(Industrial Tribunal)

Citations:

Unreported 22/5/98, 2305204/97

Jurisdiction:

England and Wales

Cited by:

Cited – Daly v Monsoon Accessorize EAT 30-Aug-2001
The applicant appealed a decision that she did not suffer an impairment within the Act. The test applied was correct, namely whether the applicant had a mental impairment did substantially affect her normal day-to-day activities. The tribunal had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 December 2022; Ref: scu.183464

It was not an abuse of process to seek to pursue an employment claim in the High Court where the claim begun in the tribunal was for breach of contract, unfair dismissal or redundancy, and the total amount of the claim might exceed the tribunal’s financial limits for such awards. The claimant must make it clear that he would wish to rely upon the tribunal’s findings in the High Court. A formal court order was made to show withdrawal of the claim.

Citations:

[2002] IRLR 113

Jurisdiction:

England and Wales

Cited by:

Per incuriam – Rothschild Asset Management Limited v Ako CA 1-Mar-2002
The applicant had, in earlier proceedings before the Employment Tribunal, withdrawn issues she had raised. She now sought to pursue them, and the respondent asserted that she was estopped from doing so, and that the matter was res judicata. The . .
Cited – London Borough of Enfield v Sivanandan CA 20-Jan-2005
The employee first issued a claim in the employment tribunal, and then in the High Court. The defendant company argued that the tribunal proceedings were not concluded before the High Court proceedings were issued, but only later when they were . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 December 2022; Ref: scu.182856

rights of foster carers to form a trade union

Judges:

Lord Justice Underhill

Citations:

[2021] EWCA Civ 548

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.661921

Decision following a rule 3(10) hearing in respect of two proposed appeals by the Claimant, both appeals having failed to pass the paper sift under rule 3(7). The question under rule 3(10) of the EAT Rules is whether any further action should be taken on either or both of the proposed appeals, which depends on whether, contrary to the view of the sift judge, either or both of them discloses reasonable grounds for bringing the appeals.

Citations:

[2020] UKEAT 0521 – 20 – 2511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.661664

Two appeals against the order of an employment tribunal which had revisited the order of an earlier tribunal of equivalent jurisdiction, in the absence of a material change in circumstances, or the original order being based on a material omission or mistreatment, or some other substantial reason necessitating the interference, would be allowed. The orders of the original employment tribunal would be restored and a preliminary hearing would take place before a fresh employment tribunal.
Earlier authorities relating to applications to strike out, at a preliminary hearing, claims which assert a continuing act but are said by the respondent to be time-barred, were reviewed and qualified.

Citations:

[2020] UKEAT 0246 – 19 – 1812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.661671

The Claimant was dismissed on 29 March 2019. He maintained that the dismissal was unfair and contacted ACAS on 25 June 2019. ACAS informed him on 2 August 2019 that his employer did not wish to continue with the conciliation process and a certificate was emailed to him that day. The email was not received for some reason but the primary limitation period (as extended by section 207B(4) of the Employment Rights Act 1996) expired on 2 September 2019. On 3 September 2019 the Claimant contacted ACAS, obtained a copy of the certificate and presented a claim on 5 September 2019, three days out of time. The EJ extended time under section 111(2)(b) on the basis that it was not reasonably practicable for the Claimant to have presented the claim by 2 September 2019.
The EAT found that based on his reasoning it was apparent that the EJ had not properly addressed the question whether it would have been ‘reasonably practicable’ for the Claimant to have presented the claim in time and the issue was accordingly remitted to be considered again by the ET.

Citations:

[2020] UKEAT 0163 – 20 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.661675

The Claimant was found to have been unfairly dismissed, and a re-engagement order was made in August 2018 which contained a formula for calculating the sum payable to the Claimant. The Claimant was not re-engaged, and at a subsequent remedy hearing in January he was awarded the sum of pounds 947,585.20, less tax and National Insurance. The ET rejected his claim for interest on the sum which would have been payable under the August 2018 re-engagement Order. The Claimant appealed against that finding.
The EAT rejected the appeal. It held that, although the re-engagement order contained an order to pay the Claimant a sum of money, that sum was conditional upon re-engagement having been complied with, or more accurately, ‘taking place’. ‘Non-compliance’ suggests a breach, when in reality an order for re-engagement can legitimately be ignored, on pain of specified consequences. The monetary part of the August 2018 order was, in the words of s115(2) ERA 1996, part of ‘the terms on which the re-engagement is to take place.’ As it did not take place, section 117 became engaged. This provides for distinct orders to be made if a claimant is not re-engaged. That order was duly made in January 2019, whereupon the 2018 Award fell away. Interest is not payable on a conditional award, when the condition fails.

Citations:

[2020] UKEAT 0208 – 19 – 0105,

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.661650

The Claimant was unfairly dismissed. He was found entitled to compensation. The Tribunal awarded compensation subject to a 30% reduction in respect of a variety of matters that the Tribunal considered necessitated a reduction to the award of compensation. The Tribunal accepted that the Claimant suffered an ongoing wage loss in that his new employment that was less remunerative than that which he had enjoyed with the Respondents. It terminated that loss when, at the end of his probationary period, the Claimant failed to secure a permanent contract with his new employer. Held that the authorities supported the proposition that wage loss should not be calculated on a broad-brush approach if possible and that there was a more objective method of calculating loss based on the periods of time the Claimant had been out of work or suffering differential wage loss. In this situation the Tribunal had erred in applying a percentage reduction. Held further that there was no rational basis for terminating the Claimant’s ongoing wage loss when he failed to secure a permanent contract. The Employment Appeal Tribunal ordered the Tribunal to reassess wage loss and pension loss.

Citations:

[2021] UKEAT 0047 – 19 – 1901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.661684

(Trinidad and Tobago) Conditions of employment of senior fire officers

Citations:

[2020] UKPC 12

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.651112

The Claimant in the Employment Tribunal was present when a colleague made a remark which included a reference to ISIS. She complained that this amounted to harassment by way of conduct related to race, identified by her for this purpose as her own race of being British Asian Indian. The Tribunal upheld the complaint and the First Respondent (the employer) appealed.
Held: The Tribunal erred because:
(1) It did not make a clear and distinct finding that the conduct related to race, as opposed to addressing the other elements of the definition of harassment;
(2) If it did consider that the conduct related to race, it appeared to have done so on the basis of its view that the ‘perception of ISIS in the minds of a significant proportion of the general public is that it is an international organisation connected with Asian people, in particular, those in such areas as Pakistan, Afghanistan and Iran’. But, if so:
(a) That was not a proper finding, because there was no evidence before the Tribunal to support it. It was not a matter of which it could take judicial notice;
(b) In any event the Tribunal had to decide for itself whether the conduct, and, in this case specifically the making of a reference to ISIS, related to race, as opposed to relying on what it took to be the public perception; and
(c) In any event it was unfair to the First Respondent to reply upon this proposition, because it had not been put forward, or canvassed, by either the Claimant or the Tribunal during the course of the hearing.
(3) The Appeal would therefore be allowed, and the decision upholding this complaint, and the associated award, quashed. On the evidence before the Tribunal, and the facts as found, the Tribunal, correctly applying the law, could not have properly concluded that this was conduct related to race, as alleged. The matter would therefore not be remitted.

