Renewed applications for leave to appeal.

Judges:

Rimer LJ

Citations:

[2009] EWCA Civ 840

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 July 2022; Ref: scu.371876

EAT COSTS
Following the setting aside of the Employment Tribunal Judgment on grounds of apparent bias, a wasted costs order was made in respect of the improper conduct of counsel which contributed to the irregularity in procedure.

Citations:

[2009] UKEAT 0312 – 08 – 0306

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.372602

EAT UNFAIR DISMISSAL: Reasonableness of dismissal / Contributory fault
The Tribunal erred in application of the Burchell test in a case where the claimant admitted misconduct. Tribunal rightly criticised an aspect of the disciplinary hearing (related to the right to be accompanied by a representative) but failed to take account of the whole circumstances including what happened after the hearing by way of communication between the claimant and respondents and at the appeal hearing.

Citations:

[2009] UKEAT 0070 – 08 – 2205

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.372600

EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
A teacher was given notice to terminate her limited-term contract of employment before a meeting to discuss it. The Employment Tribunal correctly found this was a breach of the 2002 Act regime and automatically unfair contrary to Employment Rights Act 1996 s98A. The correct sequence is this: the employer contemplates dismissal, calls a meeting to discuss it, makes the decision in the light of what was discussed and gives notice to terminate on a given date. The Step 2 meeting precedes the decision, the carrying into effect of the decision by giving notice, and its expiry. Employer’s appeal dismissed.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0059 – 09 – 2805

Links:

Bailii

Statutes:

Employment Rights Act 1996 98A

Employment

Updated: 30 July 2022; Ref: scu.372599

EAT SEX DISCRIMINATION: Direct
The male Claimant was not selected for a post at an interview where the female panel scored him below the successful female candidates. On a claim of sex discrimination, the Employment Tribunal held the burden of proof passed to the Respondent and accepted its explanation of the outcome, having examined in respect of five candidates the scores and oral accounts given by the members of the panel on three disputed questions.

Citations:

[2009] UKEAT 1229 – 08 – 0605

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361500

EAT Identity of employer. Tribunal found, on an assessment of documentary and oral evidence, that claimant employed by respondents and not by a limited company of which they were directors. On appeal, the EAT held that the Tribunal had not erred in carrying out an exercise which was substantially one of assessing fact.

Citations:

[2009] UKEAT 0027 – 08 – 1606

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361507

EAT PRACTICE AND PROCEDURE
Striking-out/dismissal
Costs
DISABILITY DISCRIMINATION
Direct disability discrimination
Strike out under Employment Tribunal Regulations 18(7)(b). Employment Tribunal correctly proceeded on basis of Counsel’s pleaded case and held that claims of direct disability discrimination were misconceived. Partial costs of Respondent ordered. No error of law.

Citations:

[2009] UKEAT 0089 – 09 – 1206

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361505

EAT Statutory Grievance Procedure. Whether or not modified grievance procedure complied with. Employment Tribunal had erred in failing to have regard to the specific requirements of the modified procedure. Appeal upheld.

Citations:

[2009] UKEAT 0001 – 09 – 0306

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361506

EAT JURISDICTIONAL POINTS
Effective date of termination
Time limits – reasonable practicability
The Tribunal erred in holding that the effective date of termination of the Claimant’s employment was 2 June. The effective date of termination was 2 May. Chapman v Letheby and Christopher Ltd [1981] IRLR 440 discussed and applied.
The Tribunal did not, however, err in law in holding that it was not reasonably practicable for the Claimant to present her complaint within 3 months, and that she presented her complaint within such further time as was reasonable. Machine Tool Industry Research Association v Simpson [1988] ICR 558, Marley UK Ltd v Anderson [1996] ICR 728 and Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09 discussed and applied.

Citations:

[2009] UKEAT 0008 – 09 – 0907

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361513

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedur irregularity
JURISDICTIONAL POINTS Worker, employee oreither
(1) Whether the Employment Tribunal addressed all the relevant issues which arose on the question whether the Claimant’s claims against the Second Respondent were amenable to the jurisdiction of the Employment Tribunal.
(2) Whether the Claimant had managed to get across to the Employment Tribunal all, or just some, of the features of her claim.
(3) Whether the Employment Judge behaved in such a way that a fair-minded and informed observer would think that there was a real possibility that he had declined to engage with the issues which the case raised.

Judges:

Keith J

Citations:

[2009] UKEAT 0421 – 08 – 1007

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361509

EAT PRACTICE AND PROCEDURE: Striking-out/dismissal / Amendment / Withdrawal
There was one appeal in relation to three decisions in two Employment Tribunal applications.
In Employment Tribunal case 8815
(i) The Appellant challenged the striking out of her claim. The Employment Tribunal was plainly entitled to conclude that there could not be a fair trial of the claims in the light of the continued refusal, still persisted in, by the Appellant to disclose the content of a medical report expressly referred to by her in her ET1, and whose content was held by the Employment Tribunal to be plainly material to the allegations made by the Appellant; there had effectively been an unless order as the matter had been before the Tribunal on two previous occasions and had been the subject of correspondence from the Tribunal, but in any event the Appellant made clear to the Tribunal that she would never disclose the report.
(ii) But for the striking out, the Appellant’s application to the Employment Tribunal to amend the claim to add sex discrimination would have been remitted to the Employment Tribunal to consider whether some at least of her allegations were not barred by section 32.
In Employment Tribunal case 9948
(iii) The Appellant appealed the Employment Tribunal’s decision not to permit her to withdraw her earlier withdrawal of her claim against the First Respondent. The Employment Tribunal rightly dismissed the application in the light of Khan.

Judges:

Burton J

Citations:

[2009] UKEAT 0194 – 09 – 1706

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361503

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
On a hearing before the EAT findings of fact as to allegations of actual and apparent bias by an employment judge were rejected applying Abegaze.
This is a classic case where a claimant is dissatisfied as to the dismissal of her case where Rimer J in Hackney LBC v Sagnia UKEAT/0600/03 observed the false logic in which a claimant says I have a strong case, I have lost so the court must be biased against me. This judge was not biased nor gave the appearance of bias against the claimant, these allegations are unfounded.

