EAT UNFAIR DISMISSAL
Fundamental breach of employment contract alleged to entitle the Appellant, a trainee doctor, to repudiate his contract with the NHS Trust. Tribunal is alleged to have failed to take into account allegations of bad faith made against the employer in its determination to dismiss the Appellant by any means and its choice of the wrong disciplinary procedure. Appeal dismissed. The Tribunal considered all the matters properly and the appeal had no merit.

Citations:

[2008] UKEAT 0103 – 08 – 2207

Links:

Bailii

Employment

Updated: 18 July 2022; Ref: scu.271330

EAT AGE DISCRIMINATION
UNFAIR DISMISSAL: Compensation
The claimant contended that she suffered both direct and indirect discrimination on grounds of age because of the way in which the employer’s redundancy scheme was structured. Redundancy payments were dependent on age and length of service but in a relatively complex way. She claimed to have been significantly disadvantaged by comparison with certain older workers, and also by those with longer service. It was conceded that there was prima facie direct discrimination.
The Tribunal found that the discrimination was justified. The claimant appealed and the EAT upheld the appeal on the grounds that whilst the Tribunal had identified certain legitimate aims which the scheme was designed to achieve, there had been no proper attempt to determine whether the means adopted were proportionate to those aims, having regard to the significant detriment suffered by the claimant.
On an entirely separate point, an appeal was allowed with respect to a small point concerning the assessment of compensation for an automatically unfair dismissal.

Judges:

Elias J P

Citations:

[2008] UKEAT 0119 – 08 – 2207, [2008] IRLR 846, [2008] ICR 133

Links:

Bailii

Cited by:

Cited – Rolls Royce Plc v Unite the Union QBD 17-Oct-2008
The company had entered into collective agreements with the union governing criteria and procedures for redundancy selection. The company said that the criteria were not compliant with the age discrimination regulations.
Held: The union was . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.271328

EAT UNLAWFUL DEDUCTION FROM WAGES
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether applicable

Impact on compensation
The employee was suspended without pay when dismissed for refusing to work on Mondays when he was contractually obliged to do so. The employer appealed against the award as an unlawful deduction of wages during the suspension without pay. Held that the Employment Tribunal had, on the hypothesis that there was a contractual right to suspend without pay, correctly held that the statutory disciplinary and dismissal procedure applied, at least as to Step 1, and had not been complied with; and that on the terms of the relevant document, in the circumstances the employer could not lawfully exercise that right. Therefore the employee was entitled to his wages, less any deduction in respect of Mondays, pursuant to Miles v Wakefield, the extent of which was remitted to the Employment Tribunal to ascertain.
The Employment Tribunal erred in failing to consider what uplift on the sum unlawfully deducted should be made pursuant to Section 31 of the Employment Act 2002.

Judges:

Burke QC J

Citations:

[2008] UKEAT 0547 – 07 – 1706

Links:

Bailii

Employment

Updated: 18 July 2022; Ref: scu.271325

Entitlements of agency workers.

Citations:

[2008] EWCA Civ 847

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 July 2022; Ref: scu.271223

The appellant had employed the three claimants in his medical surgery, but they claimed automatic unfair dismissal when the practice closed on his suspension from practice and the statutory procedures were followed but not to the procedural standard, alleging unreasonable delay in the appeals.
Held: The employer’s appeal succeeded. The employees’ appeals failed. There was a distinction between non-completion of a procedure and non-compliance with it and the delay in completing the procedure did not mean the procedure was incomplete, thus rendering the dismissal automatically unfair.
Mummery LJ said: ‘neither the 2002 Act nor the Regulations have an impact on this case. The interpretation provision in Regulation 2 simply makes it clear that non-commencement of a procedure is included within expression ‘non-completion.’ In dealing with failure to comply with the statutory procedures, however, Regulation 12 clearly proceeds on the assumption that the statutory procedure has not been completed. It then directs that the non-completion of the procedure is to be attributed to the party, who has failed to comply with a requirement, including a general requirement in Part 3 of Schedule 2 : for example, the person guilty of delay. Regulation 12 can have no application to a case like this where there has been completion of the procedure. ‘ As to the employee’s appeal against the finding that they had claimed for overtime they had not worked: ‘It is still sometimes thought that the ETs determine the guilt or innocence of employees accused of misconduct. That is not the case. The ET is not a court in which the issue of misconduct is tried to determine whether the person dismissed for misconduct did or did not do what was alleged. The issue for the ET is whether the dismissal was unfair. That depends on the belief of the employer that there was misconduct, on his having reasonable grounds for that belief at the time of dismissal, on the reasonableness of his investigation and other factors.’