Citations:

[2019] UKEAT 0039 – 19 – 2211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.650906

The Claimant indicated that he had a disability in his ET1 and requested some adjustments including permission to use a recording device as his condition made it difficult for him to take contemporaneous notes. The Tribunal indicated that an application for permission should be made at the preliminary hearing although it was also stated that the application would be considered before the hearing if the requisite information was provided. The Claimant appealed on the grounds that he should not have to make an application, that the Tribunal erred in failing to consider the matter before the preliminary hearing and in failing to consider that the Claimant would be in contempt of court if he attempted to bring a recording device into the building before permission was granted.
Held, dismissing the appeal, that the Tribunal was entitled to deal with the application at a hearing rather than on the papers. There was no error of law in not considering the matter in advance of the hearing although the Tribunal had not precluded that course in any event. Finally, the Tribunal’s direction that the application to record be considered at a hearing implicitly gave permission to bring the equipment to court pending leave to record being given. In any event, there is unlikely to be a contempt of court within the meaning of s. 9 of the Contempt of Court Act 1981 where a person brings a device, e.g. a mobile phone, to court for a purpose other than to use it to record sound or subject to the Tribunal’s permission to do so.

Citations:

[2019] UKEAT 0070 – 19 – 1607

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.650887

HARRASSMENT – Conduct
The tribunal erred in law in deciding that the respondent could be liable for harassment of the claimant by the third parties, which the respondent had not taken seriously and had failed to prevent and failed properly to address, without any finding that the respondent’s officers themselves had any discriminatory motivation.
The matter would be remitted to the same tribunal for further consideration.

Citations:

[2019] UKEAT 0197 – 19 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 December 2022; Ref: scu.650909

Citations:

[2009] ScotCS CSOH – 109

Links:

Bailii

Jurisdiction:

Scotland

Employment

Updated: 30 November 2022; Ref: scu.361485

Refusal to extend time for appeal

Citations:

[2008] EWCA Civ 327

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.266784

Citations:

[2000] UKEAT 647 – 00 – 0711

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.265786

Judges:

Lord Justice Dyson

Citations:

[2008] EWCA Civ 159

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.266128

Citations:

[2000] EAT 412 – 99 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.264699

EAT Contract of Employment: Wrongful Dismissal and Unfair Dismissal: Reason for Dismissal including Substantial Other Reason
Appellant was dismissed for writing a letter confirming an offer of sponsorship. He had been told not to write that letter (though the offer of sponsorship had been approved by the employer). His case was that he had written the letter having forgotten this instruction not to do so owing to the pressure of work. Employment Tribunal held no evidence of ‘malice’ but a ‘very clear breach of a very clear instruction’ that amounted to gross misconduct. No finding whether he had forgotten the instruction or not. The employer’s policy defined ‘gross misconduct’ as including ‘flagrant refusal to obey a reasonable instruction’. In the absence of specific findings as to how the Appellant came to write the letter, the case was remitted for re-hearing. [Quare (not raised before Employment Tribunal on first hearing) was this instruction not to write the letter a ‘reasonable instruction’ in the circumstances].

Judges:

Reid QC

Citations:

UKEAT/0583/05, [2006] UKEAT 0583 – 05 – 2601

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.240205

Citations:

[2001] EWCA Civ 1769

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.201514

Citations:

[2000] IRLR 170

Jurisdiction:

England and Wales

Cited by:

Cited – Ashraf v Francis W Birkett and Sons Ltd EAT 20-Jul-2001
The employee had been selected for redundancy. He claimed both race and disability discrimination. He appealed a rejection of race discrimination claim. He said that the Meek case required the decision to deal with any significant of conflict of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2022; Ref: scu.183466

Citations:

[2003] EWCA Civ 748

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – The Post Office v K J Burkett EAT 12-Jul-2002
EAT Unfair Dismissal – Other
EAT Unfair Dismissal – Other . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 November 2022; Ref: scu.183392

Citations:

[2003] EAT 309 – 03 – 1604, [2003] UKEAT 309 – 03 – 1604

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.189396

The Claimant’s claim on a proper construction always included a claim for unfair dismissal based on protected disclosures, which appeared to be in time. In such a case the cause of action is unfair dismissal, not the making of protected disclosures. The ET therefore erred in law by treating the addition of further particulars of protected disclosures as an application to amend the claim by adding a new cause of action out of time.

Citations:

[2020] UKEAT 0308 – 19 – 1211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.661660

TRANSFER OF UNDERTAKINGS; service provision change; multiple transferees
A client local authority (‘N’) re-tendered the work for replacement of kitchens within its social housing stock. All of the work under the previous contract had been carried out by a single contractor (‘A’). A group of A’s employees had worked exclusively on the contract between N and A. Latterly those employees worked in two ‘teams’, each of which was capable of working independently of the other. When the work was re-tendered, it was split by N on geographical lines into two separate contracts which were awarded to two new contractors.
The Tribunal’s decision that there had been a service provision change under Regulation 3 of TUPE was not challenged on appeal. The Appellants submitted, however, that the Employment Tribunal had erred in its decision as to the allocation of A’s employees between the two incoming contractors. It was submitted that the Tribunal had failed to consider the respective positions of the employees individually and had failed to consider that some or all of the employees may not have transferred at all. It was further submitted that the Tribunal had placed undue weight on spreadsheets prepared by A which had not been spoken to in evidence by their author.
Between the date of the Tribunal’s Judgment and the hearing of the appeal, the Court of Justice of the European Union issued its decision in Iss Facility Services NV v. Govaerts [2020] ICR 1115. A further ground of appeal was added by amendment based upon the Govaerts decision.
Held:
Whilst the Tribunal had correctly regarded itself as being bound at the time of its Judgment by Kimberley Group Housing v. Hambley [2008] IRLR 682 and Duncan Web (Offset) Maidstone Limited v. Cooper [1995] IRLR 633, those cases must now be read subject to Govaerts. The appeal was accordingly allowed to the extent of setting aside paragraphs 2, 4 and 5 of the Tribunal’s Judgment and remitting the case to the same Tribunal to consider the application of the decision in Govaerts based upon such further evidence and submissions as may be necessary.

Citations:

[2021] UKEAT 0023 – 19 – 2502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.661699

The Claimant applied for specific disclosure in relation to documents arising from an investigation into a ‘Post Termination Whistleblowing Document’ submitted by her after the termination of her employment. The Respondents maintained that no relevant documents arose from investigation. The Employment Judge made an order for disclosure of such documents in this category as were relevant.
The Respondents appealed on the grounds that the Employment Judge had failed to determine whether the documents were relevant but had nevertheless made an order for specific disclosure.
Held: appeal allowed. Guidance as to the determination of applications for specific disclosure where relevance is disputed.

