAT 30-Apr-2002
EAT Contract of Employment – Definition of employee. . .
See Also – Billany v Knutsford Conservative Club EAT 8-Jul-2003
EAT Contract of Employment – Definition of employee . .
See Also – Billany v Knutsford Conservative Club EAT 8-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 September 2022; Ref: scu.202403

Billany v Knutsford Conservative Club: EAT 8 Jul 2003

EAT Contract of Employment – Definition of employee

Judges:

His Hon Judge Birtles

Citations:

[2003] UKEAT 0065 – 03 – 0807, EAT/65/03

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Billany v Knutsford Conservative Club EAT 28-Jan-2002
. .
See Also – Billany v Knutsford Conservative Club EAT 30-Apr-2002
EAT Contract of Employment – Definition of employee. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 September 2022; Ref: scu.191692

Marshalls Clay Products Ltd Pearce Clarke, Sutton, Hoy v Caulfield and others, Huw Howatson Ltd Frank Studdon Ltd, Potting Constuction Ltd, Hanlin Construction: EAT 25 Jun 2003

Conjoined appeals were considered on the issue of whether holiday pay arrangements met the requirements of the Working Time Regulations, where holiday pay was in some was rolled up with normal pay.
Held: Five categories were identified. Those were silent as to holiday pay; contracts excluding entitlement; contracts where holiday pay was included within standard rates but no rate was identified; contracts with a basic rate topped up with a specified amount; and contracts making holiday payments immediately before or after a holiday. The directive had as its objects not only the regulation of working time, but also the minimisation of administrative burdens. Contracts would be valid where the amount of holiday pay was clearly set out or calculable, but not where it was undifferentiated.

Judges:

The Honourable Mr Justice Burton (P)

Citations:

EAT/0198/03, EAT/0392/03, EAT/0589/02, EAT/0900/02, EAT/1447/01, Times 25-Aug-2003, [2004] ICR 1502

Links:

EATn

Statutes:

Working Time Regulations 1998 (1998 No 1833) 13(1) 16(1), Working Time Directive (Council Directive 93/104/EC)

Jurisdiction:

England and Wales

Cited by:

Cited – Airbus UK Ltd v MG Webb CA 7-Feb-2008
The court considered the dismissal by an employer of an employee for a disciplinary offence when he would not have been dismissed but for an earlier warning which had expired.
Held: The company’s appeal succeded. The court summarised the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 September 2022; Ref: scu.185276

The Broadmayne: CA 1916

Pickford LJ rationalised the relation between a state and the crew of a requisitioned vessel as being one of forced hiring.
Bankes LJ said: ‘The position is, I think, quite clearly indicated in the passage from Clerke [Praxis Curiae Admiralitatis], cited with approval by Jeune J (sic). in The Dictator … where the writer says that after appearance the case proceeds ‘ut in actione instituta contra personam debitoris’ – that is to say, that the action is to proceed as if, but only as if, it was an action in personam. The advantage of the action being an action in rem still remains in the sense that, should the exceptional occasion arise, the Court in a proper case would no doubt still have jurisdiction to order the arrest of the vessel.’

Judges:

Pickford LJ, Bankes LJ

Citations:

[1916] P 64

Jurisdiction:

England and Wales

Cited by:

Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Lists of cited by and citing cases may be incomplete.

Transport, Employment, Litigation Practice

Updated: 06 September 2022; Ref: scu.644060

Arthur v Hertfordshire Partnership University NS Foundation Trust (Practice and Procedure Striking-Out : Dismissal): EAT 13 Aug 2019

PRACTICE AND PROCEDURE Striking-out / dismissal
PRACTICE AND PROCEDURE Imposition of deposit
Rules 37(1) and 39(1) Schedule 1 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013
The Employment Tribunal (‘ET’) had struck out the Claimant’s claim of protected disclosure detriments and dismissal as having no reasonable prospect of success. In the alternative, the ET would have made deposit orders (two orders of pounds 250) as a condition of pursuing those claims. The Claimant appealed.
Held: allowing the appeal against the strike out of the Claimant’s claims but upholding the ET’s alternative decision to make deposit orders
The ET had erred in law in holding there was no qualifying disclosure when the information disclosed was already known to the recipient. It had also erred – given the degree of dispute between the parties and the test for causation in a protected disclosure detriment case – in applying too low a threshold when determining whether the Claimant’s claims had no reasonable prospect of success. The same could not be said, however, in respect of ET’s alternative decision to impose deposit orders as a condition of the continued pursuit of the protected disclosure claims; it had not lost sight of the burden of proof under section 48(2) Employment Rights Act 1996 and had reached a permissible view that the claims had little reasonable prospect of success – an assessment that involved an exercise of judicial discretion, which an experienced ET was best placed to make.
The matter would be remitted to the ET to formally draw up the deposit orders, which would stand in substitution for its previous strike out decision

Citations:

[2019] UKEAT 0121 – 19 – 1308

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 September 2022; Ref: scu.642755

Dronsfield v The University of Reading (Unfair Dismissal – Reasonableness of Dismissal – Procedural Fairness): EAT 2 Oct 2019

UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness
The Claimant is an academic. Following a complaint arising from his having had a sexual relationship with a student, he was the subject of a disciplinary process which resulted in his dismissal. The decision of an Employment Tribunal that the Claimant was fairly dismissed was overturned by the EAT and the matter remitted for a fresh hearing. The second Employment Tribunal held that the Claimant was fairly dismissed. The Claimant appealed that decision.
The Respondent had issued detailed guidance on relationships between staff and students which the Claimant was expected to follow. However, he could only be dismissed for conduct of an ‘immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment.’ (For short: ‘immoral, etc., conduct.’)
The disciplinary process went through the following stages: investigation and report and recommendations to the Vice-Chancellor; disciplinary charges and hearing; decision to dismiss by Vice-Chancellor on recommendation of the disciplinary panel; appeal to an external barrister. The disciplinary panel found the Claimant guilty of (1) failing to report the relationship, which had created a potential conflict; (2) abuse of power to influence a vulnerable student; and (3) breach of his duty of care to her. It found this amounted to immoral, etc. conduct. The appeal officer upheld (1) and (3) and also considered that such conduct amounted to immoral, etc., conduct.
The principal ground of appeal concerned the Tribunal’s approach to the evidence that material in a draft of the investigation report was removed from the final report, in particular a statement that there was no evidence that the Claimant’s conduct amounted to immoral etc., conduct and other conclusions favourable to his case.
As to this, the Tribunal’s decision, read as a whole, addressed the questions which the EAT in the first appeal had said should be considered. It found that the report had been amended on the advice of a solicitor that it should not set out evaluative conclusions on whether the Claimant’s admitted factual conduct amounted to an abuse of power, a breach of duty or immoral etc., conduct. Those judgments should be left to any Disciplinary Tribunal that was subsequently appointed. The Tribunal properly concluded that adopting that approach was not unfair.
Nor had the Tribunal erred in referring in one particular passage to the Claimant having admitted breaches of the ‘rules’ because he had admitted to having had a sexual relationship with a student which he had not reported. The Tribunal was clearly referring there to the Respondent’s guidance and to the factual conduct which had indeed been admitted, and underpinned all of the disciplinary charges. It was plainly aware of all three charges.
The Tribunal’s decision, read as a whole, sufficiently addressed the case that had been advanced for the Claimant, that, for various reasons, the removal from the final investigators’ report, of the conclusions that were included in a previous draft had irredeemably tainted the subsequent process with unfairness. Its overall decision was Meek compliant.
The appeal was therefore dismissed.