Judges:

Mummery LJ

Citations:

[2008] EWCA Civ 862, [2008] IRLR 824, [2008] ICR 1236

Links:

Bailii

Statutes:

Employment Rights Act 1996 94 98A, Employment Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – Khan and Another v The Home Office EAT 17-Nov-2006
EAT This complex appeal raised issues in 10 jurisdictions. Primarily the Claimants, who won unfair dismissal and sex discrimination and race discrimination claims, contended that their dismissals were tainted by . .
Cited – Yorkshire Housing Ltd v Swanson EAT 12-Jun-2008
EAT Statutory Discipline and Grievance Procedures
Whether the Claimant was automatically unfairly dismissed under section 98A ERA because the Respondents failed to comply with the general requirement not to . .
Cited – The Home Office v Khan and others EAT 14-Feb-2008
EAT Unfair Dismissal – Reinstatement/re-engagement
Practice and Procedure – 2002 Act (‘uplift’)
Race Discrimination – Other losses (compensation for loss of earnings)
Appeal against order for . .
Cited – Sovereign Business Integration Plc v Trybus EAT 15-Jun-2007
. .
Appeal from – Wilmot and others v Selvarajan EAT 12-Oct-2007
EAT Unfair Dismissal – Reasonableness of dismissal / Automatically unfair reasons
Disability Discrimination – Reasonable adjustments
Race discrimination – Victimisation
Ordinary unfair dismissal . .

Cited by:

Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Cited – Hamilton v Lisburn City Council NIIT 1-May-2009
. .
Cited – Gerstenkorn v Belfast Health and Social Services NIIT 13-Oct-2008
. .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.271027

EAT JURISDICTIONAL POINTS: Worker, employee or neither
Whether Claimants were (a) employees or (b) limb (b) workers. Answer no and yes. Appeal allowed in part.

Judges:

Peter Clark J

Citations:

[2008] UKEAT 0160 – 08 – 0406

Links:

Bailii

Cited by:

Appeal from – Autoclenz v Belcher and others CA 29-Sep-2008
Leave granted to appeal. . .
At EAT – Autoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
At EAT – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.270857

EAT UNFAIR DISMISSAL
Exclusions including worker/jurisdiction
CONTRACT OF EMPLOYMENT
Whether established
Wrongful dismissal
Triangular relationship. ET finding that worker was employed by neither agency nor end-user. Appeal against end-user finding dismissed JAMES (EAT and CA) applied.

Citations:

[2008] UKEAT 0121 – 08 – 2406

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270921

Citations:

[2000] UKEAT 465 – 00 – 0707

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Botham v Destec Engineering Ltd EAT 11-Oct-2001
EAT Unfair Dismissal – Compensation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.265361

EAT Unfair Dismissal: Reasonableness of Dismissal
Unfair Dismissal. Conduct. Procedural fairness. Range of reasonable responses test applied. Employment Tribunal decision reversed.
EAT Unfair Dismissal – Compensation.
EAT Unfair Dismissal – Reasonableness of dismissal.