Citations:

[2020] UKEAT 0075 – 20 – 1510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 November 2022; Ref: scu.661655

(Antigua and Barbuda) Appeal by the employer against a decision of the Eastern Caribbean Court of Appeal in unfair dismissal proceedings.

Citations:

[2020] UKPC 9

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.651110

CONTRACT OF EMPLOYMENT – Damages for breach of contract
UNFAIR DISMISSAL – Constructive dismissal
The claimant brought a claim for breach of contract relying on non-payment of a bonus he said was due to him; and for unfair (constructive) dismissal, relying on his resignation in response to a repudiatory breach of his contract of employment. The respondent denied any breach and asserted that the claimant had affirmed his contract and had resigned, but not in response to any breach.
The employment judge had not erred in construing the bonus clause conferring a discretion to pay up to 20 per cent of salary each year. The clause did not, on its true construction, exclude the financial position and performance of the employer from the scope of permissible considerations relevant to the exercise of the employer’s discretion. The judge correctly so decided.
The judge (as the respondent accepted) erred when assessing how close the claimant came to achieving the level of profit he had forecast for the year 2017, in respect of the part of the respondent’s business for which he was responsible. She mistook the turnover figure the claimant had forecast (Euros 3.25 million) for the profit figure (Euros 1.79 million).
The actual profit in 2017 was Euro 1.68 million. The claimant had therefore fallen Euros 110,000 short of his profit target, i.e. he had achieved about 94.5 per cent of his target, not 51.6 per cent as the judge found. Although the respondent did not make the same error when considering whether to pay bonus, the judge’s error was material to her conclusion that the respondent’s exercise of its discretion not to pay any bonus in 2018 was rational and lawful, not perverse.
The judge found that if, contrary to her primary decision, the decision not to pay bonus was a breach of contract, the claimant was entitled to a maximum of pounds 19,500 (20 per cent of salary) but would have resigned unless paid a sum close to pounds 55,000, which he was demanding and believed he was entitled to. She reasoned that his unfair dismissal claim must therefore fail anyway because he would not have resigned in response to a breach of contract.
That finding was not justified on the pleadings and the evidence and (applying the principles in Chen v. Ng [2017] UKPC 27) was procedurally unfair. The respondent had not relied on the judge’s proposition; it was contrary to the claimant’s case and was not properly put to the claimant during his evidence, either by the respondent or the judge. Nor was it an obvious and permissible inference from the documents and evidence as a whole.
The claims for breach of contract and unfair dismissal would therefore be remitted for redetermination in the light of the EAT’s judgment. It was appropriate to remit the issues to a different employment judge in view of the finding of procedural unfairness, but it was not necessary for all the evidence to be heard again.

Citations:

[2020] UKEAT 0017 – 20 – 1505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650921

The Claimant (a Hindu police officer) claimed religious discrimination arising out of a decision taken by a Chief Inspector in 2018 that he could not transfer to the Brent area because of his long association with the Hindu Temple in Neasden. A year later in 2019 a different Chief Inspector indicated that the rationale for the earlier decision no longer applied and that he could after all apply for the transfer. The Claimant sought to rely on this change of position in support of his case of discrimination and sought disclosure of documents related to the 2019 decision.
The EJ refused the application and ruled that the Claimant could not rely on the 2019 decision.
The EJ’s decision relied in part on a finding that there had been a change of circumstances in that the Claimant had given up the role of deputy security manager at the Temple between the 2018 and 2019 decisions. On analysis of the 2018 emails it was clear that that was a factual error since the Claimant had informed the Chief Inspector of his resignation as deputy security manager several days before the decision was communicated to him.
Since the EJ’s decision had proceeded on a false basis it could not stand and the EAT set it aside and remitted it to be decided by a new EJ. The EAT’s decision applied both in relation to the disclosure application and the refusal to allow the Claimant to rely on the 2019 decision, which was expressed to be contingent on the disclosure application.

Citations:

[2020] UKEAT 0301 – 19 – 1103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650919

The Claimants were directors of Lancer and beneficial owners of Lancer’s holding company; Messrs Ferguson and Kevill were also employees of Lancer and Messrs Lax and Pull were employed by companies which they controlled which contracted their services to Lancer; there were seven other Lancer employees. Lancer’s sole business was managing the Berkeley Square Estate on behalf of the owners under a management agreement.
The owners gave 12 months’ notice to terminate the agreement and appointed a new company to manager the Estate, Astrea. There was no dispute that this involved a TUPE transfer from Lancer to Astrea.
Shortly before the transfer, the Claimants arranged for their employment contracts to be substantially improved to provide for guaranteed bonus payments and generous new termination payments. The EJ found that these changes were made ‘by reason of’ the anticipated transfer and had no legitimate commercial purpose for Lancer but were designed to compensate the Claimants for loss of Lancer’s business, dishonestly taking undue advantage of TUPE by awarding themselves remuneration knowing it would be paid at the expense of Astrea. Astrea dismissed Messrs Ferguson and Kevill on or shortly after transfer and did not accept that Messrs Lee and Pull transferred under TUPE or alternatively also dismissed them.
The Claimants brought claims against Astrea based on TUPE for unfair dismissal and contractual termination payments and for ‘compensation payments’ for breach of reg 13(4) of TUPE under which Astrea was required to provide ‘measures’ information to Lancer. Following a five-day hearing the EJ found inter alia:
(1) that the new contractual terms were void ‘considering reg 4(4) TUPE in the light of the [EU] abuse of law principle’;
(2) that Messrs Lax and Pull did not transfer to Astrea under reg 4(1) because they were not assigned to the organised grouping of employees engaged in the management of the Estate;
(3) that Mr Kevill was unfairly dismissed by virtue of reg 7(1) but that his compensatory award should be reduced by 100% under s 123(6) of ERA and, under the Polkey principle, that he would have been (fairly) dismissed by Astrea within three weeks of the transfer in any event;
(4) that Astrea had breached reg 13(4) of TUPE by failing to provide ‘measures’ information in good time and that ‘appropriate compensation’ should be awarded to all four Claimants for that breach amounting to three weeks’ pay for each of them.
On appeal by the Claimants against these findings, the EAT decided that:
(1) (a) reg 4(4) of TUPE, properly interpreted in a ‘broad purposive’ way consistently with EU law, rendered void all contractual variations made because of a transfer and not just those adverse to the employee as contended by the Claimants;
(b) if that interpretation was wrong, on the facts Astrea could rely on the EU abuse of law principle to prevent Claimants relying on the new contractual terms since (i) the purpose of the EU rules (safeguarding employee rights) had not been achieved, but rather some other purpose (ie substantially improving the rights of the Claimants) and (ii) their intention was to obtain an improper advantage by artificially obtaining variations to their contracts of employment with Lancer in contemplation of the transfer;
(2) the EJ had erred in her approach to the issue whether Messrs Lax and Pull were ‘assigned’ to the organised grouping of employees managing the Estate so as to be transferred under TUPE, in particular by concentrating on how much work they were doing rather than on whether they were ‘organisationally’ assigned to the relevant grouping;
(3) (a) the EJ failed to consider properly whether, and to what extent, Mr Kevill’s conduct had ’caused or contributed to’ his dismissal for the purposes of s123(6) of ERA; but
(b) the EJ had been entitled to make the Polkey finding which she did notwithstanding that the ‘reason’ for the putative dismissal would have been conduct before the transfer and may not have amounted to any legal wrong;
(4) (a) on a proper interpretation of reg 16(3) of TUPE on the facts of the case the EJ was entitled to find that ‘appropriate compensation’ for Astrea’s breach of reg 13(4) amounted to three weeks’ pay;
(b) on a proper interpretation of reg 15(7) it would not have been open to the EJ to award compensation to the other transferring employees who might have, but did not, bring claims under reg 15(1)(d).
The appeal was therefore dismissed save in relation to the issues at (2) and (3)(a) which were remitted to the EJ to reconsider.