Citations:

[2009] UKEAT 0393 – 08 – 2307

Links:

Bailii

Citing:

Cited – London Borough of Hackney and others v Sagnia EAT 6-Oct-2005
EAT Race Discrimination; Victimisation
Whether the employment tribunal’s findings of race discrimination and victimisation were tainted by bias, perversity, irrationality or other errors of law. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 July 2022; Ref: scu.361515

EAT PRACTICE AND PROCEDURE: Amendment
Amendment permitted by the Employment Tribunal to substitute correct Claimant in a case initially brought by individual employees; under TUPE reg. 15(1)(c) the claim could only be brought by the relevant recognized trade union on a complaint of breach of reg. 13.
Appeal dismissed. Judge below had jurisdiction to consider the application and exercised his discretion permissibly, bearing in mind the balance of injustice and hardship.

Citations:

[2009] UKEAT 0112 – 09 – 2407

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361510

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Disability related discrimination
Compensation
PRACTICE AND PROCEDURE
Case management
Appeal against Employment Tribunal’s finding of disability discrimination (reasonable adjustments) and disability related discrimination (dismissal). In circumstances where the two findings were inextricably linked the Employment Tribunal’s failure to construct the Malcolm comparator in relation to the latter claim made no difference to their determination on the facts. Judgment upheld. Related appeals against findings of unfair dismissal and breach of contract also dismissed.
Appeal against the Employment Tribunal’s remedies judgment relating to the Employment Tribunal’s failure to grant the Respondent’s application for an adjournment; their consideration of the Claimant’s injuries to feelings claim; and points relating to set-off of pilon sum and Polkey deduction. Employment Tribunal found not to have erred in law in any respect and appeal dismissed.

Citations:

[2009] UKEAT 0396 – 08 – 1405

Links:

Bailii

Employment

Updated: 30 July 2022; Ref: scu.361501

EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
Respondent failed to present response in time and was accordingly debarred under rule 9 – Judgment given following Hearing at which Respondent not permitted to participate – Application for review disallowed because made purportedly under rule 33 not rule 34.
Held: application should have been considered as an application under rule 34 – D and H Travel [2006] ICR 1537 followed – Observations on Chowles v West (UKEAT/0473/08, BAILII: [2009] UKEAT 0473 – 08 – 0801 )

Judges:

Underhill P J

Citations:

[2008] UKEAT 0327 – 08 – 2204

Links:

Bailii

Citing:

Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 July 2022; Ref: scu.349091

EAT VICTIMISATION DISCRIMINATION: Whistleblowing / Protected disclosure
Employment Tribunal did not go beyond the remit directed by the Employment Appeal Tribunal in further considering the Claimant’s claims after remission to it further consideration by the Employment Appeal Tribunal.

Citations:

[2008] UKEAT 0088 – 08 – 2005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Redcar and Cleveland Borough Council v Scanlon EAT 27-Feb-2007
EAT Unfair Dismissal – Automatically unfair reasons. . .
See Also – Redcar and Cleveland Borough Council v Scanlon EAT 22-May-2007
Unfair dismissal – Automatically unfair reasons/ Reasonableness of dismissal
Appeal on the grounds that the Employment Tribunal had not applied the correct statutory tests of causation under s.103A Employment Rights Act 1996 and s.4(1) Sex . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 July 2022; Ref: scu.271321

ECJ (Staff Regulations) Occupational disease – Refusal to recognize the occupational origin of the disease of which the applicant is suffering

Citations:

F-39/05, [2006] EUECJ F-39/05

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 28 July 2022; Ref: scu.243000

Citations:

[1993] UKEAT 56 – 92 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.210404

The teacher’s job had been privatised. After retirement he sought to have his pension assessed on the basis as it would have been but for the restructuring. The Secretary appealed a finding in the teacher’s favour.
Held: The question was determined by assessing the ‘contributable salary’ under the Regulations. The formula created difficulties, but it had to be assessed by reference to the last salary actually paid, and the ombudsman’s decision was not supported in law.

Judges:

Mr Justice Pumfrey

Citations:

Gazette 16-Oct-2003

Statutes:

Teachers’ Pension Regulations 1997 (SI 97/3001)

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.190578

EAT Time Limits
Letter sent by the Respondent to the Applicant gave the alternatives of summary dismissal or consideration of agreed termination, with a deadline for such agreement, which was subsequently extended. No error in law by the Employment Tribunal in concluding on the facts that, by virtue of such continued negotiations, the letter did not terminate the contract of employment, so that the Originating Application was premature.

Judges:

The Honourable Mr Justice Burton

Citations:

[2004] UKEAT 0679 – 04 – 0712, UKEAT/0679/04/CK

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.224730

Citations:

[1993] UKEAT 298 – 91 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.210381

Citations:

[1996] UKEAT 866 – 95 – 2201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.208135

EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult about ways of avoiding redundancies because the decision to close had been determined prior to any meeting with the union.
Held: The employer’s appeal succeeded. Mr Justice Burton said: ‘In the light of that analysis of the law, we turn to our conclusions on the facts of this case. We are satisfied that the Tribunal erred in law. The fundamental way in which they erred was the approach they took in paragraphs 23 and 25 of the decision, in which the tribunal concluded that because there had been no consultation in relation to the decision to close the branches, therefore, there could not be held to have been consultation at all. Judge Clark in his summary of the law, to which we have referred, and with which we agree, in Middlesbrough, expressly referred to the decision in Vardy (R v British Coal Corporation and Secretary of State for Trade and Industry ex party Vardy and others [1993] IRLR 104), a decision of the Divisional Court, given on behalf of the Court by Glidewell LJ. In that lengthy judgment at paragraph 116, Glidewell LJ, having referred to s.188, said this: ‘In my judgment this section does not require a consultation about the reasons for the redundancy, including whether or not a plant should close.”
EAT Redundancy – Protective award.