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0067/05, [2005] UKEAT 0067 – 05 – 1910

Links:

Bailii, EAT

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.234415

Citations:

[2001] EWCA Civ 1977

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.218564

Application for order to Tribunal chairman to produce his notes of Evidence.
Held: The court would have been ready to cut through the requirements established in Webb and the relevant Practice Note if that were required to do justice to the appellant, but that was not so.

Judges:

Butter QC HHJ

Citations:

[1997] UKEAT 210 – 97 – 2002

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 57A

Jurisdiction:

England and Wales

Citing:

Cited – Webb v Anglian Water Authority EAT 1981
If reference needs to be made to the evidence for the purposes of a statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.207219

Citations:

[1993] UKEAT 357 – 92 – 2306

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.210642

EAT Unfair Dismissal – Compensation

Judges:

His Hon Judge Birtle

Citations:

EAT/809/02, [2003] EAT 809 – 02 – 1104, [2003] UKEAT 809 – 02 – 1104

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

See Also – Gamestec Leisure Ltd v Stone EAT 15-Apr-2003
EAT Procedural Issues – Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.181963

EAT Unfair Dismissal – Compensation

Judges:

His Honour Judge Peter Clark

Citations:

EAT/465/00, [2001] UKEAT 465 – 00 – 1110

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Botham v Destec Engineering Ltd EAT 7-Jul-2000
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.168350

Appeal from dismissed of the claims brought by the Claimant against her employer (the Respondent) of unfair dismissal, victimisation, wrongful dismissal and wrongful deduction of wages.

Citations:

[2018] EWCA Civ 2605

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.630752

Judges:

Mr Justice Supperstone

Citations:

[2012] EWHC 2685 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.464691

Judges:

Cox J

Citations:

[2009] EWHC 3541 (QB), [2010] IRLR 423

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – British Airways Plc v Unite The Union QBD 17-May-2010
The Union had taken a vote of its cabin crew members as to a strike. The airline sought an interim injunction to prevent the strike, saying that the Union had not met the requirements of the Act as to proper notification of the results.
Held: . .
See Also – British Airways v Unite The Union CA 20-May-2010
The Union appealed against an interim injunction disallowing it from relying on a strike ballot. The Judge had said that it had failed to comply with section 231 in that in announcing the results of the ballot, the union had not taken active steps . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.402525

EAT PRACTICE AND PROCEDURE: Perversity
The decision of the Employment Tribunal was based on a clear failure to understand undisputed facts that were central to its decision. The failure was so clear and fundamental as to give rise to an error of law. British Telecommunications v Sheridan [1990] IRLR 27 (CA) applied.

Citations:

[2009] UKEAT 0461 – 08 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.361498

EAT PRACTICE AND PROCEDURE – Time for Appealing – Disposal of appeal including remedy
UNFAIR DISMISSAL – UNLAWFUL DEDUCTION
CONTRACT OF EMPLOYMENT: Damages for breach of contract – Appeal against Registrar’s Order. Effect of Certificate of Correction to ET judgment. Interrelationship between Rules 3(7) and 3(10) of EAT Rules.

Citations:

[2008] UKEAT 0710 – 07 – 1405

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.270719

EAT PRACTICE AND PROCEDURE
Withdrawal
Striking-out/dismissal
This was an appeal against the Order of the Registrar in which the appellant claimed that she should be allowed to make an application out of time to set aside an Order in which her appeal to the EAT had been dismissed on her withdrawal. She alleged that she was suffering at the time from a mental illness and was not in an appropriate state properly to conduct her affairs. The EAT rejected the appeal and held that the medical evidence was far too thin; it also took into account the history of this litigation, and had some regard to the potential merits of the grounds of appeal.

Citations:

[2008] UKEAT 0336 – 05 – 0107

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270731

EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
Employee lodged a grievance but stated that it was intended to be informal and not a statutory grievance. Employment Tribunal held that in the circumstances it could not be treated as a statutory grievance, and since no other grievance had been lodged prior to presenting the claim, the Tribunal had no jurisdiction to hear the case.
EAT upheld the appeal and concluded that the grievance fell within the terms of the statute.