Citations:

[2020] UKEAT 0139 – 19 – 1505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650920

Judges:

Lord Justice Lewison

Citations:

[2020] EWCA Civ 638

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650928

The Claimant was employed by the Respondent, a Member of the Welsh Assembly. He was suspended and later dismissed by her on the given ground of conduct. He claimed that the suspension amounted to detrimental treatment on the grounds that he had made a protected disclosure, and that he was dismissed for the reason or principal reason that he had done so.
The claimed disclosure was contained in a letter. It referred to the fact the Respondent’s brother had not been recommended for permanent appointment to a position in her office, following interview by a panel on which the Claimant had sat. It stated that her brother did not make the grade despite her having tried to manipulate the recruitment process. The Claimant’s case, among other things, was that this was a disclosure containing information which he reasonably believed tended to show that she had committed a criminal offence, in particular under the Fraud Act 2006, section 4.
The Tribunal found that the claimed disclosure did not contain sufficient specific factual information to be reasonably capable of being regarded as tending to show that a criminal offence had been committed. It was therefore not a qualifying or protected disclosure and the claims were dismissed.
The Claimant’s appeal against that decision failed. The Tribunal had correctly applied the guidance in Kilraine v London Borough of Wandsworth [2018] ICR 1850, as further recently elucidated in Simpson v Cantor Fitzgerald Europe UKEAT/0016/18/DA. It had properly found that the disclosure did not meet the threshold test of containing sufficient specific information so as to tend to show that there had been a criminal offence. The Tribunal was entitled to take a view that the assertion that the Respondent had tried to manipulate the process did not necessarily or obviously connote criminality, in particular by way of some dishonest conduct. In any event the threshold test was properly viewed as not passed, because the disclosure did not state what, specifically, the Respondent was said to have done, in fact, that amounted, in the Claimant’s view, to an attempt to manipulate the process. Without some such additional factual content, the information that the Respondent held public office, that the candidate was her brother, that there were special rules about the recruitment of family members, and that the brother would gain financially by being, or remaining, employed, was not sufficient to tend to show that a criminal offence had been committed.

Citations:

[2019] UKEAT 0044 – 19 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650902

The Employment Tribunal was right to find that it did not have jurisdiction over claims for unfair dismissal, racial discrimination, victimisation and detriment resulting from a protected disclosure brought by an Egyptian national who had been employed as a Vice Consul in the British Embassy in Cairo. She contended that the ET had jurisdiction because she worked in a ‘British enclave’, but that label was not determinative of, and indeed was not relevant to, the ‘sufficient connection question’ (as it was termed by Underhill LJ in Jeffery v British Council [2019] ICR 929). The ET’s decision was neither perverse nor irrational and it correctly applied the law as stated by Baroness Hale in Duncombe v Secretary of State for Children, Schools and Families [2011] ICR 1312:
‘The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law.’

Citations:

[2020] UKEAT 0123 – 19 – 2401

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650913

DISABILITY DISCRIMINATION
The Tribunal erred in concluding that, because it had found that the conduct of the Respondent which tipped the Claimant into resigning could not contribute to a breach of the implied duty of trust and confidence, his claim that he was constructively dismissed must fail. That would be correct only had it, properly, found that (a) there was no prior conduct by the Respondent amounting to a fundamental breach; or (b) there was, but it was affirmed. But if, in such a case, there was prior conduct amounting to a breach which was not affirmed, and which also materially contributed to the decision to resign, the claim of constructive dismissal will succeed. London Borough of Waltham Forest v Omilaju [2005] ICR 481 and Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1 considered.
On the facts found, had the Tribunal applied the law correctly, it would have found that there was a constructive dismissal. It had found that there was prior conduct which contributed to the decision to resign, and which amounted to a breach of the implied term. It could not have properly found that such conduct had been followed by affirmation. A finding of constructive dismissal was therefore substituted. The Tribunal could not properly have found such dismissal to be for a fair reason, as claimed, and a finding of unfair dismissal was also substituted.
While some claims of discrimination pre-resignation had also succeeded, the question of whether the constructive dismissal was discriminatory would be remitted for consideration by the Tribunal.
The Tribunal decided that the withholding of certain information from the claimant in connection with disciplinary charges could not amount to a ‘practice’ for the purposes of a complaint of failure to comply with the duty of reasonable adjustment, because it was not sure that the relevant individual would have so acted in all such cases. That was setting the bar too high. The Tribunal should have considered whether there was sufficient element of repetition or persistence in the Claimant’s own case, for a practice to be found. Nottingham City Transport v Harvey UKEAT/0032/12 considered. Lamb v The Business Academy Bexley UKEAT/0226/15 applied. The appeal against this decision was also upheld, and this complaint remitted to the Tribunal for further consideration.

Citations:

[2020] UKEAT 0108 – 19 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650915

The Claimant, who suffered various disabilities (Ehlers-Danlos Syndrome, Dyspraxia and Dyslexia), bought a number of complaints in Employment Tribunal (‘ET’), all of which were dismissed. The Claimant appealed against the ET’s decision in respect of three claims of discrimination by reason of a failure to make reasonable adjustments: (i) in relation to what she complained was a PCP that conventional software provided by the Respondent be used; (ii) in respect of her claim regarding a failure to provide specialist software updates; and (iii) in relation to her complaint that she suffered substantial disadvantage by not being able to access the Respondent’s guest WiFi on her lap-top.
Held: allowing the appeal
(i) The ET erred in holding that the Claimant had not demonstrated a PCP because the requirement identified only related to her. That was not how the Claimant’s case was put. Her complaint was in respect of the general requirement that employees (including her) use the conventional software supplied. Although the Claimant had been provided with specialist software, to the extent that this did not properly function, the PCP continued to apply to her. The ET had further erred in finding that a PCP that might cause the Claimant to be less efficient (hence her request for adjustments that would improve her efficiency) could not establish substantial disadvantage: being subject to a PCP that causes an employee to be less efficient might well mean they suffer a more than minor or trivial disadvantage. Moreover, the ET ruling’s in this regard could not be saved by its alternative finding that the Respondent had taken all reasonable steps to remove any substantial disadvantage: it had failed to identify the nature and extent of the substantial disadvantage in issue and was accordingly unable to determine what adjustments were reasonable (Environment Agency v Rowan [2008] ICR 218, EAT applied).
(ii) As for the specialist software updates, the ET had erred in its approach to substantial disadvantage, again failing to allow that questions of efficiency might be relevant to the determination of substantial disadvantage. It further failed to engage with the Claimant’s case that the issue was not merely whether she had been provided with functional dictation equipment – without the software updates that was not fully functional. It was no answer to find that the issue was one of ‘maintenance’: if there was an on-going obligation to provide the adjustments in issue, that would include (so far as reasonable) the maintenance of the software by way of necessary updates; the ET had failed to demonstrate engagement with this point.
(iii) The same error of approach to substantial disadvantage was apparent in relation to the third complaint – the Claimant’s lap-top access to the Respondent’s WiFi. Although the ET also said that any disadvantage in this regard was not substantial, because it took less than a month to resolve, this failed to take account of the earlier finding that the Claimant had raised a general issue regarding the ability to access WiFi over a year previously.