Citations:

[2019] UKEAT 0255 – 18 – 0210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 September 2022; Ref: scu.642769

Retirement Security Ltd v Wilson: EAT 11 Jul 2019

Unfair Dismissal — Constructive Dismissal – Reason for Dismissal Including Some Other Substantial Reason
The ET upheld the Claimant’s complaint of constructive unfair dismissal, finding that the Respondent’s conduct of an investigatory process into allegations of misconduct was such as to be likely to destroy or seriously damage the relationship of trust and confidence and amounted to a fundamental breach of the implied term. The Respondent appealed, arguing (1) the ET had erred in failing to specifically consider whether it had shown a potentially fair reason for the dismissal and whether that dismissal fell within the band of reasonable responses; and (2) the ET had transposed the fair hearing/natural justice requirements of a disciplinary hearing on to an investigation meeting.
Held: dismissing the appeal.
The Respondent was seeking to put its case on a basis that had not been pursued before the ET; the ET had clarified the points in issue at the outset of the hearing, which did not include an alternative case that any (constructive) dismissal was nevertheless fair. Although a finding of constructive dismissal did not necessitate a finding of unfairness, it remained for the Respondent to show the reason for that dismissal and that it was capable of being fair. The difficulties that might arise for an employer in this regard did not absolve a Respondent from the burden imposed by section 98(1) Employment Rights Act 1996 and did not require the ET to construct a reason on the Respondent’s behalf. In any event, on the ET’s findings of fact, the Respondent’s conduct of the investigation process – the conduct that had entitled the Claimant to terminate the contract of employment – had been so flawed that the Claimant could reach no other view than that the Respondent wanted to be rid of her; that did not establish any reason that was capable of being fair for section 98 purposes.
As for the second ground of appeal, although the way in which a disciplinary investigation is to be conducted will depend on the particular circumstances of the case, the ET had permissibly found that the Respondent had acted in such a way as to breach the implied term. No error of law was disclosed.

Citations:

[2019] UKEAT 0019 – 19 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 September 2022; Ref: scu.643078

Pontoon (Europe) Ltd v Shinh and Another (Amendment): EAT 4 Oct 2019

There was no error of law on the part of the Employment Tribunal in deciding to permit the amendment of the claim form and the addition of a second respondent to:
(1) the original claim, which was brought in time against the original respondent; and
(2) a new claim, which the Employment Tribunal found was brought in time against both respondents.

Citations:

[2019] UKEAT 0094 – 18 – 0410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 September 2022; Ref: scu.642770

Park Chinois Ltd v Ozkara and Others (Jurisdictional Points – Extension of Time: Just and Equitable : Unfair Dismissal): EAT 31 Jul 2019

JURISDICTIONAL POINTS – Extension of time: just and equitable
UNFAIR DISMISSAL – Reinstatement /re-engagement
UNFAIR DISMISSAL – Compensation
CONTRACT OF EMPLOYMENT – Damages for breach of contract
PRACTICE AND PROCEDURE – Striking-out/dismissal
In three wide ranging appeals arising from three separate decisions dealing with two claims by former restaurant managers of wrongful dismissal, unfair dismissal, discrimination, harassment, deduction from earnings and other claims, it had not been shown that the tribunal had erred in any way. All three appeals failed on all grounds.
In the first appeal, the tribunal had been justified in extending time for presenting the claims alleging harassment on the ground of race and/or religion. It had not erred in applying the maximum 25 per cent uplift for unfair dismissal compensation and had set out sufficient reasons for selecting the maximum figure. It had not unfairly favoured the claimants by adjourning the contract claims to the remedies stage and then agreeing (under rule 52 of the ET Rules of Procedure) not to dismiss them on their withdrawal.
In the second appeal, the tribunal had been justified on the evidence then before it in finding that following the first claimant’s unfair dismissal, it was practicable for the first respondent restaurant company to reinstate the first claimant; and in rejecting the employer’s case that reinstatement was not economically viable and that trust and confidence in the first claimant had broken down. The tribunal had not erred in finding that the first claimant had not contributed to his dismissal by his conduct; nor in describing reinstatement as the ‘primary remedy’ for unfair dismissal.
In the third appeal, the tribunal had been justified in receiving an affirmation from the second respondent contradicting the evidence given (in the second respondent’s absence) at the previous remedies hearing and in revisiting and altering on the basis of that affirmation and further written submissions without a further oral hearing (no such further hearing having been sought by the first claimant after receiving the affirmation) its previous, provisional finding that reinstatement was practicable, deciding that it was not and that compensation only should be awarded instead.

Citations:

[2019] UKEAT 0224 – 18 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 September 2022; Ref: scu.642752

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 breach of the 1998 Regulations, saying that the statutory exemption of the Embassies from liability infringed their human rights in Convention and EU law. The Foreign Secretary, on behalf of the embassies now appealed a finding that the provision was an infringement of the workers’ human rights.
Held: The appeals failed.

Judges:

Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption

Citations:

[2017] UKSC 62, [2017] 3 WLR 957, [2017] WLR(D) 691, UKSC 2015/0063

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary video, SC Video * Jun 17 pm, SC Vid 6/6/17 pm, SC Vid 7/6/17 am, SC Vid 7/6/17 pm, SC Vid 8/6/17 am

Statutes:

State Immunity Act 1978, European Union Charter of Fundamental Rights, European Convention on Human Rights, Working Time Regulations 1998

Jurisdiction:

England and Wales

Citing:

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, . .
At CA – Benkharbouche and Another v Embassy of The Republic of Sudan CA 5-Feb-2015
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 . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – The Owners of The Ship Philippine Admiral (Philippine Flag) v Wellem Shipping (Hong Kong) Limited and Another PC 5-Nov-1975
(Hong Kong) Sovereign immunity was denied to state trading ships, restricting the extent of state immunity. . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Markovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Waite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Sabeh El Leil v France ECHR 29-Jun-2011
Grand Chamber – The applicant alleged that he had been deprived of his right of access to a court as a result of the immunity from jurisdiction upheld by the domestic courts.
This was a claim for unfair dismissal, brought before the French . .
Cited – Cudak v Lithuania ECHR 23-Mar-2010
Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in . .
Cited – Wallishauser v Austria (No 2) ECHR 20-Jun-2013
. .
Cited – Radunovic And Others v Montenegro ECHR 25-Oct-2016
. .
Cited – Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) ICJ 1986
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. . .

Cited by:

Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Human Rights, European, Employment, Discrimination

Updated: 04 September 2022; Ref: scu.597258

Aahyan v European Parliament (Staff Regulations): ECJ 30 Apr 2009

ECJ Civil service – Session auxiliaries of the European Parliament – Admissibility – Pre-litigation procedure – Article 283 EC – Article 78 of the Conditions of Employment – Plea of illegality – Equal treatment – Stable employment – Directive 1999/70 – Fixed-term contracts – Possibility of relying on certain provisions

Citations:

65/07, [2009] EUECJ 65/07

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 September 2022; Ref: scu.431633

Societe Generale, London Branch v Geys: CA 30 Mar 2011

The defendant appealed against an award of substantial damages on its summary dismissal of the respondent said to be contractually due to him on termination.
Held: The appeal was allowed in part. The appellant was dismissed on 18 December 2007.

Judges:

Arden, Rimer, Pitchford LJJ

Citations:

[2011] IRLR 482, [2011] EWCA Civ 307

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At ChD – Geys v Societe Generale, London Branch ChD 25-Mar-2010
The claimant said that he was entitled to payment of substantial sums on the determination of his employment contract.
Held: The court gave judgment for Mr Geys in a sum to be assessed, with a payment on account by 1 April 2010 of Euros 11m . .