Citations:

[2008] UKEAT 0049 – 08 – 0207

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270732

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 procedure. The Tribunal held that they considered that the employers had acted unreasonably, but that applying the principle adopted in Abbey National plc v Fairbrother [2007] IRLR 320 the grievance had been handled in the way a reasonable employer could have dealt with it and accordingly there was no repudiatory breach of contract.
The EAT held that this was a conclusion which the Tribunal was entitled to reach on the evidence. Accordingly, the appeal was dismissed. Observations on the reasoning in the Fairbrother case.
Elias P observed by reference to Sharp, that it is well-established that unreasonable conduct alone is not enough to amount to a constructive dismissal.

Judges:

Elias J P

Citations:

[2008] UKEAT 0188 – 08 – 0407, [2008] IRLR 672, [2008] ICR 1267

Links:

Bailii

Citing:

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 – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
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 – 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 – Pedersen v Camden London Borough Council CA 1981
The test for determining whether there has been a repudiatory breach of contract sufficient to entitle the employee to leave and claim constructive dismissal is an objective one to be determined by the Tribunal itself. The Employment Appeal Tribunal . .
Cited – GAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal . .
Cited – Hamilton v Tandberg Televison Ltd EAT 12-Dec-2002
The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
Cited – W A Goold (Pearmak) Ltd v McConnell and Another EAT 28-Apr-1995
It is an implied term in a contract of employment that employers should reasonably and promptly afford employees a reasonable opportunity to obtain redress of any grievance. Morison J said: ‘It is clear therefore that Parliament considered that good . .
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 – 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 – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .

Cited by:

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 – 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: 17 July 2022; Ref: scu.270725

EAT PRACTICE AND PROCEDURE: Withdrawal
The appellant failed in pursuing unfair dismissal and wrongful dismissal claims in the Employment Tribunal. He appealed and was rejected under rule 3(7) and again after submitting a fresh ground of appeal under rule 3(8). He sought an oral hearing pursuant to rule 3(10). Before the application was heard, he applied for the appeal to be withdrawn. The Registrar acceded to the application and made an order dismissing the appeal. The applicant claimed to have made the application under a misunderstanding of the position of the respondent. He sought to have the order overturned.
On appeal, the President held that the decision to dismiss the appeal was, in the circumstances, plainly correct. The appeal was dismissed.

Citations:

[2008] UKEAT 1376 – 07 – 3006

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270722

EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of advice given by a qualified solicitor. The employment judge rejected the claim on the grounds that the advice was protected by both legal advice and litigation privilege. The claimant appealed arguing that the advice had not been given by the solicitor acting as solicitor, and that as regards litigation privilege, the dominant purpose in obtaining the advice was not any contemplated legal proceedings.
The EAT held that quite independently of privilege, the advice should not be disclosed because it was not relevant. In any event the judge had been entitled to find that even if relevant it was protected by legal advice privilege, although on the facts litigation privilege could not be made out.

Citations:

[2008] UKEAT 0213 – 08 – 0407

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270729

EAT Reasonableness of dismissal
CONTRACT OF EMPLOYMENT
Implied term/variation/construction of term
Construction of a contact as to whether overtime would be paid for. The Employment Tribunal’s error on this (if based on the written contractual terms, and in the absence of any cogent evidence that those terms had been amplified or varied by practice or further agreement) underpinned its findings as to the fairness of dismissal, purportedly for disobedience to a reasonable instruction, since if overtime was not to be paid for the instruction to work it might not be reasonable, or, if reasonable, the refusal to work it might, in the circumstances, not have merited dismissal. Unfairness remitted to a fresh Tribunal.

Citations:

[2008] UKEAT 0548 – 07 – 1804

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270718

EAT PRACTICE AND PROCEDURE
Striking-out/ dismissal
Review
The Employment Tribunal made an unless order against the claimant requiring her to take positive steps by a particular date. The Tribunal concluded that she had failed to take those steps and her case was automatically struck out. She sought a review to have the case reinstated. The employment Judge granted the review but refused any relief. She appealed both decisions.
The EAT held that there was no error of law by the Tribunal. Appeals dismissed.