Citations:

[2019] UKEAT 0043 – 19 – 1710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650901

The Employment Tribunal found that the Claimant made protected disclosures in respect of the introduction of a new rota system, which he reasonably believed posed a danger to the health and safety of patients, and to be made in the public interest. Subsequent to this, concerns raised by colleagues about his alleged conduct were referred to an investigation process, during which he was placed on restricted duties. The Claimant alleged that a number of matters to do with the instigation and handling of that process amounted to detrimental treatment by the colleague at whose instigation the new rota system had been introduced, as well as by others. The Tribunal found that he did make protected disclosures, but all of his claims of detrimental treatment because of the protected disclosures failed.
Held: the Tribunal had failed properly to analyse and engage with its own findings of fact, and evaluations of the Respondent’s conduct, in various respects. That is having regard to the legal test of whether a detriment is on ‘grounds’ of a protected disclosure, to the provisions of section 48(2) Employment Rights Act 1996 on the burden of proof, and associated guidance in the authorities. A cross-appeal in respect of the Tribunal’s conclusions that there were protected disclosures was dismissed.

Citations:

[2019] UKEAT 0047 – 19 – 2309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650893

The Claimant has an underlying long-term mental health disability. It has for long periods been controlled by medication. However, there were periods during her employment with the Respondent when it became symptomatic in a way which affected her fitness to work. In early 2011, at a time when she was off sick, an OH doctor advised that the deterioration in her mental health was caused by aspects of her working environment in her current role, and that she was not fit to return to that role, but would be fit to return to a different role, which he recommended should be found for her. The Tribunal found that the Respondent could and should then have redeployed her to another suitable role that she was fit to perform, in the period from April 2011. However, it did not do so and that was found to amount to a failure to comply with the duty of reasonable adjustment.
By August 2011 the Claimant’s mental health had deteriorated to the point that she had become unfit for any role, and the Tribunal found that there was no failure to comply with the duty of reasonable adjustment thereafter. Her unfitness led to her dismissal. The Tribunal found the dismissal to be fair. The dismissal was not found to be an act of unlawful discrimination.
For the purposes of remedy for the failure to comply with the duty of reasonable adjustment, the Claimant contended that, had the Respondent complied with its duty and redeployed her, in the relevant time window, her mental health would, or might, not have then deteriorated to the point when she became unfit for any role; and her employment would, or might, not have ended when it in fact did. She applied for permission to adduce expert evidence in that connection. The Tribunal directed that, for her application to be considered, she needed to obtain and table an expert report, based solely on a review of the existing medical records. The Claimant having done so, the Tribunal, on the basis of an appraisal of that particular report, refused her application.
Held: The Tribunal had correctly adopted the test, in CPR 35, of whether expert evidence on the issue was reasonably required. But it should have decided, first, whether, in principle, expert evidence should be permitted on the issue, applying that test. If the answer to that was ‘yes’, it should then have gone on to give appropriate directions in respect of such expert evidence, taking account of the guidance in De Keyser v Wilson [2001] IRLR 324. That might have included the obtaining of a joint report, or those of experts on both sides, based on the expert(s) seeing the Claimant, as well as reviewing historic records, and the opportunity for questions to be raised of the expert(s). The Tribunal’s approach resulted in unfairness, because it proceeded in the wrong order, based its decision on its appraisal of a more limited report, and pre-empted the task of assessing the actual full expert evidence, which should have fallen to the full Tribunal at the Remedy Hearing itself.
In any event the Tribunal wrongly concluded wrongly that the limited report, and any future report, could not be of any assistance on this issue, so that the ‘reasonably required’ test was not met. The nature of this issue in this case is such that the only proper conclusion was that expert evidence is reasonably required in relation to it, and, having been requested, should have been permitted, in principle, with directions to follow. Royal Bank of Scotland v Morris UKEAT/0436/10 considered.
Accordingly, the appeal was allowed, and a decision that expert medical evidence be permitted on this issue was substituted.

Citations:

[2019] UKEAT 0114 – 19 – 1209

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650894

The employment judge had not erred or misdirected herself when refusing to extend time to bring a race discrimination claim brought three days out of time.

Citations:

[2019] UKEAT 0171 – 19 – 0312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650908

The Employment Tribunal erred in concluding that the threshold requirement for the exercise of discretion as to costs had been met.

Citations:

[2019] UKEAT 0184 – 19 – 1411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650903

UNFAIR DISMISSAL – Constructive dismissal
The case involved an unusual situation where an employee had given formal notice of resignation following, from her perception, bullying and difficult behaviour by an employee she managed. Some evidence suggested that thereafter the Respondent asked the Claimant to stay on in employment and that she did so, on condition that the other employee’s conduct was addressed. Her resignation was not formally withdrawn. Staff changed within the Respondent. The date upon which the resignation was to take effect came and went. The Claimant asserted that she assumed that she was staying in employment and that the resignation had been halted or ‘paused’. Almost a month thereafter the Respondent addressed her employment status and determined that she had resigned on notice and that she must leave employment. The Claimant asserted that the EJ had erred in its analysis of the termination of employment; assumed that resignation could only be withdrawn where the requisite agreement was initiated by the employee rather than employee or employer; erred in requiring a resignation be withdrawn by express words only rather than by way of conduct or implication; erred in focussing too heavily on the employer’s apparent errors in not progressing the resignation and failing to consider all matters, particularly how, objectively, the Respondent’s actions appeared to the Claimant.
The appeal was allowed and the matter was remitted to a differently constituted Tribunal. The Employment Judge had failed to engage with key issues about what, precisely, was said between the Claimant and others following the resignation. Without making those important determinations the Tribunal then fell into the errors articulated by the Claimant in the revised grounds of appeal.