Judges:

The Honourable Mr Justice Burton (P)

Citations:

EAT/901/02, EAT/877/02, [2003] UKEAT 0877 – 02 – 0704, [2004] IRLR 9

Links:

Bailii, EATn

Statutes:

Trade Unions and Labour Relations Consolidation Act 1992 188, Council Directive 75/129 of 17 February 1975 2(3), Council Directive of 24 June 1992 92/56/EEC

Jurisdiction:

England and Wales

Citing:

Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .
Cited – Regina v British Coal Corporation and Secretary of State for Trade and Industry ex parte Vardy and Others QBD 1993
British Coal Corporation had decided to close 31 deep mine collieries. The court was asked as to just what consultation obligations fell on the employer under the 1946 Act.
Held: The section did create an obligation to consult. Glidewell LJ, . .
Approved – Middlesbrough Borough Council v TGWU Unison EAT 4-May-2001
The council sought to make redundancies because of its financial circumstances following re-organisation. The employees said the consultation procedure had been a sham.
Held: Fair consultation involves giving the body consulted a fair and . .
Cited – E Green and Sons (Castings) Ltd v ASTMS EAT 1984
Nolan J considered the sub-section and the disclosure requirements on a consultation: ‘Flexibility in the course of consultation is obviously desirable, but the consultation envisaged by s. 99 cannot begin until the employer has provided the . .
Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Cited – Spillers French (Holdings) Ltd v Union of Shop, Distributive and Allied Workers (USDAW) EAT 1979
The employer closed its bakeries and made redundancies, but without consultation. The ET decided it could make a protective award even if none of the employees had suffered any loss because the redundancies must follow.
Held: In the . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .

Cited by:

Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Cited – Clayton v City of Bath College and Another EAT 21-Sep-2006
EAT Equal Pay Act – Article 141 . .
Cited – Cranswick Country Foods Plc v Beall and others EAT 20-Dec-2006
EAT Redundancy – Protective award
Employees who were faced with redundancy obtained protective awards because of lack of consultation on the part of the employer. They continued to work and to receive salary . .
Cited – Wilkes v Dundee City Council, The Scottish Ministers EAT 16-Jan-2007
EAT Temporary music teacher’s claim for exclusion from pension scheme. Application of Preston cases and Jeffrey v Secretary of State for Education and ors [2006] ICR 1062. Claim time-barred. Obiter discussion of . .
Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Cited – Davies v Farnborough College of Technology EAT 10-Jul-2007
Unfair dismissal – Automatically unfair reasons
Redundancy – Fairness
Unfair dismissal – Polkey deduction
The Employment Tribunal erred in concluding that a breach in relation to Step 2 (failure to give sufficient information as to . .
Cited – Winder v Aston University and Another EAT 1-Aug-2007
EAT Equal Pay Act – Part time pensions
In deciding two cases in accordance with Preston v Wolverhampton NHS Trust (No 3) [2004] ICR 993 EAT, the Employment Tribunal did not err in holding that the Claimant . .
Cited – Pike v Somerset County Council and Another EAT 3-Oct-2008
EAT EQUAL PAY ACT: part time pensions
The Teachers’ Pension Scheme did not distinguish part-timers and full-timers, save for one rule which applied to teachers who retire and return to work. If the work was . .
Cited – Potter and Others v North Cumbria Acute Hospitals NHS Trust and Others EAT 24-Apr-2009
EAT CONTRACT OF EMPLOYMENT: Implied term / variation / construction of term
PRACTICE AND PROCEDURE: Amendent
The addition of new comparators to equal pay claims constitutes the addition of new causes . .
Cited – United States of America v Nolan EAT 15-May-2009
EAT REDUNDANCY: Collective consultation and information / Protective award
An Employment Tribunal held that the USA was in breach of Section 188 of the Trade Union and Labour Relations (Consolidation) Act . .
Cited – St Alphonsus RC Primary School v Blenkinsop EAT 18-May-2009
EAT SEX DISCRIMINATION: Pregnancy and discrimination
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The Claimant was a teacher working half of each term until she became . .
Cited – Abbott and Others v Littlewoods Plc EAT 21-Jul-2009
EAT EQUAL PAY ACT: Part time pensions
PRACTICE AND PROCEDURE: Amendment
The Employment Judge erred in her assessment that the Claimant’s amendment to contend that it was not necessary for her to show . .
Cited – Clarke v London Borough of Harrow and others EAT 21-Oct-2004
EAT Equal Pay Act – Article 141 . .
Cited – GMB Union v M Fenton EAT 12-Oct-2004
EAT Sex Discrimination
S4(2) SDA 1975: was A’s allegation false and not made in good faith? The allegation was plainly false and the ET did not, or did not clearly, so find; but insofar as the ET concluded . .
Cited – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Cited – Thacker, and Larthwell v Secretary of State for Education and Skills, Cambridge Regional College EAT 30-Mar-2005
EAT Equal Pay Act – Article 141 . .
Cited – Degnan and others v Redcar and Cleveland Borough Council EAT 14-Apr-2005
EAT Sex Discrimination – Injury to feelings.
EAT Equal Pay Act – Out of time . .
Cited – Amicus v Nissan Motor Manufacturing (UK) Ltd EAT 26-Jul-2005
EAT Employers failed to consult with company council rather than union – did not consult with union until later stage 3 weeks before employees had to indicate willingness to be relocated but 4.5 months before . .
Cited – Shaikh v The Department for Constitutional Affairs and others EAT 31-Aug-2005
EAT Equal Pay Act – Article 141. . .
Cited – Leicestershire County Council v Unison EAT 2-Sep-2005
EAT Redundancy: Protective Award
Employment Tribunal correctly applied the judgment in Susie Radin v GMB [2004] ICR 893 in its approach to the calculation of a protective award for one group of workers, . .
Cited – S M Deighton v Secretary of State for Education and Employment Henley College EAT 8-Dec-2005
EAT Equal Pay Act – Article 141 – By consent – Adjourned. Preston case pending legal representation. . .
Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Cited – Deighton v Secretary of State for Education and Skills, Henley College EAT 2-May-2006
EAT Equal Pay Act – Article 141 . .
Cited – Air 2000 Ltd v D Mallam EAT 16-Mar-2004
EAT Unfair Dismissal – Polkey deduction . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.185501

EAT PRACTICE AND PROCEDURE: Perversity
UNFAIR DISMISSAL: Compensation
The judgment of the Employment Tribunal was not perverse notwithstanding the fact that two out of the three reasons advanced by the Employment Tribunal for regarding the evidence of the managing director of the first appellant as not reliable were unsound. The third reason was supported by evidence.
There was an error of law by the Employment Tribunal on the question of compensation by not crediting the sums actually received by the Respondent against the award of compensation wrong; this was so even if the point had not been argued below because it was obvious.
It was not an error, however, to fail to give credit in respect of benefits in kind where this had not been argued below; the point was not obvious.
The award of andpound;500.00 costs was not adequately reasoned.
Counterclaims, which have previously been revoked, cannot be dismissed.