Citations:

[2008] UKEAT 0139 – 08 – 0407

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.270727

EAT PRACTICE AND PROCEDURE: Amendment
Claimant brought a claim for, inter alia, racial discrimination against his employers, who were a company – When it appeared that the company was likely to be dissolved, he applied for permission to amend to include a claim against the individual alleged to have discriminated against him – That application was refused – Four months later he repeated the application on the basis that the dissolution had now occurred – The Chairman refused the application on the basis that it had already been considered – Held that he was entitled to do so: there was no material change of circumstances, and no other exceptional reason why the claimant should be allowed to renew his application in the interests of justice.

Citations:

[2008] UKEAT 0510 – 07 – 0804

Links:

Bailii

Citing:

Cited – Transport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment

Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.270716

EAT PRACTICE AND PROCEDURE: Chairman alone
The employer was debarred from participating in the proceedings for failing to lodge a response in time. The subsequent case was heard before an employment judge alone. The issue arose whether she had jurisdiction to hear it, or whether a full panel should have been provided. The EAT held that she did have jurisdiction.

Citations:

[2008] UKEAT 0111 – 08 – 0207

Links:

Bailii

Statutes:

Employment Tribunals Act 1996

Employment

Updated: 17 July 2022; Ref: scu.270730

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
An employment tribunal whose decision simply repeated verbatim the closing written submissions of one party and ignored those of the other party, and in doing so did not make a clear distinction between submissions and findings of fact, had failed to comply with the requirements of due process and of Rule 30(6) of the ET Rules of Procedure.

Citations:

[2008] UKEAT 0027 – 08 – 0307

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270728

Citations:

[2008] EWHC 1458 (Admin)

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270610

Citations:

[2002] EWCA Civ 1218, [2003] CP Rep 21, [2003] UKHRR 238, [2002] ICR 1507, [2002] HRLR 46, [2002] IRLR 714

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Lawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See Also – Lawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See Also – Lawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
Cited – AA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .

Cited by:

Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Lawal v Northern Spirit Ltd CA 19-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.270476

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
Employment Tribunal Judge extended time for an unfair dismissal claim by some eighteen months. The claimant relied on very severe and lengthy depression as an explanation for the failure but produced no medical evidence. The evidence was that she had asked her union official to put in her claim but the union had by oversight failed to do so. The Employment Judge accepted her evidence, notwithstanding the lack of supporting medical evidence, and held that she had reasonably believed that the union would lodge her claim.
The EAT held that in the Employment Judge had erred in law. Her trade union had been authorised to lodge the claim and had failed to do so. On the evidence, she had not merely believed that they would do so, but that was a correct belief. It could not be said that it was not feasible to put in her claim because the union could have done so. In addition, the judgment was not Meek compliant in certain respects. However, in the particular circumstances the Tribunal was entitled to assess her medical state on the basis of her own evidence and without medical evidence.
Substituting a finding that the claim was not pursued in time.

Citations:

[2008] UKEAT 0155 – 08 – 2406

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270390

EAT PRACTICE AND PROCEDURE: – Appearance/response – Costs – Appellant failed to put in a response. Default judgment entered. Appellant applied for review. Respondent had been employed for less than 12 months but claimed to have been dismissed for ‘health and safety’ reasons. Appellant asserted the Respondent was dismissed for redundancy. Employment Tribunal refused to set aside judgment and held there was no application to extend time for the response with the consequence Appellant could not be heard at the remedies hearing.
Held: default judgment to stand but response to be accepted out of time so Appellant could participate in the remedies hearing.