Cited by:

At CA – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 04 September 2022; Ref: scu.431560

Mahood v Irish Centre Housing Ltd: EAT 22 Mar 2011

EAT RACE DISCRIMINATION – Vicarious liability
An employer is only liable for the discriminatory acts committed by an agency worker who became part of its workforce if either:
1. he became its employee as defined in cases such as, James v London Borough of Greenwich [2008] ICR 545, or,
2. if he acted as the employer’s agent in the sense that when doing a discriminatory act he was exercising authority conferred by the employer. In other words if he had authority to do an act which was capable of being done in a discriminatory manner just as it was capable of being done in a lawful manner.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0228 – 10 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 September 2022; Ref: scu.430751

Crouch v ANT Marketing and Others: EAT 24 Feb 2011

EAT PRACTICE AND PROCEDURE
Appearance/response
Striking-out/dismissal
Employment Tribunal Rules 4,8,33. ET3 response accepted. Claimant contended that response lodged on behalf of Respondent 1 (employer) only and not also Respondent 2 (HR Manager) and applied for default judgment to be issued against Respondent 2. Employment Judge declined to do so. Claimant appeal dismissed. Employment Judge entitled to treat ET3 as joint response but if not review of default judgment would be allowed.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0031 – 11 – 2402

Links:

Bailii

Employment

Updated: 04 September 2022; Ref: scu.430830

T Mobile (Uk) Ltd v Singleton: EAT 23 Mar 2011

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
(1) Employment Judge erred in finding that the employer had caused the employee to make an error in his calculation of the three month time limit in failing to disabuse him of his mistake when there was no evidence of any misrepresentation or deliberation omission by the employer. There was no evidence that the employer had addressed its mind to the issue at all.
(2) The fact that the employee had taken legal advice as to as to time limits about not instructing the solicitor to represent him at the hearing was material to the question of reasonable practicability under s111(2)(b) Employment Rights Act 1996. Observations of Burton J in Ashcroft v Haberdasher’s Aske’s Boys School (UKEAT/0151/07/CEA) followed.

Judges:

Birtles J

Citations:

[2011] UKEAT 0410 – 10 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 September 2022; Ref: scu.430831

Chambers-Mills v Allied Bakeries: CA 21 Feb 2011

The claimant appealed against the strike out of her case for failing to comply with an order requiring her to submit to medical examination and otherwise to pursue her disability discrimination claim.
Held: The claimant’s further application for an adjournment was denied. There had been consistent and repeated failure to co-operate with the tribunals and the court. The employment ceased in 2005. The respondent was entitled eventually to a decision. The appeal would be decided, and it was refused.

Judges:

Lord Neuberger MR, Hooper, Rimer LJJ

Citations:

[2011] EWCA Civ 277

Links:

Bailii

Statutes:

Employment Tribunals Rules of Procedure 2004 18(7)(c)

Jurisdiction:

England and Wales

Citing:

At EAT – Chambers-Mills v Allied Bakeries EAT 18-Nov-2008
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
The Appellant appealed a strike out order, but the correct authority (Blockbuster) was applied and there was (i) no perversity in the ET’s findings of . .
Leave granted – Chambers-Mills v Allied Bakeries CA 26-Nov-2009
The claimant renewed orally her request for leave to appeal against the EAT which had upheld loss of her claim, after the Employment Tribunal had found her conduct of the proceedings unreasonable in failing to co-operate in a medical enquiry into . .
Cited – De Keyser Limited v Wilson EAT 20-Mar-2001
The claimant appealed against an order striking out her claim.
Held: The right to respect for private life is qualified by the right for both parties to have a just trial of the issues between them; and it has to be borne in mind that it was . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 September 2022; Ref: scu.430734

Penarroja (Freedom To Provide Services) C-373/09: ECJ 17 Mar 2011

ECJ Article 43 EC – Freedom of establishment – Article 49 EC – Freedom to provide services – Restrictions – Court experts who are professional translators – Exercise of official authority – National legislation reserving appointment as a court expert for persons enrolled in registers established by the national judicial authorities – Justification – Proportionality – Directive 2005/36/EC – Concept of ‘regulated profession’.

Citations:

C-373/09, [2011] EUECJ C-373/09

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 04 September 2022; Ref: scu.430722

Penarroja (Freedom To Provide Services) C-372/09: ECJ 17 Mar 2011

ECJ Article 43 EC – Freedom of establishment – Article 49 EC – Freedom to provide services – Restrictions – Court experts who are professional translators – Exercise of official authority – National legislation reserving appointment as a court expert for persons enrolled in registers established by the national judicial authorities – Justification – Proportionality – Directive 2005/36/EC – Concept of ‘regulated profession’.

Citations:

C-372/09, [2011] EUECJ C-372/09

Links:

Bailii

Statutes:

Directive 2005/36/EC

Jurisdiction:

European

Employment

Updated: 04 September 2022; Ref: scu.430721

Walsall Metropolitan Borough Council and Another v Birch and Others: EAT 17 Feb 2011

EAT PRACTICE AND PROCEDURE
Amendment
Parties
The Employment Judge granted to a group of 103 Claimants permission to amend the claims and join the TUPE transferee where the TUPE transferor had been the Respondent. The application was made after the expiry of a relevant time limit – namely the time limit on making a claim post TUPE transfer for pre transfer arrears of equal pay as per Sodexo Limited v Gutridge [2009] ICR 1486. The Employment Judge applied the principles in Selkent Bus Co v Moore [1996] ICR 836.
Held: the Employment Judge was correct to apply Selkent principles, and she did not make any error of law in the way she applied them. Appeal dismissed.

Judges:

Richardson J

Citations:

[2011] UKEAT 0376 – 10 – 1702

Links:

Bailii

Employment

Updated: 04 September 2022; Ref: scu.430681

Ezsias v North Glamorgan NHS Trust: EAT 18 Mar 2011

EAT CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
(1) An employee who has been dismissed because of the breakdown of working relationships between himself and his colleagues (irrespective of whether he had been responsible for, or had contributed to, that breakdown) had not had action taken against him because of his conduct. Accordingly, it had been open to the Employment Tribunal to rule that such disciplinary procedures as applied when allegations of misconduct were made did not have to be invoked in his case.
(2) The other issues to which the appeal related did not raise any questions of principle.

Judges:

Keith J

Citations:

[2011] UKEAT 0399 – 09 – 1803, [2007] ICR 1126, [2007] 4 All ER 940, (2011) 121 BMLR 84, [2011] IRLR 550, [2011] Med LR 251

Links:

Bailii

Statutes:

Employment Rights Act 1996 103A

Jurisdiction:

England and Wales

Citing:

See Also – Ezsias v North Glamorgan NHS Trust EAT 25-Jul-2006
EAT Employment Tribunal struck out unfair dismissal claims stating they were bound to fail. The employers had made two applications, one for a deposit to be ordered pursuant to rule 20 of the Employment Tribunal . .
See Also – Ezsias v North Glamorgan NHS Trust CA 7-Mar-2007
The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT.
Held: A claim should not be struck out where, as here, there were facts . .
Cited – Street v Derbyshire Unemployed Workers’ Centre CA 21-Jul-2004
The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Cited – Perkin v St Georges Healthcare NHS Trust CA 12-Oct-2005
A senior employee had been dismissed because his manner and management style had led to a breakdown in his relationships with other members of the senior executive team. The employment tribunal had considered whether his dismissal for that reason . .
Cited – D’Sa v University Hospital Coventry and Warwickshire NHS Trust CA 18-Jun-2001
An inquiry panel had concluded that the surgeon had been guilty of professional misconduct, but had recommended that the appropriate disciplinary sanction was that the surgeon should be warned about his behaviour. The court was now asked whether at . .
Cited – Buxton v Swansea NHS Trust 27-Apr-2007
Mercantile Court, Birmingham – The surgeon appellant had been dismissed by the NHS Trust which employed him. The reason for his dismissal was described as ‘a breakdown in relations between yourself and your Consultant colleagues that is both mutual . .