Citations:

[2009] UKEAT 0087 – 09 – 1905

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347325

EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
The Employment Judge through the Tribunal Office wrongly informed the second, third and fourth Respondents that they could not take any action in the proceedings other to seek a review. When striking out the responses under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule I Rule 18(7) he erred in proceeding as if Rule 9 applied. Those Respondents were deprived of the opportunity of making representations at the hearing. Judgment on liability of the Second, Third and Fourth Respondents was set aside and the case against them remitted to a differently constituted Employment Tribunal. Judgment on liability of the First Respondent remains in place. The case against the First Respondent is remitted to a differently constituted Employment Tribunal to determine remedy.

Citations:

[2009] UKEAT 0314 – 08 – 0705

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347321

EAT CONTRACT OF EMPLOYMENT
Disciplinary and Grievance Procedure
The Employment Tribunal had not erred in construing the terms and conditions of employment as not permitting the employer to transfer the employee to other duties; in any event, the use of any power to transfer as a disciplinary sanction was unlawful.
UNFAIR DISMISSAL
Contributory Fault

Citations:

[2009] UKEAT 0493 – 08 – 2905

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347322

EAT UNFAIR DISMISSAL: Compensation; Polkey Deduction
Whether a nil award of compensation under section 123(1) of the ERA 1996 could have been made without misdirection as to the correct approach to the section? The fact that a third party had withdrawn a licence for the employee to be on its premises under the erroneous impression that he had caused damage to its property was regarded by the Employment Tribunal as requiring a nil award without any consideration as to the ‘what if’ scenario, which should have included consideration as to the reasonable employer asking for the licence to be reinstated. Remitted to Employment Tribunal.

Judges:

Hand QC J

Citations:

[2009] UKEAT 0051 – 09 – 2805

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347324

EAT PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
New evidence on appeal
Disposal of appeal including remission
RACE DISCRIMINATION:
Direct Comparison
In the context of a case of direct race discrimination where fresh/new evidence has been admitted on direction after a Rule 3(10) hearing the EAT still needs to consider whether the admission of that evidence before it at the full hearing means there must be an error of law and the matter must be remitted for a rehearing.

Citations:

[2009] UKEAT 0061 – 09 – 1505

Links:

Bailii

Cited by:

See Also – Andorful v London Borough of Hammersmith and Fulham EAT 11-Apr-2012
EAT Practice and Procedure : Striking-Out or Dismissal – Costs
Limited issue before Employment Judge at Pre-Hearing Review, following CMD direction. Judge entitled to strike-out claim based on findings of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.347320

EAT Employer gave notice of redundancy to expire on 31 May; termination date brought forward to 31 March with payment in lieu in respect of balance of period. ET found application not brought within 3 months of 31 March out of time. Appeal dismissed. The agreed earlier date constituted an implied withdrawal of the earlier notice or – if necessary concluding TBA Industrial Products Ltd v Morland [1982] ICR 686 to be per incuriam (4 NIRC or EAT decisions not having been addressed) and preferring the minority judgment of Ackner LJ – a variation of that notice.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/0990/03, [2004] UKEAT 0990 – 03 – 1503, [2004] IRLR 916

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Wedgewood v Minstergate Hull Ltd EAT 13-Jul-2010
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant employee was given notice that his contract would expire on 1 December 2008.
By a letter dated 26 November 2008 the Respondent . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.347333

The EAT considered the effect of an employer’s failure to comply with the statutory procedures in a redundancy.
Held: ‘there is an automatically unfair dismissal where there is a failure fully to comply with any relevant statutory procedure. Compliance with the statutory procedure does not, however, mean that the dismissal is necessarily fair or cannot be challenged on procedural grounds. It may still involve a breach of section 98(4). But in those circumstances the failure to follow an appropriate procedure will not render the dismissal unfair if the employer can show on the balance of probabilities that he would have dismissed fairly even had proper procedures been followed. So once the statutory procedural requirements have been met, the failure to comply with additional procedural safeguards will not render the dismissal unfair if the employer shows that the employee has not in fact been prejudiced as a consequence. This provision therefore reverses in those circumstances the well known principle established by the House of Lords in Polkey v A E Dayton Services [1987] ICR 301.’

Judges:

Elias J

Citations:

[2006] IRLR 422, [2006] UKEAT 0107 – 06 – 1204, [2006] ICR 1277

Links:

Bailii

Statutes:

Employment Rights Act 2002 98(4) 98A

Cited by:

Applied – Zimmer Ltd v Brezan EAT 24-Oct-2008
EAT UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal
This judgment addresses only the issue as to whether the Employment Tribunal’s finding of automatically unfair dismissal was wrong in . .
Cited – West Hertfordshire Hospitals NHS Trust v Evans EAT 19-Aug-2010
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
Impact on compensation
UNFAIR DISMISSAL
Compensation
Mitigation of loss
The principal issues in the appeal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.347291

EAT National Minimum Wage – The Appellant, a care worker in a residential home, was required on occasion to ‘sleep in’ at the home, in return for a flat-rate payment (‘the sleep-in payment’) which equated to an hourly payment of andpound;2.70. It was conceded by the employer that his time doing so was ‘time work’ within the meaning of the National Minimum Wage Regulations 1999 and accordingly fell to be taken into account in calculating whether the national minimum wage had been paid. The Appellant argued, however that the sleep-in payment fell to be excluded because it constituted an ‘allowance’: see reg. 31 (1) (d).
Held: (by a majority) that the sleep-in payment was not an allowance within the meaning of the Regulations (Burrow Down [2008] ICR 1172 referred to) and accordingly ought to be taken into account. (However, if the payment had been an allowance it would not have been ‘attributable to the performance of the worker in carrying out his work’ so as to fall within the words of exclusion in reg. 31 (1) (d) – Bellfield (UKEAT/0194/00) followed.)

Citations:

[2009] UKEAT 0176 – 09 – 2406

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347190

EAT UNFAIR DISMISSAL: Compensation
The Claimant was unfairly dismissed. She found work, which paid more than the old job but then it paid less and this lesser rate was paid at the date of the remedy assessment. The Employment Tribunal found the new job was inherently insecure and awarded the sum claimed of one year’s forward loss at the mitigated rate. Between dismissal and assessment she earned more in total than in the old job. The Employment Tribunal did not err when it did not give the employer credit for this sum toward the forward loss. Dench principles considered.