Citations:

[2008] UKEAT 0539 – 07 – 0205

Links:

Bailii

Citing:

Cited – NSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.270231

EAT PRACTICE AND PROCEDURE – Successful Claimant cannot appeal against failure of the Employment Tribunal to make immaterial findings of fact she would have liked or to correct immaterial errors of fact which do not affect the decision.

Judges:

Reid QC HHJ

Citations:

[2008] UKEAT 1639 – 07 – 3004

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.270232

Citations:

[2008] EWCA Civ 680

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.269973

EAT Working Time Regulations: Worker / Holiday Pay
Contractual obligation to perform personal services and whether the Claimant bricklayers were a business undertaking by reason of their contractual relationship with the Respondents. Failure of the Employment Tribunal to give proper consideration to the contractual terms. Remission to fresh tribunal for ascertainment of worker status and whether there could be set off of rolled up holiday pay.

Citations:

[2008] UKEAT 0544 – 07 – 1106

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.269776

EAT National Minimum Wage
Where restaurant or bar service charges are paid by the customer to the employer, but are then paid into a troncmaster’s bank account for distribution by him/her in accordance with a tronc scheme agreed between the troncmaster and employees, the sums so distributed to employees are not ‘paid by the employer’ for the purposes of being included in the National Minimum Wage calculation.

Judges:

Wilkie J

Citations:

[2008] UKEAT 0562 – 07 – 1306, [2008] ICR 1076

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Annabel’s (Berkeley Square) Ltd and Others v Revenue and Customs CA 7-May-2009
The court considered whether tips paid at a restaurant by means of a credit card or cheque thus becoming the employer’s money could properly count toward the minimum wage when paid on to the employee. The revenue contended that the money received . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.269778

EAT Unlawful Deduction from Wages
One week’s pay in hand. Whether paid. SSP – whether the position on the facts was whether Miss Crittenden was owed one week’s SSP. Appeal allowed in part.

Citations:

[2008] UKEAT 0017 – 08 – 2404

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 17 July 2022; Ref: scu.269783

EAT UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal
The tribunal found that a dismissal was unfair because the employers had adopted unfair procedures. In particular, they had relied on police witness statements in circumstances where they should have carried out their own inquiries. The EAT upheld the appeal on the grounds that although in form the tribunal had directed itself properly, in fact it had fallen into the trap of substituting its view for that of the employer. Finding of fair dismissal substituted.

Citations:

[2008] UKEAT 0503 – 07 – 1206

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.269779

EAT Unfair dismissal – Constructive dismissal
Practice and Procedure – Perversity – Bias, misconduct, and procedural irregularity
ET finding of fact, critical to conclusion on Constructive Dismissal, falling between evidence given by witnesses. Whether no evidence to support that finding (perversity); whether procedural unfairness in not giving parties an opportunity to make submissions on that possible finding of fact (procedural irregularity). Appeal dismissed.

Citations:

[2008] UKEAT 0459 – 07 – 2404

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Woodhouse School v Webster CA 18-Feb-2009
The school appealed against a finding that it had constructively dismissed the claimant. The claimant had refused an order to dismiss a staff member for profound bilateral deafness, saying that that would be unlawful. He had left rather than obey an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.269784

EAT Transfer of Undertakings – Where, in connection with a transfer, the transferee directs the transferor to dismiss an employee in the claim that she had previously taken the transferee to an Employment Tribunal, the employee has a claim under s104 of the Employment Rights Act 1996 against the transferee.

Citations:

[2008] UKEAT 0616 – 07 – 0205

Links:

Bailii

Statutes:

Employment Rights Act 1996 104

Employment

Updated: 17 July 2022; Ref: scu.269774

EAT Unlawful deduction from Wages
The Employment Judge upheld the Claimant’s claim for wages in part and awarded andpound;700 odd. He contended he was not given the chance to produce documents. The Employment Judge was asked by the EAT to look again at her calculations and confirmed them. There was no error of law in her sums, based not only on documents but of her appreciation of the evidence given by the Claimant. Application to adduce fresh evidence refused.

