UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
CONTRACT OF EMPLOYMENT – Wrongful dismissal
In respect of the two grounds of appeal brought by the Appellant employer:
Ground 1
Appeal allowed: the Tribunal had erred in its approach to a claim for unauthorised deduction of wages arising from non-payment of a contractual car allowance. In upholding that claim, the Tribunal had failed to: (1) consider the significance of an express term requiring that the car in question be less than 3 years old; (2) address whether and, if so, by what means, that term had been varied so as to remove the relevant requirement, or it was inequitable for the Appellant to enforce it; and (3) make all prior necessary findings of fact.
Ground 2
Ground 2 comprised two parts:
(a) Appeal dismissed: the Tribunal had not erred in determining the Respondent’s claim for wrongful dismissal, notwithstanding its earlier erroneous statement that his claim had been limited to one for unauthorised deduction of wages. At all material times, both parties and the Tribunal had been aware that a claim for wrongful dismissal and an award of notice moneys was being pursued by the Respondent and both parties had made submissions to the Tribunal at the full merits hearing on that basis. There being no appeal from the Tribunal’s substantive findings in that claim, those findings stand.
(b) Appeal allowed: the Tribunal had erred in determining that the Appellant’s employer’s contract claim could not proceed on the basis that the Respondent’s claim had been limited to one for unauthorised deduction of wages. First, the Claimant’s claim had not in fact been so limited (see paragraph (a) above). In any event, the Appellant’s entitlement to bring an employer’s contract claim had arisen when the Respondent had brought proceedings in respect of a claim under Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and would have been unaffected by any subsequent abandonment or withdrawal of that claim by the Respondent.
Disposal
The Respondent’s claim for unauthorised deduction of his car allowance, together with the Appellant’s employer’s contract claim, would be remitted for determination by a freshly constituted tribunal, in accordance with the EAT’s judgment. If, as had been indicated to the EAT, the Appellant no longer wishes to pursue its employer’s contract claim before a tribunal, it should make the appropriate application to the Tribunal. If that claim is to be pursued before the Tribunal, all necessary prior directions will need to be given, enabling clear identification of the issues to be determined at the Full Merits Hearing. The relevance to the employer’s contract claim of the Tribunal’s undisturbed findings in respect of the claim for wrongful dismissal will be a matter for the Tribunal (or any court) seised of the former claim to consider.

Citations:

[2019] UKEAT 0252 – 18 – 2805

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.639329

(Practice and Procedure – Reconsideration) The Employment Judge did not give supportable reasons for refusing the Claimant’s application for reconsideration.

Citations:

[2019] UKEAT 0223 – 18 – 0407

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gosalakkal v University Hospitals of Leicester NHS Trust (Costs – Detailed Assessment) EAT 4-Jul-2019
COSTS – Detailed Assessment
1. In conducting a detailed assessment of costs, the Employment Judge misunderstood the degree of overlap between (1) the Claimant’s complaints of ‘whistleblowing’ detriment and automatic unfair dismissal, in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.639331

Citations:

[2015] EWHC 1653 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.549409

EAT DISABILITY DISCRIMINATION
TRADE UNION RIGHTS
Where the ET relied, crucially on material in coming to its decision which did not form part of the explicitly pleaded case with which the appellant’s relevant witness had not been given the opportunity in evidence to deal, the conclusions of the ET could not stand and the matter had to be remitted to a different ET for these issues to be properly adjudicated upon.

Citations:

[2009] UKEAT 0402 – 08 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Abbey National Plc v Bascetta EAT 5-Dec-2008
EAT PRACTICE AND PROCEDURE: Postponement or stay
Employment Tribunal refused to postpone remedy hearing until after appeals by both parties heard at full hearing by the Employment Appeal Tribunal. Material . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.304522

EAT PRACTICE AND PROCEDURE: Case management
The Claimant had a 10-year history of unsuccessful litigation against the Respondent. When the Claimant was struck off the medical register in 2006 as the respondent says for not paying his dues, and is the claimant contends as victimisation, the procedural judge did not err in restricting the evidentiary or background material to 2005 onwards, so confining the case to two not 15 days.

Citations:

[2008] UKEAT 0523 – 07 – 1203

Links:

Bailii

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.268107

EAT UNFAIR DISMISSAL: Constructive Dismissal
Employment Tribunal found that the claimant was entitled to resign and claim constructive dismissal. It was conceded that if there were a constructive dismissal, it was unfair. The claimant alleged some eight different breaches of contract, which cumulatively and separately amounted to a breach of the duty of trust and confidence. The Tribunal found that six complaints were not well founded but that two of the breaches were repudiatory. They upheld the claim for unfair dismissal. The EAT held that the Tribunal was not entitled to reach that conclusion in the circumstances. Case remitted to a fresh tribunal to consider those two issues only. Observations about the nature of the causal connection necessary to link the resignation and the repudiatory breach when a constructive dismissal is claimed.