Citations:

[2009] UKEAT 0083 – 09 – 0805

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347184

EAT Jurisdictional Points

Citations:

[2009] UKEAT 0018 – 09 – 1105

Links:

Bailii

Citing:

Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.347181

EAT EQUAL PAY ACT – Material factor defence
Male colleagues of female equal pay claimants may bring ‘piggyback’ contingent claims using the female claimants as comparators and may recover sums equivalent to those awarded to such comparators by way of arrears.

Judges:

Underhill P J

Citations:

[2009] UKEAT 0006 – 08 – 2406, Times 09-Jul-2009, [2009] ICR 1426, [2009] IRLR 796

Links:

Bailii

Cited by:

Cited – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.347186

EAT UNFAIR DISMISSAL: Compensation
The Employment Tribunal made no error in assessing pension loss by reference to the Ogden Tables. The Employment Appeal Tribunal will not readily interfere with the assessment of compensation.

Citations:

[2009] UKEAT 0137 – 09 – 1505

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347183

EAT PRACTICE AND PROCEDURE: Case management
Powers of Employment Judge at CMD. Whether she could (a) rule witnesses’ evidence irrelevant and inadmissible at trial (b) direct that certain evidence should be heard in private at trial; whether right to a fair trial under Art 6 infringed impermissibly at CMD contrary to Employment Tribunals Rule 17(2).
On appeal, no procedural irregularity upheld. Agreed variation of Employment Judge order endorsed.

Citations:

[2009] UKEAT 0092 – 09 – 0506

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347187

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL: Reasonableness of dismissal
Appeal allowed. The Tribunal erred in law in its approach to the questions to be determined for the purposes of section 98(4) of the Employment Rights Act 1996, effectively substituting its own views. The Tribunal did not, however, evince apparent bias.

Citations:

[2009] UKEAT 0363 – 08 – 2406

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347189

EAT UNFAIR DISMISSAL
The Employment Tribunal erred when it found the employee was not unfairly dismissed. There was no disciplinary hearing. In the light of London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Employment Tribunal concentrated wrongly on the conduct of the Claimant and not upon the conduct of the Respondent. In the light of Strouthos v London Underground Limited [2004] IRLR 402 CA a charge of deliberate falsification or lying has to be put squarely. Remitted for rehearing.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0384 – 08 – 1504

Links:

Bailii

Citing:

Cited – Strouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
Cited – London Ambulance Service NHS Trust v Small CA 17-Mar-2009
The trust appealed against a decision that it had unfairly dismissed an ambulance paramedic after a complaint of his behaviour on a call out, saying that the ET had substituted its own assessment for that of the disciplinary panel of the Trust.
Cited – 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 – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Iceland Frozen Foods Ltd v Jones EAT 29-Jul-1982
Members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to . .
Cited – Bugden and Co v Thomas 1976
The failure to have a hearing with the person responsible for the dismissal was held to be unfair. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.347180

EAT UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal
The Employment Tribunal was wrong to hold that the statutory disciplinary procedures did not apply in a case where the employer believed that the Claimant was not an employee.

Citations:

[2009] UKEAT 0509 – 08 – 2804

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347178

EAT PRACTICE AND PROCEDURE: New evidence on appeal
Witness before Tribunal changed his evidence concerning a critical date from that which was in his witness statement. Tribunal made critical finding on that basis.
Application on appeal to adduce fresh evidence – Ladd v Marshall principles applied – evidence could not have been obtained with reasonable diligence for use at the Tribunal hearing – evidence would probably have had an important bearing on the hearing – evidence accepted to be credible.
Appeal allowed.

Citations:

[2009] UKEAT 0342 – 08 – 1002

Links:

Bailii

Employment

Updated: 28 July 2022; Ref: scu.347170

EAT Contract of Employment: Written Particulars
Unlawful Deduction from Wages
The Claimants are maintenance supervisors of craftspersons in the NHS. As a matter of construction, AFC as incorporated into the Claimants’ contracts in the context of a desire to create gender-free pay systems did not entitle them to the Recruitment and Retention Payments made to the craftspersons they supervised, even though all were required to have the same qualifications and the Claimants did do some work ‘on the tools’. Majority Employment Tribunal Judgment (Employment Judge dissenting) upheld.

Citations:

[2009] UKEAT 0483 – 08 – 2904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.347172

EAT UNFAIR DISMISSAL: Mitigation of loss
NATIONAL MINIMUM WAGE
Various decisions in remedy appealed unsuccessfully.

Citations:

[2009] UKEAT 0540 – 08 – 0402

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.347168

Citations:

[2002] EWCA Civ 514

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.216976

Citations:

[2002] UKEAT 76 – 01 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.202611

Citations:

[2002] UKEAT 1211 – 01 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.202619

Citations:

[1995] UKEAT 866 – 95 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 July 2022; Ref: scu.209542

The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the company at the airport. There was a complaint about Mr Dobie and the Respondent dismissed him. An Industrial Tribunal held that there was a substantial reason justifying dismissal, a decision upheld by the Employment Appeal Tribunal.
Held: The appeal was allowed and the case and remitted the matter for further hearing in the Industrial Tribunal: ‘In deciding whether the employer acted reasonably or unreasonably, a very important factor of which he has to take account on the facts known to him at the time, is whether there will or will not be injustice to the employee and to the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee’s service, the difficulties which may face the employee in obtaining other employment and matters of that sort.
Where the EAT or Court of Appeal finds that the ET has misdirected itself in law, it should remit the case for rehearing unless it is satisfied that, notwithstanding the error, the conclusion of the ET was unarguably right. None of these is decisive but they are all matters of which he has to take account, and they are all matters which affect the justice or injustice to the employee of being dismissed.’
The court discussed the procedure to be followed by the EAT on discerning an error of law in a tribunal’s judgment: ‘once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked in not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding a misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact.’