Cited by:

Cited – Lockey v East North East Homes Leeds EAT 14-Jun-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out – unfair dismissal and wrongful dismissal.
As to unfair dismissal, since (as the Employment Judge recognised) it was arguable that an . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 04 September 2022; Ref: scu.430683

World of Home Improvements Ltd v J Cooper-Frewer: EAT 24 Feb 2011

EAT PRACTICE AND PROCEDURE – New evidence on appeal
UNFAIR DISMISSAL – Compensation
CONTRACT OF EMPLOYMENT – Written particulars
Admitting fresh evidence on appeal which ought to have been admitted by Employment Tribunal on review. It related to a matter not in issue at the original hearing but adjudicated on by Employment Tribunal. As a result of the new evidence (Claimant’s letter of appointment setting out his terms and conditions) an award under s38 Employment Act 2002 was set aside.
The remainder of the appeal failed. A final payment on termination of employment extinguished Claimant’s right to PILON. It did not affect Employment Tribunal’s award of two weeks loss of pay by way of compensatory award where dismissal for redundancy would have been delayed by two weeks had proper consultation taken place.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0248 – 10 – 2402

Links:

Bailii

Employment

Updated: 04 September 2022; Ref: scu.430659

Iteshi v London Borough of Hammersmith and Fulham: EAT 17 Mar 2011

EAT PRACTICE AND PROCEDURE
New evidence on appeal
Striking-out/dismissal
RACE DISCRIMINATION – Continuing act
Fresh evidence on appeal – continuing act – ET rule 18(7)(b) strike-out.
Fresh evidence admitted to show that final complaint was in time, but that earlier complaints did not form part of a continuing act (separate job applications by non-employee). Final complaint properly struck out as having no reasonable prospect of success, albeit a complaint of race discrimination.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0491 – 10 – 1703

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 September 2022; Ref: scu.430661

Foster v Bon Groundwork Ltd: EAT 17 Mar 2011

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by the Respondent he submitted an ET1 alleging he had been laid off.
By a judgment of Employment Judge Salter (‘the first judgment’), it was held that the Claimant was not entitled to redundancy pay. The Claimant was dismissed because of retirement with effect from 31 July 2009.
He then submitted a new ET1 claiming, among other things, four different types of unfair dismissal, notice pay in breach of contract and a guarantee payment.
The Respondent applies to have the claims struck out as being res judicata by reason of the first judgment on alternatively as an abuse in the Henderson v Henderson sense. The application was granted save in respect of the guarantee payment. The Claimant appealed and the Respondent cross-appealed in respect of the guarantee payment.
Held –
1. Appeal allowed as:
(a) Res judicata did not apply as although the first Tribunal held that the Claimant was not dismissed by reason of redundancy, this did not create an estoppel as (i) this finding was not necessary for the decision as the claim was layoff (Arnold v National Westminster Bank [1991] 2 AC 93, 105 applied; and (ii) In any event, the first Tribunal did not have jurisdiction to deal with a redundancy as it was premature (Watts v Rubery Owen [1997] 2 All ER 1, applied);
(b) This was not a case of abuse as there was no oppressive conduct and this was not a case of the Claimant abusing the court process (Johnson v Gore-Wood [2002] 2 AC 1, 31 applied).
The cross-appeal was dismissed as the Employment Judge was entitled to conclude that it was not an abuse in the Henderson v Henderson sense to pursue this claim in the second action.

Judges:

Silber J

Citations:

[2011] UKEAT 0382 – 10 – 1703

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Still Good Law – Watts v Rubery Owen Conveyancer Limited EAT 1977
The claimant sought a redundancy payment. The employer said that his employment had not yet finished.
Held: Kilner Brown J said: ‘The effect of these cases is that where an application is made to an Industrial Tribunal before the act of . .
Mentioned – Pritchard-Rhodes Limited v Boon and Milton EAT 1979
An application to the Industrial Tribunal for a redundancy payment was not effective because it failed to comply with the statutory requirements which, on their true construction, provided that an application could not be effectively made to an . .
Cited – O’Laoire v Jackel International Limited (No 2) CA 1991
On taking up employment the plaintiff was told he would later be appointed managing director. His employment was terminated, and he sought damages.
Held: The defendant was estopped from denying it would appoint him managing director, since . .
Cited – Arnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Cited – Danyluk v Ainsworth Technologies Inc 12-Jul-2001
Canlii (Supreme Court of Canada) Administrative law – Issue estoppel – Employee filing complaint against employer under Employment Standards Act seeking unpaid wages and commissions – Employee subsequently . .
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 . .
Cited – Chapman v Simon CA 1994
The court considered the approach where a party sought to raise on appeal a complaint not made in the case presented to the tribunal.
Held: An Employment Tribunal must decide the issues which are put before it and should not decide issues . .
Cited – South Durham Health Authority v Unison EAT 6-Feb-1995
Mummery J P said: ‘Similarly in the case of entitlement to redundancy payments discussed in the authorities relied on by [counsel] there is no right of action, no entitlement to the payments before the date of termination has arrived. An originating . .
Cited – Williams, Regina v CACD 2-Nov-2010
The offence of causing death by driving while unlicensed, disqualified or uninsured, is committed if the driver is unlicensed, disqualified or uninsured and if the driving is a cause of death in the sense that it was ‘more than negligible or de . .
Cited – Watt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
Cited – Manson v Vooght and Others CA 3-Nov-1998
The claimant was the former managing director of a company, which had been placed into administrative receivership. The claims were for breach of contract and conversion (in relation to antique furniture) and they were brought against the . .
Cited – HM Prison Service v Barua EAT 15-Nov-2006
EAT Time Limits
Practice and Procedure – 2002 Act and pre-action requirements
Unfair Dismissal – Constructive dismissal
For the purpose of the extension of the time afforded by reg. 15 of the . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Morris v Wentworth-Stanley CA 4-Sep-1998
Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and . .
Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Lists of cited by and citing cases may be incomplete.

Employment, Estoppel

Updated: 04 September 2022; Ref: scu.430660

Larder, Miles v Warwickshire County Council: EAT 19 Dec 2003

EAT Redundancy – Protective award.

Judges:

His Honour Judge J Burke Qc

Citations:

EAT/0128/02

Links:

EAT

Jurisdiction:

England and Wales

Citing:

See Also – Larder and Another v Warwickshire County Council EAT 9-Jun-2003
EAT Redundancy – Protective award . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 September 2022; Ref: scu.256673

Miles v Gilbank: CA 11 May 2006

The employee claimed she had been bullied by her manager after she became pregnant. She sought damages both from the employer and from the manager personally.
Held: The manageress was personally liable. The scheme for sex based discrimination was similar to the scheme for race discrimination as regards aiding and abetting as considered in Vento.