Citations:

[2019] UKEAT 0022 – 19 – 2009

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650892

The Employment Tribunal dismissed the Claimant’s claims for discrimination, harassment, victimisation, whistleblowing detriment and unfair dismissal part of the way through the final hearing because he indicated that he was not prepared to give evidence or otherwise continue to participate in the proceedings, after the Tribunal ruled against his application to strike out the Respondent’s response and rejected his application for an adjournment to enable him to immediately appeal that decision.
It was agreed that the Claimant had not withdrawn his claims. The Tribunal’s decision was, in effect, a judgment striking out the claims on the basis that they no longer had any reasonable prospect of success, pursuant to Rule 37(1)(a), Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It was agreed that the claims could not succeed without the Claimant giving evidence in support of them.
The Employment Appeal Tribunal dismissed the appeal, accepting that in the particular circumstances the Claimant had not been deprived of a fair hearing and had been given a reasonable opportunity to make representations before his claims were struck out. He was warned by the Tribunal of the consequences if he continued to refuse to participate; he was represented by an experienced consultant; a short cooling off period was twice offered by the Tribunal and twice rejected by the Claimant and his representative; and there was nothing to indicate to the Tribunal at the time that offering a longer cooling off period would have been likely to have a significant impact.
The Employment Tribunal’s Written Reasons, though succinct, sufficiently expressed the reasons for its decision to dismiss the claims. Compliance with the requirements of Rule 62(5) had to be assessed by reference to the nature of the judgment being given.

Citations:

[2020] UKEAT 0204 – 19 – 0701

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650914

An appeal against a refusal to allow amendments to a Claimant’s ET1 was allowed, and remitted for rehearing.
Following a relatively short hearing, at which the ET was not provided with written copies of relevant authorities, it gave a ruling in which inadequate analysis was provided as to how the competing arguments for and against the making of an amendment were evaluated.

Citations:

[2020] UKEAT 0275 – 19 – 1802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650916

ET Rules 50(3) and 67
In the absence of wider written consent to disclosure of his medical information, the Employment Tribunal erred in holding that the Respondent was fixed from the outset with knowledge of one of the disabilities the Claimant had disclosed to occupational health. On the facts found by them the Employment Tribunal did not err in concluding that the relevant manager should have made further enquiries about the Claimant’s medical condition and sought his consent to the release of information about his disability which was given in his pre-employment interview with occupational health.
The Employment Tribunal failed to consider adequately or at all whether the adjustments in respect of which a claim was made were reasonable balancing any substantial disadvantage suffered by a person with the Claimant’s disability with the reasonable needs of the Respondent. The claim in relation to reasonable adjustments is remitted for decision to a differently constituted Tribunal.
The Order that the decision of the Employment Tribunal not be entered on the Register is set aside.

Citations:

[2019] UKEAT 0209 – 18 – 2307

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650889

PRACTICE AND PROCEDURE – Appearance/response
PRACTICE AND PROCEDURE – Absence of party
The Respondent did not file a response to the Claimant’s claim before the Employment Tribunal. Judgment on liability was entered and the scheduled preliminary hearing was converted to a remedy hearing. The judgment and the new notice of hearing were sent out. The Respondent did not attend the hearing. The Claimant was awarded compensation by the Employment Tribunal at that hearing. The Respondent then sought to appeal the Employment Tribunal’s decision on remedy on that basis that the claim had not come to the attention of the director of Respondent. The ET1, judgment and correspondence from the Tribunal had however been sent to the Respondent’s correct address (and at least some of that correspondence had been received at that address prior to the remedy hearing). The appeal was stayed for the Respondent to make an application for reconsideration to the Employment Tribunal, however none was made. Written reasons for the decisions on liability and remedy were not requested from the Employment Tribunal. Nor did the Respondent file, either with the Employment Tribunal or with the Employment Appeal Tribunal, an ET3 form and draft grounds of response to the claim. The Respondent’s representative did not participate in preparing the bundle for the appeal hearing, which was prepared by the Claimant. The Respondent did not file a skeleton argument and did not attend the hearing of the appeal before the Employment Appeal Tribunal, nor did its representative attend on its behalf.
The Employment Appeal Tribunal dismissed the appeal, holding that the grounds of appeal advanced disclosed no error of law on the part of the Employment Tribunal in proceeding to reach its decision on remedy as it had done in these circumstances. The case was distinguishable from Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842, [2019] ICR 201, where the Employment Tribunal had refused an application by the respondent to participate in determining remedy and had proceeded to determine remedy without a hearing. Here, there was hearing to determine remedy. The Respondent was sent notice of that hearing but did not attend. The Employment Tribunal proceeded to determine remedy in the Respondent’s absence, which was not itself an error of law.

Citations:

[2019] UKEAT 0135 – 19 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650898

The Claimant (‘C’) claimed that he had been automatically unfairly dismissed for opting out, or proposing to opt out, of working on a Sunday. The Employment Tribunal (‘the ET’) dismissed that claim. The Employment Appeal Tribunal held that, on the evidence, it was open to the ET to find that the reason or principle reason for the Claimant’s dismissal was not that he had opted out, or proposed to opt out, of working on a Sunday.

Citations:

[2019] UKEAT 0049 – 19 – 0907

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650888

Two grounds of appeal (numbered 1 and 3) from the Tribunal’s finding, on remission, that the Claimant had been wrongfully dismissed had been permitted to proceed to a full hearing. The EAT allowed both grounds of appeal. In accordance with the principles in Jafri v Lincoln College [2014] EWCA Civ 449, it substituted its own decision that the claim of wrongful dismissal failed and should be dismissed.
As to ground 1, an application of the applicable legal principles to the combined findings of fact made in the original 2017 judgment and in the 2019 judgment, following remission, rendered the Tribunal’s conclusion that the dismissal had been wrongful perverse.
As to ground 3, in determining whether the Claimant had been wrongfully dismissed, the Tribunal had erred in taking into account his long service, which, as a matter of law, was not a relevant consideration. Further and in any event, the Tribunal’s implicit conclusion that, in all the circumstances, the Claimant’s length of service tended in his favour was perverse.

Citations:

[2020] UKEAT 0212 – 19 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650912

EAT Contract of Employment – Definition of employee.

Judges:

His Honour Judge Clark

Citations:

UKEAT/0052/04

Links:

EAT

Jurisdiction:

England and Wales

Cited by:

See Also – Bunce v Postworth Ltd (T/A Skyblue) and Another EAT 2-Jul-2004
. .
See Also – Bunce v Postworth Ltd (T/A Skyblue) CA 4-May-2005
Whether agency worker was employee for unfair dismissal claim. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 November 2022; Ref: scu.257034

When considering the reasonableness of an employee’s restrictive covenant, the court must test it at the time when it was entered into. If a covenant was unreasonable it will be wholly unenforceable – not partly unenforceable to the extent of what the outcome turned out to be: ‘The defendant was in fact employed for over six years by the plaintiffs and no doubt became a valuable servant . . It is natural in those circumstances to look at what in fact happened under the agreement. But the question of the validity of a covenant in restraint of trade has to be determined at the date at which the agreement was entered into and has to be determined in the light of what may happen under the agreement, although what may happen may cover many possibilities which in the result did not happen. A covenant of this kind is invalid ab initio or valid ab initio. There cannot come a moment at which it passes from the class of invalid into that of valid covenants.’