Judges:

Sir John Donaldson MR, Slade and Parker LJJ

Citations:

[1984] ICR 812, [1984] ICR 812, [1985] 1 WLR 42, [1984] IRLR 329, [1984] EWCA Civ 11

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Hammersmith and Fulham, G Alltimes v L Ezeonyim EAT 7-Jun-2000
EAT The claimant had succeeded in his claim for race discrimination. The employer appealed, saying the tribunal had misunderstood its harassment procedure so as to be wrong in law. The claimant complained of a . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – Greenwood v Whiteghyll Plastics Ltd EAT 6-Aug-2007
EAT Reason for dismissal including substantial other reasonable adjustments
Reasonableness of dismissal
Claimant dismissed because major customer of Respondent stated that claimant was banned from its . .
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Cited – Secretary of State for Justice v Slee CA 24-Jan-2011
The claimant had been found to have been unfailry dismissed by respondent, on the termination of her employment as an assistant Clerk to the Justices. The EAT had upheld her claim, but had at first rejected her claim for long-term and retirement . .
Cited – Tilson v Alstom Transport CA 19-Nov-2010
The parties disputed whether the claimant agency worker was in law the employee of the respondent.
Held: The test was whether it was necessary to infer such a contract to explain the conduct of the parties (Elias LJ). The EAT were right to . .
Cited – Kapadia v London Borough of Lambeth EAT 27-May-1999
The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Explained – Hellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
Qualified – Hellyer Bros Limited v McLeod EAT 1985
Waite J said: ‘If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then . .
Cited – Hellyer Bros Limited v McLeod CA 1987
Slade LJ Approved the dictum of Waite J at the EAT. . .
Cited – Jafri v Lincoln College CA 16-Apr-2014
The claimant’s complaint of unfair dismissal for making a protected disclosure had been rejected by the ET and EAT. The court was asked whether the claimant could rely upon a point not previously raised.
Held: The appeal failed. Where a court . .
Cited – Way v Spectrum Property Care Ltd CA 22-Apr-2015
The appellant had been dismissed after using the company email to forward an inappropriate email in breach of the company’s policies. Later he was disciplined for making an appointment in breach of the company’s procedures. He again misused the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 28 July 2022; Ref: scu.218836

Judges:

Lord Justice Bean

Citations:

[2015] EWCA Civ 212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 July 2022; Ref: scu.544334

Judges:

Bean LJ

Citations:

[2014] EWCA Civ 1626

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 July 2022; Ref: scu.539825

EAT PRACTICE AND PROCEDURE: Postponement or stay / Service
General stay of Employment Tribunal proceedings; Employment Tribunal Rules 11 and 12 – application for order ‘ex parte’; Employment Tribunal intention not to serve order on other party. Third Party confidentiality and possible P.1.1. Joinder of Third Party. Right to have application for original application to be revoked heard.
Appeal allowed; matter remitted for revocation application to be heard.

Citations:

[2009] UKEAT 0173 – 09 – 0605

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346601

EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Constructive dismissal – Tribunal wrong to have held that the complaints relied on by the Claimant had not been the subject of a prior grievance – Cyprus Airways Ltd v Lambrou UKEAT/0526/06 considered.

Citations:

[2009] UKEAT 0547 – 08 – 2205

Links:

Bailii

Citing:

Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.346603

EAT PART TIME WORKERS
Whether the Claimant may rely on a hypothetical comparator in a PTWR claim.
Held: No.
Whether part-time worker status must be the sole reason for less favourable treatment. Answer No. Sharma preferred to Gibson and McMenemy.
The Employment Tribunal was entitled to conclude that the actual comparator relied on by the Claimant was not a true comparator. Therefore claim under PTWR was correctly dismissed by the Employment Tribunal.

Citations:

[2009] UKEAT 0261 – 08 – 1505

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346600

EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Bias, misconduct and procedural irregularity
The appellants, a Regional Industrial Officer and the Regional Secretary of the respondents, a trade union, were dismissed for gross misconduct in connection with the nomination process for the election of the successor to the respondents’ General Secretary, who was retiring. They were unsuccessful in their claims that they had been unfairly dismissed. Their claims were two of four that were conjoined by case management order. They appealed to the Employment Appeal Tribunal, raising three main arguments: the decision to conjoin was perverse, their application for review of the Tribunal’s judgment should have been considered by a different Chairman, and there was an appearance of bias arising from the facts that the Chairman had formerly been employed by another union (Unison) as its legal officer and that the preponderance of credibility findings had been in favour of the respondents. Arguments also advanced that the Tribunal should have concluded differently on the evidence. Appeal refused. It was too late for the claimants to appeal against the order to conjoin the cases. Rule 36(1) of the Employment Tribunal Rules required the review to be considered by the same Chairman. There was no apparent bias; that was not an inference that arose from the matters founded on. All grounds of appeal were wholly misconceived.

Citations:

[2008] UKEAT 0003 – 07 – 0602

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346173

EAT PRACTICE AND PROCEDURE: Compromise
Clear language is needed for an agreement in a COT3 to preclude claims arising from events after it is entered into. Dicta in Royal National Orthopaedic Hospital Trust v Howard [2002] IRLR 849 applied.

Judges:

Slade J

Citations:

[2008] UKEAT 0429 – 08 – 0512

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346180

EAT TRANSFER OF UNDERTAKINGS: Consultation and other information
TUPE 2006. (1) Whether Tribunal had erred in refusing to allow UCATT to amend its claim to add an allegation of failure to inform in accordance with reg.13(2) in addition to its existing allegation of failure to consult. (2) Whether regulations require a transferee employer to consult with transferred employees post transfer regarding measures it envisages in relation to them.
On appeal, EAT found that the Tribunal had not erred in refusing to allow UCATT to amend its claim. Further, it agreed with the Tribunal that the transferee employers were not obliged to consult with the transferred employees post transfer. Proposal that there should be a reference to the ECJ rejected.

Judges:

Smith Lady

Citations:

[2008] UKEAT 0007 – 08 – 1811

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.346178

EAT Transfer of Undertakings: Continuity of Employment
Employment Tribunal Judgment on a preliminary point that employee did not transfer overturned as it did not consider and apply the European Court of Justice Judgment in Botzen [1986] 2 CMLR 50. Claimant was assigned exclusively to the Respondent’s predecessor’s cafe and her contract of employment was transferred. She had continuous employment.

Citations:

[2006] UKEAT 0198 – 06 – 0109

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346172

EAT UNFAIR DISMISSAL
Tribunal found that the claimant was unfairly dismissed. Two allegations of misconduct, one admitted and established but Tribunal found that the respondents did not have reasonable grounds on which to sustain a belief in the other ground. The dismissing manager would not have dismissed in respect of the former ground alone. The manager who heard the appeal thought that that ground did warrant dismissal. Employers appealed; the Tribunal had failed to take account of the view of the appeal manager that the uncontested ground justified dismissal. Appeal dismissed; the employee would not have been dismissed on that ground alone and the matter would never have come before the appeal manager if the employers had not entertained an unjustified belief in the other allegation of misconduct.