Judges:

Lord Justice Chadwick Lady Justice Arden Lord Justice Sedley

Citations:

[2006] EWCA Civ 543, [2006] IRLR 538, [2006] ICR 1297

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – M Miles v J Gilbank EAT 21-Oct-2005
The employee had succeeded in her claim for sex discrimination after being mistreated when she notified the company of her pregnancy. The company’s manager appealed a finding of joint personal responsibility with the company.
Held: The appeal . .
Cited – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 04 September 2022; Ref: scu.241648

Sukui-Lennard v Croydon Primary Healthcare Trust: CA 22 Jul 2003

The appellant sought to appeal a striking out of her complaint of race discrimination. She appealed from the Employment Appeal Tribunal which had rejected her appeal in its preliminary hearing procedure.
Held: The Court of Appeal had the power to return a case to the full Employment Appeal Tribunal so that it could hear and determine points necessary for the decision in the Appeal. An appeal from a decision under the preliminary hearing procedure risked matters coming to the Court of Appeal which would be better have been resolved before the appeal. This case was one such.

Judges:

Perter Gibson, Mance, Longmore LJJ

Citations:

Times 14-Aug-2003, [2003] EWCA Civ 1192

Links:

Bailii

Statutes:

Civil Procedure Rules 52.10(2)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Grady v HM Prison Service CA 11-Apr-2003
The applicant appealed striking out of her employment claims against the respondent. She had been made bankrupt after lodging her appeal to the EAT, and the EAT had held that she lacked standing to pursue her claim.
Held: Employment claims are . .
Appeal from – Sukul-Lennard v Croydon Primary Care Trust EAT 5-Nov-2002
. .

Cited by:

Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
See Also – Sukul-Lennard v Croydon Primary Care Trust CA 22-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Civil Procedure Rules

Updated: 03 September 2022; Ref: scu.185657

Ryan v Priory Healthcare Ltd and Another: EAT 7 Jun 2019

Practice and Procedure — Application/Claim
The Employment Tribunal (‘the ET’) rejected the Appellant’s ET1 under rule 10(1)(c) of the Employment Tribunal Rules of Procedure. The brief reasons for the decision were not consistent with a rejection under rule 10(1)(c). In response to written questions from the Employment Appeal Tribunal (‘the EAT’) the Employment Judge (‘the EJ’) said she had applied rule 12(1)(f) when rejecting the claim. The Appellant applied for reconsideration of the rejection. The EJ did not uphold the rejection under rule 10(1)(c), or under rule 12(1)(f), but rejected the claim for abuse of process (rule 12(1)(b)). The Appellant did not appeal against that decision, or apply for it be reconsidered.
The EAT held that the rejection under rule 10(1)(c) was unlawful, as rule 10(1)(c) did not apply, and that the decision could not be interpreted as a rejection under rule 12(1)(f), as that rule was not referred to and there was no evidence that the EJ had made the judicial assessments required by rule 12(2A).

Citations:

[2019] UKEAT 0217 – 18 – 0706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 September 2022; Ref: scu.643077

Barrasso v New Look Retailers Ltd: EAT 22 Aug 2019

JURISDICTIONAL POINTS – excluded employments – employee shareholder –
Section 205A Employment Rights Act 1996
In September 2015, the Claimant had entered into a section 205A employee shareholder agreement. It was agreed that this had met the requirements provided such that the Claimant thereby became an employee shareholder and was thus excluded from the statutory right to claim unfair dismissal or a redundancy payment. At the same time, however, the parties entered into a separate agreement (‘the September 2015 deed’) which gave him a contractual means of seeking equivalent remedies should he subsequently consider he had been unfairly dismissed or was entitled to a redundancy payment. In March 2017, the Claimant entered into a new service agreement with the Respondent, which included a ‘whole agreement’ clause (clause 27.5) stating that it superseded all previous agreements between the parties dealing with the same matters, save for the contractual ‘reinstatement’ of rights in the September 2015 deed. In February 2018, the Claimant was dismissed in circumstances that he regarded as unfair. The Respondent paid him a statutory redundancy payment and, in replying to his pre-action correspondence, did not seek to rely on the section 205A agreement until it entered its response in the ET proceedings. At a Preliminary Hearing, the ET found that the Claimant was an employee shareholder for the purposes of section 205A Employment Rights Act 1996 and was thus excluded from the right to claim unfair dismissal. The Claimant appealed.
Held: dismissing the appeal
The Claimant argued that section 205A must be construed purposively, in accordance with the restrictions on contracting out of statutory rights (under section 203) and consistently with his rights under the ECHR and other international instruments laying down a right not to be unjustifiably dismissed. Adopting that approach, he contended that the ET had erred in failing to require that the parties had affirmed the conditions laid down for section 205A to apply as at the date of the statutory contravention in issue (here, dismissal). He further argued that the March 2017 service agreement had superseded the section 205A agreement, evincing the parties’ intention that the Claimant’s statutory rights were reinstated.
It was not accepted that the Claimant’s construction arguments were assisted by reference to section 203 ERA or by the provisions of the ECHR or other international instruments. A section 205A agreement did not fall to be considered under section 203; the Claimant had not demonstrated that any article under the ECHR was engaged; and UK law provided for protection from unjustified dismissal but the Claimant had contracted out of that protection (something not prohibited by any of the international provisions relied on). A purposive construction of section 205A meant no more than interpreting the exemption from statutory protection narrowly and ensuring strict compliance with the pre-conditions for employee shareholder status. In this case, it was common ground these were met when the Claimant entered into the section 205A agreement and the ET did not err in failing to require that the conditions laid down by section 205A were re-affirmed by the parties at the date of dismissal.
As for the effect of the March 2017 service agreement, although section 205A did not state how employee shareholder status might be lost, this might arise as a result of some subsequent inconsistent agreement between the parties. The question thus became one of construction of the March 2017 service agreement. In this regard, the ET had permissibly found that the factual background (the context in which it was construing the agreement) was not as the Claimant had contended: rather, the facts suggested that the parties’ intention was that the only ‘reinstatement’ of rights was by contract – as provided in the September 2015 deed. That position was not undermined by the parties’ subsequent failure to reference the section 205A agreement when the Claimant was dismissed (something the ET had found arose from inadvertent error and was not reflective of any intention that the section 205A agreement no longer applied). The March 2017 service agreement did not supersede the section 205A agreement because it did not deal with the same matters. In any event, the express reservation in respect of the September 2015 deed made clear that the parties intended the Claimant’s contractual rights to complain of unfair dismissal and redundancy would continue, something that was only consistent with the Claimant continuing to be an employee shareholder and thus excluded from the ability to pursue such claims under the statute.

Judges:

Eady HHJ

Citations:

[2019] UKEAT 0079 – 19 – 2208

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 September 2022; Ref: scu.642756

Department of Work and Pensions v Robinson (Discrimination : Disability): EAT 23 Jul 2019

The employment tribunal had been bound to dismiss the claimant’s claim for discrimination arising from the claimant’s disability. The claimant had a disability which caused her to suffer from migraines caused by computer software, which the respondent unsuccessfully tried to address by use of screen magnification software. The respondent eventually moved the claimant to a paper based role and, the tribunal found, delayed unreasonably in dealing with the claimant’s grievances.
The tribunal must have applied an impermissible ‘but for’ test in finding a breach of section 15 of the Equality Act 2010 through failure to protect the claimant from stress and detriment to her wellbeing and (if they so found) for failure to implement the adjustments recommended.
If (which was unclear) the tribunal meant to uphold the allegation that changing the claimant’s role was a breach of section 15, that conclusion was inconsistent with failure of the reasonable adjustments claim and the respondent’s defence of justification ought to have succeeded.
The tribunal’s reliance on delays in finding a technical solution and in dealing with the claimant’s grievances were not capable of amounting to a breach of section 15, applying the reasoning in Dunn v Secretary of State for Justice [2019] IRLR 298.
The claimant’s cross-appeal was against the tribunal’s rejection on the facts of the claimant’s ‘reasonable adjustments’ claim under section 20 of the 2010 Act. The tribunal found that particular magnification software had been adequately considered. That finding was sound, supported by evidence and not perverse. Nor could the claimant succeed in impugning the tribunal’s conclusion by reliance on evidence that came into existence after the hearing, though before the tribunal gave its reserved decision.
The appeal therefore succeeded and the cross-appeal failed. The appeal tribunal would not remit the case but would substitute a finding that the claim under section 15 must fail. There was no basis for interfering with the tribunal’s decision to dismiss the section 20 claim.