Judges:

Diplock LJ

Citations:

[1965] 1 WLR 1366

Jurisdiction:

England and Wales

Cited by:

Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 November 2022; Ref: scu.240030

The employee was a member of a trades union which had a closed shop agreement with the respondents. The union representative had negotiated new terms with reduced holidays. The employee objected on a later redundancy.
Held: The shop steward had been elected by the members and had ostensible authority to negotiate changes in terms and the applicant was bound by the new terms.

Judges:

Lords Justice Kennedy and Mantell and Sir Swinton Thomas

Citations:

Gazette 23-May-2002, [2002] EWCA Civ 442, [2002] IRLR 476, [2002] ICR 765

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.216925

Citations:

[1997] UKEAT 846 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.207786

The claimant appealed against rejection of her claim for bullying and harassment in her capacity as a housing manager, and of her claim for constructive unfair dismissal. The claim had been rejected at a preliminary hearing as without a reasonable prospect of success on a failure to pay a deposit of 50.00 pounds.
Held: The decision appealed was a matter within the Chairman’s discretion, and the evidence suggested that it was an order within the range of proper orders for him to make.

Judges:

Hull QC HHJ

Citations:

[1994] UKEAT 641 – 94 – 1111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.210262

Citations:

[1997] UKEAT 898 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.207805

Citations:

[1993] UKEAT 782 – 92 – 0505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.210586

Citations:

[1997] UKEAT 765 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 27 November 2022; Ref: scu.207799

Citations:

[2002] EWCA Civ 129

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.216670

Citations:

[1997] UKEAT 164 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.207845

Citations:

[1997] UKEAT 853 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.207755

Citations:

[2001] UKEAT 0175 – 01 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.203740

Citations:

[2001] EWCA Civ 1816

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.201505

Citations:

[2001] UKEAT 1299 – 00 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.203712

Renewed application for permission to appeal.

Citations:

[2001] EWCA Civ 1839

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.201518

Citations:

[2001] EWCA Civ 1853, [2002] IRLR 116, [2002] ICR 713

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
See Also – Apelogun-Gabriels v Employment Appeal Tribunal CA 17-Jul-2001
Applications for permission to appeal – rejection of claims for race discrimination . .
See Also – Apelogun-Gabriels v London Borough of Lambeth EAT 3-Dec-1998
. .

Cited by:

See Also – Apelogun-Gabriels v Lambeth and Another EAT 31-May-2002
. .
See also – Apelogun-Gabriels v London Borough of Lambeth and Another CA 25-Oct-2002
Application for permission to appeal against an order of the Employment Appeal Tribunal dismissing the appellant’s appeal against the decision of an Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 November 2022; Ref: scu.201504

Citations:

[2002] UKEAT 1192 – 01 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.202701

Citations:

[1998] EWCA Civ 1845

Jurisdiction:

England and Wales

Citing:

See Also – Riniker v University College London EAT 12-Dec-1995
. .
Appeal from – Riniker v University College London EAT 5-Feb-1997
. .
See Also – Regina v Lord Chancellor and others ex parte Riniker CA 28-Feb-1997
The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal . .

Cited by:

See Also – Riniker v University College London CA 31-Mar-1999
The writ office of the High Court unjustifiably rejected a writ which the plaintiff asked to be issued and did not issue it until the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be . .
See Also – Riniker v University College London EAT 23-Aug-1999
EAT Contract of Employment – Breach of Contract
EAT Contract of Employment – Breach of Contract. . .
See also – Riniker v University College London (Practice Note) CA 5-Apr-2001
The Employment Appeal Tribunal does not have jurisdiction to hear an appeal which does not set out to disturb any part of the order made by the original tribunal. There is no inherent power in the Court of Appeal to bypass the prohibition in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 November 2022; Ref: scu.145324

The claimant sought leave to appeal out of time against rejection by the EAT of his claims for unfair dismissal and race discrimination.
Held: The claimant would have to show some error of law by the EAT chairman. He had not done so. Nor was there a proper reason for extending the time for the appeal. Leave was refused.

Judges:

Morritt LJ, Waller LJ

Citations:

[1998] EWCA Civ 1802

Jurisdiction:

England and Wales

Citing:

See Also – Porter v Desklink Ltd (T/A Victoria Office Furniture) EAT 15-May-1996
The claimant appealed against dismissal of his claims of unfair dismissal and racial discrimination.
Held: The tribunal in its reasons had not acknowledged that the claimant had made a separate allegation of race discrimination and had not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 27 November 2022; Ref: scu.145281

The Tribunal held that two disclosures of information, that were otherwise qualifying disclosures, were not in the reasonable belief of the Claimant made in the public interest. The reasons of the Tribunal did not demonstrate that it applied the correct legal test, and had taken into account all relevant factors, in determining this issue. The Tribunal also failed to apply the correct legal test in concluding a detriment, the termination of a consultancy agreement, was not done on the ground that the Claimant had made the disclosures. The correct test requires an employment tribunal to determine whether the disclosure had a material influence on the decision to terminate the agreement.

Citations:

[2021] UKEAT 0130 – 20 – 1102

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.661693

The Claimant was dismissed by the Appellant immediately prior to a TUPE transfer from the Appellant to a third party. He brought a claim for unfair dismissal against the Appellant alone in which he claimed that his dismissal was unfair in terms of Regulation 7(1) of TUPE. The Appellant conceded that the dismissal of the Claimant was by reason of the transfer and was unfair. Following a remedies hearing, the Employment Tribunal concluded that it would be reasonably practicable for the third party to re-engage the Claimant. It further concluded that the third party was a ‘successor of the employer’ in terms of sections 115, 116 and 235 of the Employment Rights Act, 1996 (‘ERA’) and ordered the Appellant to re-engage the Claimant with the third party. The Appellant appealed, inter alia on the ground that the Tribunal had failed to consider whether or not it would be reasonably practicable for the Appellant to comply with that order.
Held: Appeal allowed and case remitted to a different Tribunal. The correct interpretation and application of section 116(3)(b) ERA required the Tribunal, before making a re-engagement order against the Appellant, to consider whether or not it was practicable for the Appellant to comply with that order. The Tribunal had not done so.
The Tribunal had also failed correctly to apply Regulation 4 of TUPE in determining which party bore the liability for an automatically unfair dismissal in terms of Regulation 7(1), and had misdirected itself as to the applicability of the ‘successor employer’ provisions of section 115, 116 and 235 ERA.

Citations:

[2021] UKEAT 0013 – 20 – 1602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.661694

1. Hearings to determine applications for interim relief are public hearings.
2. The Employment Judge did not err in law, in refusing to make an order restricting publicity pursuant to rule 50 ET Rules 2013, in this case.