Citations:

[2008] UKEAT 0039 – 08 – 2810

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346177

EAT Unlawful Deductions From Wages
Local authority employers attempted to implement single status agreement between COSLA and unions as regards contracts of employment of concierges. Prior contracts included provision whereby they were entitled to a one hour paid lunch break in each 12 hour shift. Employer sought to impose changes including making part of lunch break unpaid. Employees objected and earlier Tribunal had found that there had been no variation of the original contract regarding the lunch break; concierges were still entitled to a one hour paid break in each 12 hour shift. Employer had, since 2000, been paying the claimants on the basis of the changes they had sought unilaterally to impose. Subsequent tribunal found, accordingly, that they were in breach of their contractual obligation to pay the concierges for the entirety of their one hour lunch break and that that was an unlawful deduction which gave rise to a loss which they quantified. On appeal, tribunal’s judgment quashed, save pronouncing a declaration of unlawful deductions, because (a) the tribunal had failed to recognise that the original contract had not been varied; (b) therefore that no contractual reduction in basic hours had yet been achieved; and (c) that meant that there was no basis in fact for the tribunal’s determination as to the value of the unpaid breaks.

Judges:

Smith J

Citations:

[2008] UKEAT 0028 – 07 – 2904

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346174

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Claimant dismissed for gross misconduct in having taken taxi money without prior authority. Tribunal satisfied that dismissal was outwith the range of reasonable responses in whole circumstances which included that she had put the cost through her employers EPOS system so that it was evident who had taken the cash and what it had been taken for, that she would have clearly been entitled to bus fares (which would have fallen not far short of the taxi costs), that she had no other means of getting to work to act as a relief manager at a place which was not her regular place of employment, that she was a long standing employee and that the employers drew no distinction between employees who took money without leaving any trace of who had done so or why and circumstances such as in the present case. Tribunal’s conclusion not disturbed on appeal.

Judges:

Lady Smith J

Citations:

[2008] UKEAT 0005 – 08 – 2006

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346175

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Equal pay claims constituting one of the multiples in the Newcastle proceedings – Respondent’s response struck out for non-compliance with an unless order – Strike-out reviewed by Employment Tribunal purportedly under rule 34 but allowed to stand.
Held that rule 34 has no application to the strike-out of a response as opposed to a claim form (Uyanwa-Odu v Schools Office Services Ltd. and Neary v St. Alban’s Girls School distinguished); but held that substantially the same exercise fell to be carried out under rule 10 (2) (n): Hart v English Heritage followed.
Held that in the circumstances of the particular case, and having regard to CPR 3.9, the Judge was wrong to maintain the strike-out, notwithstanding the Respondent’s breach of an unless order, since it had subsequently substantially remedied its breach – Stolzenberg v CIBC Mellon Trust followed.

Citations:

[2009] UKEAT 0489 – 08 – 0805

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346170

EAT JURISDICTION POINTS – Extension of time: just and equitable
Disability discrimination claim brought outside primary time limit Judge entitled to hold that misleading instructions given by Claimant to her solicitors as a result of mental ill-health constituted an exceptional circumstance entitling him to extend time – Robertson v Bexley Community Centre [2003] IRLR 434 discussed – passage in ‘Employment Law Practice 2007’ disapproved.

Citations:

[2009] UKEAT 0530 – 08 – 1603

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 July 2022; Ref: scu.346160

EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Whether the range of reasonable responses test has any place in the question as to whether an employee has been constructively dismissed. Fairbrother and Claridge considered and not followed.
General observations on approach to constructive unfair dismissal.
Peter Clark J said: ‘we commend a return to settled authority, based on the following propositions:
(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.
(2) If, applying the Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.
(3) It is open to the employer to show that such dismissal was for a potentially fair reason.
(4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see Sainsbury v Hitt [2003] IRLR 23), fell within the range of reasonable responses and was fair.’

Judges:

Peter Clark J

Citations:

[2009] UKEAT 0492 – 08 – 0805, [2009] IRLR 606, [2009] ICR 1042

Links:

Bailii

Statutes:

Employment Rights Act 1996 98

Citing:

Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited – British Leyland v Swift CA 1981
The court upheld the dismissal by employers of a long-serving employee who had stolen and subsequently altered a road fund licence belonging to his employers and had persistently lied about the incident.
Held: When considering the decision of . .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – Haddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
Cited – Hamilton v Tanberg Television Ltd EAT 12-Dec-2002
. .
Cited – Beedell v West Ferry Printers Ltd CA 15-Mar-2001
It could be correct for an appeal to be dismissed rather than allow an appeal against the grant of leave to appeal. The subject matter was important and highly controversial, even if the law appeared to be clear and the appeal to be hopeless. To . .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Cited – Gilbert v Goldstone Ltd EAT 1976
Unreasonable conduct by an employer was sufficient to amount to constructive dismissal, regardless of whether it involved a breach of contract by the employer. . .
Cited – Turner v London Transport Executive CA 1977
. .
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Genower v Ealing, Hammersmith and Hounslow AHA EAT 1980
EAT The EAT upheld an industrial tribunal’s finding that by unilaterally varying the employee’s job description the employer was in fundamental breach of contract, entitling the employee to resign in accordance . .
Cited – Savoia v Chiltern Herb Farms Ltd CA 1982
The employee submitted that a constructive dismissal cannot be fair.
Held: The submission failed. Waller LJ said: ‘He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong.’ In considering . .
Cited – Berriman v Delabole Slate Ltd CA 1985
Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of . .
Cited – Baldwin v Brighton and Hove City Council EAT 14-Dec-2006
EAT Sex Discrimination – Transsexualism
Unfair Dismissal – Constructive dismissal
Gender reassignment. Employer’s lack of knowledge. Meaning of ‘treats’ (SDA s2A(1)(a).
Constructive dismissal – . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Transco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Cited – Howard v Pickford Tool Co Ltd CA 1951
An unaccepted wrongful repudiation that is not in itself a breach does not give rise to a right in damages. Unless and until the repudiation is accepted the contract continues in existence. Asquith LJ said that an unaccepted repudiation is ‘a thing . .
Cited – Pederson v London Borough of Camden CA 1981
Whether an employer’s behaviour amounts to a fundamental breach of the employment contract is essentially a question of fact for the tribunal. . .
Cited – Roberts v West Coast Trains Ltd CA 16-Jun-2004
The employee had been dismissed. He began a claim for unfair dismissal, but also appealed within his employers’ procedure, accepting a demotion. The tribunal then found that he had not been dismissed.
Held: There had been no dismissal. Had he . .
Cited – W E Cox Toner (International) Ltd v Crook EAT 1981
In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .

Cited by:

Appeal from – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.346166

EAT CONTRACT OF EMPLOYMENT: Damages for breach of contract
UNFAIR DISMISSAL: Compensation
UNFAIR DISMISSAL: Polkey deduction
Claimants all dismissed for redundancy in circumstances which respondents accepted amounted to unfair dismissal due to lack of consultation. Appeal by respondent employers re: (a) award to second claimant of a sum in respect of his breach of contract claim in excess of that which parties had agreed was due, and (b) a sum of andpound;5000 awarded to each claimant in respect of a ‘valuable expectation that if they were threatened with redundancy they would be generously compensated’. Cross appeal re: (a) Polkey deduction, and (b) periods in respect of which loss of earnings awarded. Appeal upheld and cross appeal (restricted to Polkey deduction) refused.

Citations:

[2008] UKEAT 0020 – 08 – 2110

Links:

Bailii

Citing:

Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.346176

EAT Working Time Regulations.
Annual leave of offshore workers. Whether employers had given regulation 15 notices. Whether annual leave could be taken out of onshore ‘field breaks’.
Appeal allowed and claims under regulation 30 of WTR dismissed. Regulation 15 notices had been given by employers in response to requests for annual leave and annual leave could be taken out of field breaks.

Judges:

Lady Smith

Citations:

[2008] UKEAT 0029 – 08 – 1612

Links:

Bailii

Statutes:

Working Time Regulations 1998

Citing:

See Also – Transocean International Resources Ltd and others v Russell and others EAT 4-Oct-2006
EAT The claimants were offshore workers the vast majority of whom were employed to work on installations situated on or over the UK Continental Shelf (‘UKCS’). They presented applications to the Employment . .

Cited by:

See Also – Tl Russell and Others v Transocean International Resources Ltd and Others SCS 19-Oct-2010
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.346179

EAT JURISDICTIONAL POINTS: Worker, employee or neither
WORKING TIME REGULATIONS: Holiday pay
Whether ‘workers’- whether contracts for personal services – contractual right to use substitute labour – Protectacoat; Buckborough; Kalwak and earlier cases considered. Appeal allowed. The Claimants not engaged under contracts to work/provide services personally.

Citations:

[2009] UKEAT 0488 – 08 – 0805

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346169

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
Claimant dismissed for misconduct – Internal appeal panel decision announced orally without reasons two days before expiry of three-month limit under s. 111 (2) of Employment Rights Act 1996 – On basis of oral decision, Claimant believes ‘hopeless’ to bring unfair dismissal claim – On receipt of written decision received after expiry of time limit, Claimant believes that he does after all have grounds for bringing claim – Tribunal holds not reasonably practicable to present claim until receipt of written reasons – Appellant employer accepts (in light of Ashcroft [2008] ICR 613 and Bevan [2008] ICR 682) that Claimant was entitled to wait until outcome of appeal known but contends that at that point he knew all that he needed to bring the claim and that the written reasons gave him no new grounds.
Held, dismissing appeal, that the Tribunal was entitled to hold that the appeal panel’s written reasons genuinely changed Claimant’s belief in the viability of his claim and that that change was reasonable – Machine Tool Industry Research Association v Simpson [1998] ICR 558 applied – Consideration of effect of Machine Tool, Churchill v A Yeates and Sons Ltd. [1983] ICR 531, and Marley (UK) Ltd. v Anderson [1996] ICR 728.

Citations:

[2009] UKEAT 0108 – 09 – 0805

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346167

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
JURISDICTIONAL POINTS: 2002 Act and pre-action requiments
The Employment Tribunal conflated the requirements placed on employers under Part 1 of Schedule 2 of the Employment Act 2002 with the duty to conduct a fair and proper disciplinary process. The statute placed minimum requirements only on employers; the sanction for failure to comply with those minimum requirements was a finding of automatic unfair dismissal with uplifted compensation. The standard required of an employer was to show that a dismissal was not unfair under s.98(4) of the Employment Rights Act 1996.

Citations:

[2009] UKEAT 0355 – 08 – 2701

Links:

Bailii

Employment

Updated: 26 July 2022; Ref: scu.346159

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 fact, nor any other challengeable basis in law (ii) no vitiated discretion in refusing an adjournment in the light of those findings.

Judges:

Burton J

Citations:

[2008] UKEAT 0165 – 08 – 1811

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 . .
At EAT – 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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.278807

Citations:

[2000] EAT 1362 – 99 – 0404

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 July 2022; Ref: scu.265050

The applicant appealed a finding that his dismissal had not been unfair. On applying for the post he had exaggerated his qualifications, and would not have been appointed without them. He asserted that the chairman of the tribunal had been biased against him in the excessive interruptions which had intimidated his witnesses. The test of bias was whether a fair-minded and informed observer might conclude there was a real possibility that the tribunal was biased. The true nature of the claimant’s claim had only become clear as the hearing had progressed. He had been heard over four days, and could not be said to have had his opportunity to present his case restricted. Despite faults, a fair minded observer would not conclude there was any bias in the chairman.

Citations:

EAT/1193/00, [2001] UKEAT 1193 – 00 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 July 2022; Ref: scu.203602

Procedural fairness

Citations:

[1990] IRLR 426

Jurisdiction:

England and Wales

Cited by:

Cited – M Iqbal v Consignia Plc EAT 5-Dec-2002
EAT Procedural Issues – Employment Tribunal
The claimant had had his claims for discrimination rejected. He was found to have been unfairly dismissed, but with nil compensation because of what was found to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.194934

Citations:

[2003] EAT 0170 – 03 – 1605, [2003] UKEAT 0170 – 03 – 1605

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 July 2022; Ref: scu.191572

An employer may engage in conduct which is ‘out of order’ without repudiating the contract, but repeated behaviour of that kind may be a different matter. The use of abusive language by an employer can undermine the relationship of trust and confidence with an employee.

Citations:

[2002] IRLR 267

Jurisdiction:

England and Wales

Cited by:

Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 July 2022; Ref: scu.185212