Citations:

[2019] UKEAT 0021 – 19 – 2307

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.642743

The Independent Workers Union of Great Britain, Regina (on The Application of) v Central Arbitration Committee : Re: Deliveroo: Admn 5 Dec 2018

The Union sought judicial review of a decision that the delivery workers for Deliveroo were not workers, they, their union, was not entitled to recognition for collective bargaining purposes.
Held: The request was not made out and failed.

Judges:

Supperstone J

Citations:

[2018] EWHC 3342 (Admin)

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 03 September 2022; Ref: scu.631217

Unison, Regina (on The Application of) v Lord Chancellor: Admn 29 Jul 2013

Renewed application for permission to bring a claim for judicial review of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013.

Judges:

Lewis J

Citations:

[2013] EWHC 2858 (Admin)

Links:

Bailii

Statutes:

Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013

Jurisdiction:

England and Wales

Cited by:

At Admn – Unison, Regina (on The Application of) v Lord Chancellor SC 26-Jul-2017
The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The . .
Lists of cited by and citing cases may be incomplete.

Administrative, Employment, European

Updated: 03 September 2022; Ref: scu.601147

Treganowan v Robert Knee and Co Ltd: QBD 1975

Phillips J considered whether the term of notice of a dismissal may make it unfair: ‘In my judgment, a tribunal has to say to itself, ‘This man was dismissed in such- and-such circumstances. The reason was so-and-so. Have the employers satisfied us that they acted reasonably in treating that reason, in those circumstances, as a sufficient reason for dismissing him?’ If ‘No’: unfair dismissal, and the complaint succeeds. If ‘Yes’: the complaint fails. They are not concerned for this purpose with whether the dismissal was summary or whether the notice was long enough. That would be relevant for a court to consider in determining whether the dismissal, whether unfair or not, was wrongful. Of course, the fact that the dismissal was summary, or the notice was short, may be a fact that the tribunal would want to take into account in determining other questions of fact, for example, what was the real reason for the dismissal, who is to be believed, and so on. ‘

Judges:

Phillips J

Citations:

[1975] ICR 405

Jurisdiction:

England and Wales

Cited by:

Cited – Stoke On Trent City Council v Savigar (Debarred) EAT 15-May-2015
EAT Unfair Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Though the Claimant’s complaint was that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 September 2022; Ref: scu.551067

Unison, Regina (on The Application of) v The Lord Chancellor: CA 26 Aug 2015

Unison brought two challenges to rules brought in to impose fees for the bringing of cases in the Employment Tribunal.
Held: The appeals were dismissed. The imposition of a fee would not constitute an interference with the right of effective access to a tribunal under EU law unless it made it impossible in practice to access the tribunal. That depended on whether the fee was unaffordable, and not on whether the payment of the fee would be a sensible use of money.
Underhill LJ saw no safe basis for ‘an inference that the decline [in the number of claims] cannot consist entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to’ Only evidence of the actual affordability of the fees in the financial circumstances of typical individuals could enable the court to reach a reliable conclusion that the fees were realistically unaffordable in some cases (ibid). Underhill LJ also rejected the arguments based on the Public Sector Equality Duty and the discrimination ground.

Judges:

Moore-Bick VP CA, Davis, Underhill LJJ

Citations:

[2015] EWCA Civ 935, [2015] WLR(D) 370, [2016] 1 CMLR 25, [2016] ICR 1, [2015] IRLR 911, [2016] 4 All ER 25

Links:

Bailii, WLRD

Statutes:

Tribunals, Courts and Enforcement Act 2007

Jurisdiction:

England and Wales

Citing:

Appeal from – Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
Appeal from – Unison (No 2), Regina (on The Application of) v The Lord Chancellor Admn 17-Dec-2014
The union sought to challenge by judicial review the systems for charges for court fees for claims brought before the employment tribunals.
Held: The challenge failed. On the evidence now available (and not available on the first challenge) . .

Cited by:

Appeal From – Unison, Regina (on The Application of) v Lord Chancellor SC 26-Jul-2017
The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 03 September 2022; Ref: scu.551704

Unison (No 2), Regina (on The Application of) v The Lord Chancellor: Admn 17 Dec 2014

The union sought to challenge by judicial review the systems for charges for court fees for claims brought before the employment tribunals.
Held: The challenge failed. On the evidence now available (and not available on the first challenge) the Order did not breach the principle in European law that citizens be given effective access to the courts, and nor ws their indirect discrimination against women.

Judges:

Elias LJ, Foskett J

Citations:

[2014] EWHC 4198 (Admin), [2015] 2 CMLR 4, [2015] ICR 390, [2014] WLR(D) 543, [2015] IRLR 99

Links:

Bailii, WLRD

Statutes:

Tribunals Courts and Enforcement Act 2007 42

Jurisdiction:

England and Wales

Citing:

See Also – Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .

Cited by:

Appeal from – Unison, Regina (on The Application of) v The Lord Chancellor CA 26-Aug-2015
Unison brought two challenges to rules brought in to impose fees for the bringing of cases in the Employment Tribunal.
Held: The appeals were dismissed. The imposition of a fee would not constitute an interference with the right of effective . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 03 September 2022; Ref: scu.540231

Unison, Regina (on The Application of) v The Lord Chancellor and Another: Admn 7 Feb 2014

The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union principles of effectiveness or equivalence. Althought the new system was expensive for litigants it was not so to the extent that it made access to the courts either virtually impossible or even excessively difficult. The claim itself was premature, because it was wrong to reach a decision on the impact of the Fees Order on the basis of predictions rather than wait until it was possible to see what its effect had been in practice.

Judges:

Moses LJ, Irwin J

Citations:

[2014] ICR 498, [2014] IRLR 266, [2014] WLR(D) 57, [2014] EWHC 218 (Admin), [2014] Eq LR 215

Links:

Bailii, WLRD

Statutes:

Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, Courts and Tribunals Fee Remissions Order 2013

Jurisdiction:

England and Wales

Citing:

Cited – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
Cited – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .
Cited – Cofidis SA v Jean-Louis Fredout ECJ 21-Nov-2002
ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Action brought by a seller or supplier – National provision prohibiting the national court from finding a term unfair, of its own motion or following . .
Cited – Deutsche Telekom Ag v Vick and Another; Same v Schroder; Deutsche Post Ag v Sievers and Another ECJ 28-Mar-2000
The social purposes of the Treaty in article 119 (141 EC) overrode the economic aims of the Treaty. Accordingly the article did not preclude a requirement upon a member state which imposed obligations to satisfy that social aim, even though it migt . .
Cited – Podbielski And Ppu Polpure v Poland ECHR 26-Jul-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings.
Cited – Weissman And Others v Romania ECHR 2-Dec-2011
The Court found violations of the Convention concerning lack of access to a court and the breach of the applicant’s rights to peaceful enjoyment of their possession (violations of Article 6, paragraph 1, and Article 1 of Protocol No. 1) (see details . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .

Cited by:

See Also – Unison (No 2), Regina (on The Application of) v The Lord Chancellor Admn 17-Dec-2014
The union sought to challenge by judicial review the systems for charges for court fees for claims brought before the employment tribunals.
Held: The challenge failed. On the evidence now available (and not available on the first challenge) . .
Appeal from – Unison, Regina (on The Application of) v The Lord Chancellor CA 26-Aug-2015
Unison brought two challenges to rules brought in to impose fees for the bringing of cases in the Employment Tribunal.
Held: The appeals were dismissed. The imposition of a fee would not constitute an interference with the right of effective . .
At Admn (1) – Unison, Regina (on The Application of) v Lord Chancellor SC 26-Jul-2017
The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The . .
Lists of cited by and citing cases may be incomplete.

Employment, European, Discrimination

Updated: 03 September 2022; Ref: scu.521079

Tamina v NHS Professionals: EAT 18 Nov 2010

EAT PRACTICE AND PROCEDURE – Time for appealing
The Appellant was one and 16 days late in lodging a Notice of Appeal against two interim case management orders. He was articulate and assiduous in legal research on tribunal procedure. No exceptional reason was found to extend time. Harper v Hopkins applied.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0274 – 10 – 1811

Links:

Bailii

Citing:

Cited – Harper and Another v Hopkins CA 12-Oct-2010
The appellants appealed against refusal by the EAT of an extension of time for them to appeal.
Held: The court could take some account of the prospects of success in deciding whether to extend time. . .
Cited – Sian v Abbey National Plc EAT 25-Jun-2003
EAT Practice and Procedure – Time for appealing . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 September 2022; Ref: scu.430640

Raithatha v Leicester City Council: EAT 7 Oct 2010

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
A grievance for the purposes of the now repealed section 32 Employment Act 2002 could be constituted by a letter incorporating the particulars of complaint in a previously lodged ET1 in other proceedings. Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07 distinguished. The inclusion of other issues did not distract from the status of the letter as raising a grievance.
Canary Wharf v Edebe [2006] IRLR 416 followed.

Citations:

[2010] UKEAT 0303 – 10 – 0710

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430638

Bridgewater Paper Co v Hillyer and Another: EAT 10 Feb 2010

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
S.98A(2) ERA
On its true construction the Respondent’s Long Term Disability Scheme applied to employees while their medical condition was such as to render them permanently incapable of employment in any capacity rather than incapable of working for the Respondent.

Citations:

[2010] UKEAT 0376 – 09 – 1002

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430637

Pickard v Lynn Hughes (T/A The Tanning and Beauty Kabin): EAT 28 Jan 2011

EAT JURISDICTIONAL POINTS – Fraud and illegality
Judge dismissed claim under National Minimum Wage Regulations on the basis that employee had ‘colluded’ in her employer’s failure to pay PAYE.
Held: No sufficient basis for such a finding.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0185 – 10 – 2801

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430529

Ahmed v Metroline Travel Ltd: EAT 8 Feb 2011

EAT DISABILITY DISCRIMINATION – Disability
The Claimant appealed against an Employment Tribunal decision, on a pre-hearing review, that he did not suffer from a disability within the meaning of the DDA 1995. The decision was upheld. The case had turned on the credibility and reliability of the Claimant’s account of his injury and its effects upon him and the ET did not accept his evidence. No errors of law were identified in the ET’s approach. Criticism of the ET’s failure to refer expressly to the 2006 Guidance was found to be misplaced in circumstances where the Claimant’s credibility and disputed facts lay at the heart of the case.

Judges:

Cox J

Citations:

[2011] UKEAT 0400 – 10 – 0802

Links:

Bailii

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.430530

Honda of The UK Manufacturing Ltd v Gobby: EAT 3 Feb 2011

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
Honda appealed a finding of unfair dismissal. There was a cross appeal from the failure of the Employment Tribunal to make a compensatory award. The Claimant was summarily dismissed for gross misconduct. The Claimant faced two charges: fraud in using a company credit card and making inconsistent statements about what the card was used for. The Claimant was dismissed on these charges. On appeal the dismissal was upheld but the ET Reasons were internally inconsistent as to whether the decision to dismiss was upheld for making misleading statements and for fraud or for making such statements and for breach of company credit card rules but not fraud. On a fair reading of the Reasons the finding by the ET as to the reason for dismissal could not be identified. There were other errors in the Reasons including substitution: the ET said that they did not believe the Claimant had been fraudulent. Appeal allowed because the ET failed to make a finding as to the reason for the dismissal. The Reasons did not begin to comply with English v Emery Reimbold and Strick Ltd [2003] IRLR 710. Cross appeal academic. Case remitted for rehearing to a differently constituted ET.

Judges:

Slade J

Citations:

[2011] UKEAT 0264 – 10 – 0302

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430531

West Dunbartonshire Council v Smith and Others: EAT 13 Jan 2011

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
EQUAL PAY ACT
Equal Pay. Statutory grievance procedure (standard procedure). Where comparators in ET1 different from comparators specified in earlier grievances and some forms ET1 contained some ‘equal value’ claims by reference to comparators who were not said to do work of equal value in grievances but were said to do ‘work rated as equivalent’. Employment Tribunal had not carried out a qualitative exercise to assess correlation of complaints; it had erred in law in approaching matters on the basis that the decision in Suffolk Mental Health Partnership NHS Trust v Hurst and others, Mid Staffordshire NHS Foundation Trust v Kaur and others and Arnold v Sandwell Metropolitan Borough Council [2009] IRLR 12, required her to hold that the requirements of section 32 of the Employment Act 2002 had been satisfied. On appeal, claims remitted to Employment Tribunal to carry out the comparative exercise of assessing whether or not the grievances and forms ET1 were essentially the same complaints.

Judges:

Smith J

Citations:

[2011] UKEAT 0029 – 10 – 1301

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430552

Bournemouth Borough Council v Leadbeater: EAT 11 Mar 2011

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Respondent brought unfair dismissal proceedings. The Appellant failed to serve a Response. A default judgement was entered and the Appellant applied to set it aside by a letter of 18 January 2010 in which it was said that ‘it would be justifiable on the grounds of reason and justice to . . accept the [Appellant’s] response’.
The Employment Judge found (a) that the letter did not contain a request for an extension as required by rule 33(2) of the Employment Tribunal Rules Procedure 2004; and (b) the application to set aside the default judgment should be refused.
Held (Allowing the appeal):
1. The letter of 18 January 2011 contained an implied request for an extension of time for serving the Response;
2. An implied request would suffice and would comply with rule 33(2) of the Employment Tribunal Rules Procedure 2004;
3. The appropriate principles for considering whether the default judgment should be set aside are not merely those set out in rule 33(5) and (6) of the Employment Tribunal Rules Procedure 2004 but also those set out in Kwik Save Stores Ltd v Swain [1997] ICR 49, 54-55; and
4. The application of those principles meant that the default judgment should be set aside.

Judges:

Silber J

Citations:

[2011] UKEAT 0010 – 11 – 1103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 September 2022; Ref: scu.430532

Brill v Interactive Business Communications Ltd: CA 9 Dec 2010

The claimant had issued proceedings for unfair dismissal, but his appeal against refusal of permission to amend his claim to allow a claim for disability discrimination had succeeded at the EAT. At the time when the claim had been made, the law allowing claims for associative disability had not been recognised (Attridge).
Held: The employer’s appeal succeeded. The amended claim had no prospect of success and should not be allowed to proceed.