Citations:

[2008] UKEAT 0589 – 07 – 0905

Links:

Bailii

Employment

Updated: 17 July 2022; Ref: scu.269773

EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is disagreement as to whether an employee’s contract is now to be with the transferor or any of the transferees, considered. The Tribunal had decided that where employees were dismissed, it was permissible to decide that the rights and obligations under this contract should be apportioned on a percentage basis between transferees. This was held an error. The Tribunal should have applied the approach in Botzen, adopted where there was a transfer of an undertaking under the 1981 Regulations, to a change of service provider under the 2006 Regulations.

Judges:

Langstaff J

Citations:

[2008] UKEAT 0488 – 07 – 2504, [2008] ICR 1030, [2008] IRLR 682

Links:

Bailii

Statutes:

Transfer of Undertakings Protection of Employment Regulations 2006, Interpretation Act 1978 6

Jurisdiction:

England and Wales

Citing:

Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Arie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv ECJ 7-Feb-1985
ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, . .
Cited – Duncan Webb Offset (Maidstone) Ltd v Cooper and Another EAT 15-Jun-1995
A company owned subsidiary companies in the printing industry at Maidstone, Basildon and St Albans. Three employees worked for the group. The Maidstone business was transferred in a transfer to which the 1981 Regulations applied. The three employees . .

Cited by:

Cited – Clearsprings Management Ltd v M Ankers and others EAT 24-Feb-2009
EAT TRANSFER OF UNDERTAKINGS
Whether relevant transfer by way of SPC (TUPE 2006, reg 3(1)(b) and (3). The Employment Tribunal entitled to find that service provided by putative transferor too fragmented to . .
Cited – Metropolitan Resources Ltd v Churchill Dulwich Ltd and Others EAT 24-Jun-2009
metro_churchillEAT2009
EAT TRANSFER OF UNDERTAKINGS: Transfer
Migrant Helpline, on behalf of the Home Office; had a contract with Churchill Dulwich Ltd – in Liquidation (‘CD’) by which CD provided accommodation to asylum seekers. . .
Cited – Ward Hadaway Solicitors v Love and Others (Rev 1) EAT 25-Mar-2010
EAT TRANSFER OF UNDERTAKINGS: Service Provision Change
When the NMC after competitive tender gave a new contract for future solicitors’ regulatory services to Capsticks, and none of the work in progress was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 17 July 2022; Ref: scu.269767

Citations:

[1994] UKEAT 1252 – 94 – 2305

Links:

Bailii

Cited by:

See Also – Horst and others v High Table Ltd EAT 23-Apr-1996
. .
See Also – High Table Limited v Horst, Jowett and and Burley CA 1-Jul-1997
The place where an employee was employed for the purposes of the employer’s business was to be determined by a consideration of the factual circumstances which obtained until the dismissal. Where an employee had worked in only one location under his . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.269668

Attempt to enforce restrictive covenant in employment contract.

Judges:

Field J

Citations:

[2007] EWHC 2720 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.261577

Judges:

Gray J

Citations:

[2007] EWHC 1118 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.252373

CJEU Failure of a Member State to fulfill obligations Directive 2002/90 / EC Irregular Entry, Transit and Residence Assistance Failure to transpose within the prescribed period

Citations:

C-48/06, [2006] EUECJ C-48/06

Links:

Bailii, Bailii

Jurisdiction:

European

Employment

Updated: 15 July 2022; Ref: scu.246856

CJEU (Staff Regulations) Officials – Promotion – Article 45 of the Staff Regulations – Amendment of Staff Regulations – Application in time – 2004 promotion exercise – Non-inclusion on the list of eligible officials – Taking into account the probationary period for calculating minimum seniority two years old

Citations:

[2006] EUECJ F-77/05

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 15 July 2022; Ref: scu.246786

EAT Contract of Employment – Notice and pay in lieu.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/0137/05, [2005] UKEAT 0137 – 05 – 0407

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.230085

Citations:

[2001] EWCA Civ 2022

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.218583

Citations:

[2001] EWCA Civ 1985

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Bedfordshire Police v Liversidge EAT 10-Jul-2000
. .
Appeal from – Chief Constable of Bedfordshire Police v Liversidge EAT 21-Sep-2001
The Chief Constable appealed against a refusal to strike out a claim by the respondent that he had racially discriminated against her. Force members had used code words for racially abusive terms about her. The claim was that he was vicariously . .