Citations:

[2021] UKEAT 0256 – 20 – 2101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.661687

Application of settlement contract

Judges:

Cavanagh J

Citations:

[2020] EWHC 1208 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650819

The Claimant was employed by the Respondent as a cleaner. He is a national of Guinea Bissau but married to an EEA national exercising Treaty rights in the UK. That being so, the Tribunal correctly found that the Respondent was not at any risk in continuing to employ him after his residence permit expired. However, following inconclusive ECS checks it dismissed him. The Tribunal found that the dismissal was unfair because the Respondent had not shown that it had dismissed for the fair substantial reason of a genuine, though mistaken, belief that he could not lawfully remain employed. The Tribunal had not heard any evidence from the person who made the decision to dismiss and concluded that it could make no finding about their thought process.
However, the Tribunal reduced the compensatory award under Section 123(6) Employment Rights Act 1996, relying on conduct whereby it found that the Claimant was less than forthcoming with the Respondent about matters related to his application to renew his residency permit. It also further reduced or limited that award on the basis that the Claimant had failed to mitigate his loss by not applying for night work vacancies with the Respondent. Five live grounds of appeal and one ground of cross-appeal all related to those two decisions.
Held:
(1) In relation to the Section 123(6) reduction, the Respondent conceded, rightly, that the Tribunal had erred because it wrongly assumed that there was no requirement for the conduct relied upon to be blameworthy. It is a prerequisite of a reduction of either a basic award under Section 122(2) or a compensatory award under Section 123(6), that the Tribunal find the conduct in question to have been blameworthy. Nelson v BBC (No2) [1979] IRLR 346 and Steen v ASP Packaging Limited [2014] ICR 56 considered.
(2) In view of this conceded, and found, error of law, in relation to the Section 123(6) decision, an alternative ground of perversity fell away.
(3) A cross-appeal to the effect that the Tribunal should have drawn a distinction between deliberate and inadvertent conduct was also dismissed. Blameworthy conduct can be of a variety of kinds, and its nature, and extent in the given case, will be relevant to the Tribunal’s decision as to the degree of reduction that is just and equitable. But a Tribunal is not obliged to make that particular distinction, and the suggested opposition of inadvertent and deliberate conduct is unhelpful.
(4) The Tribunal’s conclusion that the conduct relied upon was not blameworthy could not stand. It was not supported by any consideration of the law relating to this concept, or any factual reasoning, and fell within the context of a part of the decision which was in error of law. It was not safe.
(5) It would have been open to the Tribunal to find that the conduct in question was, in some sense, blameworthy. But it would not be open to it to find that it caused or contributed to the decision to dismiss, to any extent. This was having regard, in particular, to the fact that the Tribunal was unable to make findings about the thought process of the person who took the decision to dismiss. A decision that there be no reduction under Section 123(6) was the only legally correct decision, and would be substituted.
(6) In relation to mitigation, the Tribunal had failed to take account of the fact that the burden was on the Respondent, and that the question was not answered merely by considering whether it would have been reasonable to apply for night work. The Tribunal had to consider whether the decision not to do so was unreasonable. Wilding v British Telecommunications plc [2002] ICR 179 and Cooper Contracting v Lindsey 2015 UKEAT/0184/15 followed. The evidence provided by the Respondent was so scant that it would not even properly support a finding that it would have been reasonable to apply; and the Tribunal failed to consider whether it was in all the circumstances unreasonable not to apply. The reduction was also unfair because the Claimant was not cross-examined about his decision not to apply for night work, and the matter was not raised in submissions. There was no sufficient evidence from which the Tribunal could properly have found that the Claimant unreasonably failed to mitigate his losses by not applying for night work. This issue would, therefore, also not be remitted, as the only possible correct decision was that there should be no reduction on that account.
(7) The matter was remitted to the same Tribunal to decide the final amount of the compensatory award, without any reduction under Section 123(6) or for failure to mitigate.

Citations:

[2020] UKEAT 0250 – 18 – 2502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650918

Unfair dismissal – automatically unfair dismissal – section 100 Employment Rights Act 1996
The Claimant was a bus operator, operating out of the Putney bus garage, who claimed he had suffered detriment and automatic unfair dismissal on health and safety grounds under Sections 44 and 100 Employment Rights Act 1996 (‘the ERA’). These claims were struck out by the ET as having no reasonable prospect of success. The Claimant appealed against that decision on three grounds: (1) whether the ET erred in concluding that the Claimant was not someone designated by the employer, for the purposes of Sections 44(1)(a) and 100(1)(a) ERA, to carry out health and safety-connected activities; (2) in the alternative, whether the ET ought to have treated the Claimant as being an employee at a place where there was no representative or safety committee for the purpose of Sections 44(1)(c)(i) and 100(1)(c)(i) ERA; (3) in the further alternative, whether the Claimant could rely on Sections 44(1)(c)(ii) and 100(1)(c)(ii) ERA, as it had not been practicable for him to access the health and safety officer at the Putney bus garage.
Held: dismissing the appeal
Ground (1): the Claimant relied on the fact that he had health and safety responsibilities as a PCV licensed driver and under his contract of the employment; he contended that the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 (which implemented EU Directive 2003/59) meant that he was effectively mandated to carry out health and safety responsibilities and this was sufficient to mean that he was ‘designated’ for the purpose of subsection (1)(a).
Neither Directive 2003/59 nor the 2007 Regulations (which were concerned with drivers’ qualifications and periodic training) gave any support for the suggestion that the Claimant was thereby ‘designated’ to carry out health and safety functions in the workplace for the purposes of Sections 44(1)(a) and 100(1)(a) ERA. As for his more general health and safety obligations as a PCV licence-holder and/or under his contract of employment, these were no more than might arise for many employees (including the Respondent’s other drivers); it did not meet the specific requirement that the Claimant had been ‘designated’ for the purpose of this protection.
Ground (2): the Claimant argued that his ‘place of work’ for the purposes of Sections 44(1)(c)(i) and 100(1)(c)(i) was his bus, not the bus garage from which he operated. That, however, was plainly unarguable, not least as his contract specified that his place of work was Putney bus garage. The fact that his job function required him to leave that place of work did not change that position. As there was already a designated health and safety representative at the Putney bus garage, the Claimant did not fall within this protection.
Ground (3): the argument pursued under this ground did not appear in the Claimant’s pleaded case below and did not seem to have been pursued before the ET. Even if the Claimant was permitted to take the point, however, it was impossible to see how his claim could be put under Sections 44(1)(c)(ii) and 100(1)(c)(ii) ERA: his case was put on the basis that he had been able to raise his health and safety concerns with the Respondent’s managers and there was no suggestion that it had not similarly been practicable for him to raise those matters with the designated health and safety representative at his place of work.
Generally, there was no error of law or approach in the ET’s reasoning and it had permissibly concluded that the Claimant’s health and safety detriment and dismissal claims had no reasonable prospect of success.

Citations:

[2019] UKEAT 0150 – 19 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650897

Citations:

[2010] EWCA Civ 305

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.440318

Citations:

[1997] UKEAT 852 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207817