Citations:

[2010] EWCA Civ 1604

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – S. Coleman v Attridge Law, Steve Law ECJ 17-Jul-2008
ECJ Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment related to . .
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.430486

First Scottish Searching Services Ltd v McDine and Another: EAT 17 Feb 2011

EAT REDUNDANCY – Fairness
Redundancy dismissals. Employment Tribunal found dismissals following a TUPE transfer to be unfair having scrutinised the selection system used and found that there was a risk of unfairness in the absence of ‘some system for moderating’ two sets of scores for two groups of employees – one group having previously been in the employment of the transferee (the Respondent) and the other having previously been in the employment of one of two transferor companies. The Tribunal did not further explain what they had in mind when referring to ‘moderation’. There were no findings of the risk identified having given rise to actual inconsistency as between the two sets of scores or of what would have been liable to have been the outcome if some system of moderation had been applied. On appeal found that the Tribunal had erred in law. It was not open to them to conclude that the dismissal of the Claimants was unfair by reason of the risk identified by them.

Citations:

[2011] UKEAT 0051 – 10 – 1702

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430454

Nunn v Royal Mail Group Ltd: CA 10 Mar 2011

Renewed application for permission to appeal the decision of the Employment Appeal Tribunal (EAT) dismissing the applicant’s claim appeal from the decision of an employment tribunal (ET) which had dismissed his claim for unfair dismissal.

Judges:

Smith LJ

Citations:

[2011] EWCA Civ 244

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 September 2022; Ref: scu.430468

Harper and Another v Hopkins: CA 12 Oct 2010

The appellants appealed against refusal by the EAT of an extension of time for them to appeal.
Held: The court could take some account of the prospects of success in deciding whether to extend time.

Judges:

Pill, Rimer, Black LLJ

Citations:

[2010] EWCA Civ 1246

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Aziz v Bethnal Green City Challenge Company Limited CA 25-May-1999
The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
Held: Permission to appeal was refused. Sir . .

Cited by:

Cited – Tamina v NHS Professionals EAT 18-Nov-2010
EAT PRACTICE AND PROCEDURE – Time for appealing
The Appellant was one and 16 days late in lodging a Notice of Appeal against two interim case management orders. He was articulate and assiduous in legal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 September 2022; Ref: scu.430477

Carr Gomm Scotland Ltd v Sneddon: EAT 3 Feb 2011

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – misconduct. Tribunal found that dismissal of care worker unfair where one incident of misconduct was admitted and there was what they referred to as uncorroborated evidence regarding another incident – that lack of corroboration meant that the employer did not have sufficient grounds for their belief that the misconduct occurred, the first incident did not, on its own, justify dismissal, the second incident on its own did not in any event justify dismissal, there was no indication of how the dismissing executive had weighed the evidence, and the appeal panel had taken account of new matters and did not carry out further enquiry. On appeal, Tribunal’s finding reversed. Submission accepted that the Tribunal had misunderstood and misapplied the facts so as to reach a conclusion which no properly directed Tribunal could have reached. There was circumstantial evidence to support the direct evidence regarding the first incident and sufficient evidence as a whole to justify the employer’s belief that the Claimant was guilty of gross misconduct. Dismissal was within the range of reasonable responses in all the circumstances. Judgment of Employment Tribunal reversed.

Citations:

[2011] UKEAT 0031 – 10 – 0302

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430453

Amazon.Co.Uk.Ltd v Hurdus: EAT 10 Feb 2011

EATR UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal found dismissal for redundancy reason unfair under s98(4) Employment Rights Act 1996 on two grounds; (i) selection (ii) alternative employment. As to (i) ET substituted own view as to a fair selection procedure and as to (ii) failed to consider whether employer’s attempts to find alternative employment for redundant employee fell within band of reasonableness.
Appeal allowed; ET decision reversed; finding of fair dismissal substituted.

Citations:

[2011] UKEAT 0377 – 10 – 1002

Links:

Bailii

Employment

Updated: 03 September 2022; Ref: scu.430452

Ministry of Defence v Wallis and Grocott: CA 8 Mar 2011

Mrs Wallis was employed by the Ministry of Defence at the international school attached to SHAPE in Belgium. Mrs Grocott was employed by the Ministry in the British section of the Armed Forces North International School in the Netherlands. Both SHAPE and JFC are entities within the structure of NATO. They were recruited because they were the wives of forces personnel. Both were dismissed when their husbands left the armed forces. In the agreed facts, the Ministry saw it desirable for the harmony of the family life of forces members, or the ancillary civilian component, that there are employment opportunities for their spouses and other dependants. Their employments were governed by English law and the Ministry reassure such employees that their terms and conditions were essentially English. They were not ‘directly employed labour’, those engaged locally with the help of the host state, on local (host state) labour terms, regardless of their nationality, and pay local taxes.
The employment judge rejected the argument that the women were working within a British enclave; they were working within an international enclave. However, their employment was so closely connected to England as to be within section 94(1) of the Employment Rights Act 1996. They were ‘piggy-backed’ by their husbands into the same terms and conditions as employees of the British armed forces posted to serve abroad, within the ‘Botham’ exception. They were in a quite different position from the locally engaged ‘directly employed labour’ such as Mrs Bryant: Mrs Bryant’s connection was the fortuitous one of nationality in what would otherwise be a standard case of directly employed labour.
Held: The reasoning was accepted. Elias LJ said: ‘They were the spouses of persons who formed part of a British contingent working in an international enclave, and they obtained their employment only because of that relationship. In my judgment they have equally strong connections with Great Britain and British employment law as those employed in British enclaves abroad’.
Mummery LJ rejected the Ministry’s submission that this would be to ‘export’ British unfair dismissal law to a foreign country and contrary to the principles of sovereignty and equality of states in international law: ‘Considerations of international comity could not possibly affect the claimants’ husbands’ access to an employment tribunal for unfair dismissal from the armed forces and I do not see how they could affect claims by the claimants if there is a sufficiently strong connection of their employment to Great Britain and its unfair dismissal law’. He explained the correct approach of national courts to the interpretation of European Directives: ‘It is the function of the national courts to interpret the statutory provisions of domestic law, so far as it is possible to do so, to be compatible with the Directive . . If a compatible construction is not possible then effect must be given to the directly effective superior norms of the Directive. Domestic courts are required to disapply incompatible provisions of domestic law to the extent necessary to give effect to the directly enforceable rights derived from the Directive or other EU measure.’

Judges:

Mummery, Etherton, Elias LJJ

Citations:

[2011] EWCA Civ 231, [2011] 2 CMLR 42, [2011] ICR 617

Links:

Bailii

Statutes:

Employment Rights Act 1996 94(1) 230(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Ministry of Defence v Wallis and Another EAT 30-Jul-2010
EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
The Claimants were wives of service personnel working at NATO headquarters in Belgium and in the Netherlands – Because of that status they were . .

Cited by:

Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
See Also – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.430368

Claes (Social Policy) C-235/10: ECJ 3 Mar 2011

ECJ References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator

Citations:

[2011] EUECJ C-235/10

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 03 September 2022; Ref: scu.430330

Claes (Social Policy) C-237/10: ECJ 3 Mar 2011

ECJ References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator

Citations:

C-237/10, [2011] EUECJ C-237/10

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 03 September 2022; Ref: scu.430332

Claes (Social Policy) C-236/10: ECJ 3 Mar 2011

ECJ References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator

Citations:

[2011] EUECJ C-236/10

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 03 September 2022; Ref: scu.430331