Cited by:

See Also – Chief Constable of Bedfordshire Police v Liversidge EAT 13-Dec-2001
. .
See Also – Bedfordshire Police v Liversidge CA 24-May-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.218592

Citations:

[2002] EWCA Civ 711

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.217204

Citations:

[1995] UKEAT 505 – 94 – 2107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.209248

Citations:

[2002] UKEAT 1284 – 00 – 0603

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal From – Curr v Marks and Spencer Plc CA 13-Dec-2002
The claimant had been employed by the respondent, but after taking maternity leave had been made redundant. The employer claimed her continuous employment had been broken.
Held: The section intended to protect continuous employment despite . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.202597

Citations:

[1994] UKEAT 687 – 92 – 0107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.210086

The defendant appealed awards against it of disturbance payments to the claimants under their contracts of employment. The claimants had produced documents at the last minute before the trial but it was arguable that since these documents were those of the defendants, they should heve been disclosed anyway.
Held: The evidence, however badly introduced had been admitted by agreement. However, the judge feared being unable to conclude the case, and so restricted cross-examination, and refused admission of further evidence in rebuttal. The trial suffered a serious procedural irregularity, and a retrial was ordered.

Judges:

Lord Justice Brooke, Lord Justice Waller And Lord Justice Clarke

Citations:

[2003] EWCA Civ 1261

Links:

Bailii

Statutes:

Civil Procedure Rules 52.3(b)

Jurisdiction:

England and Wales

Citing:

Cited – Darren Watson v Chief Constable of Cleveland Police CA 2001
The Court of Appeal should only interfere with a judge’s decision to limit cross-examination if the decision is outside an acceptable range of decisions at which a judge can legitimately arrive . .
Lists of cited by and citing cases may be incomplete.

Employment, Civil Procedure Rules

Updated: 15 July 2022; Ref: scu.186257

EAT Practice and Procedure – Case Management – The Claimant is pursuing claims of sex discrimination, harassment, victimisation and whistle blowing before the Employment Tribunal (‘ET’). She applied for a witness order in respect of a former colleague, who initially agreed to attend as the Claimant’s witness but subsequently declined, citing issues relating to her pregnancy and referring to a non-disclosure agreement (‘NDA’) with the First Respondent. The ET declined to make any decision on the application without first receiving representation from the Respondents. The Claimant appealed.
Held: dismissing the appeal
There was no requirement that other parties be notified of an application for a witness order under rule 32 of the ET Rules (see rule 92) but it was expressly allowed that an ET might depart from that general rule where it considered it was in the interests of justice to do so. In any event, if the ET decided to grant the application, it would be required to communicate its decision to all parties to the proceedings ( Jones v Secretary of State for Business and Skills UKEAT/0238/16). Here the ET considered it might be assisted by the Respondents when determining issues of relevance and necessity (Dada v Metal Box Company Ltd [1974] IRLR 251 NIRC) and thus decided that the Respondents should be notified of the application in advance. There was no general rule that this additional procedural step was required because the witness had agreed an NDA, but it could not be said that the ET’s decision amounted to an error of law or was perverse.

Citations:

[2019] UKEAT 0137 – 19 – 2005

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.639653

Practice and Procedure – Disclosure

Citations:

[2019] UKEAT 0113 – 18 – 2606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.639654

Judges:

Underhill, Lewison, King LJJ

Citations:

[2019] EWCA Civ 1185, [2019] WLR(D) 399

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.639662