Citations:

[2008] UKEAT 0472 – 07 – 2305

Links:

Bailii

Cited by:

Cited – Lisboa v Realpubs Ltd and Others EAT 11-Jan-2011
lisboa_realpubsEAT11
EAT SEXUAL ORIENTATION DISCRIMINATION
Whether Respondent’s policy of encouraging a wider clientele at a formerly gay pub involved less favourable treatment of gay customers causing the Claimant to resign in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.268108

EAT JURISDICTIONAL POINTS

Worker, employee or neither
Continuity of employment
The employee, a casual worker, initiated a claim for unfair dismissal. The issue arose whether she had the requisite continuity of employment. The Tribunal found that there was a sufficient mutuality of obligations in the gaps when no work was performed to infer the existence of an umbrella or overarching contract. This gave the Tribunal jurisdiction. The EAT, by a majority, held that the Tribunal had been entitled to reach that view. Appeal dismissed. Discussion on relation between expectations and legal obligations.

Citations:

[2008] UKEAT 0107 – 08 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.268115

EAT Practice and Procedure – Striking-out/dismissal
Strike out claim by virtue of scandalous unreasonable conduct. Whether ET merely considered whether hearing was still permissible and/or a strike out disproportionate.

Citations:

[2008] UKEAT 0028 – 08 – 2805

Links:

Bailii

Employment

Updated: 15 July 2022; Ref: scu.268116

EAT Unfair Dismissal – Reasonableness of dismissal – contributory fault
R was a nurse at a mental hospital. A patient alleged that he had met R outside the hospital and R had taken him to his home where crack had been smoked. R was subject to disciplinary proceedings and dismissed. The ET held that the employer’s investigation was not within the band of reasonable responses, that R had been unfairly dismissed and that there should be no deduction from the award. On the employer’s appeal held: The ET had not substituted its own views for that of the employer, was entitled to hold there should be no deduction from the award and had not reached perverse conclusions. Appeal dismissed.

Citations:

[2008] UKEAT 0019 – 08 – 2305

Links:

Bailii

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: 15 July 2022; Ref: scu.268111

EAT EQUAL PAY ACT: Article 141/European law
Can a woman in an equal pay claim compare herself with a successor? The Employment Tribunal reluctantly held that she could, on the grounds that it was bound by the decision of the EAT in Diocese of Hallam Trustee v Connaughton [1996] ICR 860. The EAT held that the Hallam case was plainly per incuriam and should not be followed. The central issue was whether Article 141, as interpreted in the case law of the European Court of Justice, permits such a comparison. The EAT held that it did not and upheld the employer’s appeal.

Citations:

[2008] UKEAT 0564 – 07 – 2305

Links:

Bailii

Employment

Updated: 15 July 2022; Ref: scu.268117

EAT JURISDICTIONAL POINTS
Agency relationships

Worker, employee or neither

Agency case; the employment tribunal found that there was no contractual relationship between the claimant and the end user. The EAT held that they had applied the wrong approach when considering whether or not a contract had to be implied by necessity. Furthermore, their reasoning was unsatisfactory. Case remitted for reconsideration by a fresh tribunal.

Citations:

[2008] UKEAT 0608 – 07 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.268110

EAT Contract of employment
Written particulars – Implied term / variation / construction of term
The claimant sought to establish the terms of his contract. He claimed that the company was operating a banked hours system which it was not entitled to pursue, and that he was being paid in breach of his contractual rights. The Employment Tribunal rejected his claims and the EAT held that they were entitled to do so.

Citations:

[2008] UKEAT 0609 – 07 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 15 July 2022; Ref: scu.268114

EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – Reasonableness of dismissal
Misconduct dismissal – ET finding of fair dismissal. Whether perverse. Whether ET reasons were Meek-compliant. Whether ET entitled to find that employer has reasonable grounds for his belief in misconduct alleged.

Judges:

Peter Clark HHJ

Citations:

[2008] UKEAT 0329 – 07 – 2501

Links:

Bailii

Employment

Updated: 15 July 2022; Ref: scu.268105

EAT Statutory Discipline and Grievance Procedures – Whether infringed
Practice and Procedure – Application/claim
The ET struck out the employee’s claims against Respondent (1), her employers, and Respondent (2), the managers of the unit in which she worked, that she had been the victim of race discrimination and rejected her review application. The basis of the strike-out was that (1) no grievance alleging race discrimination had been made before presentation of the claim (2) there was no pleaded case against Respondent (2). Held as to (1) the Employment Tribunal, at review, found that a document of 24.5.06, together with a document of 9.10.06, amounted to a sufficient raising of a grievance but that they could not consider the former document under Rule 34(3)(e) because it was not before the Employment Tribunal at the original hearing. Following Flint v EEB [1975] ICR 395, the Employment Tribunal erred in law in not taking the former document into account: there were special circumstances (2) the pleading was sufficient to inform Respondent (2) that a claim was being brought against them under 33(i) of RRA 1976, as aiders of R(1)’s discrimination.

Citations:

[2008] UKEAT 0520 – 07 – 2602

Links:

Bailii

Citing:

Cited – Flint v Eastern Electricity Board EAT 1975
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.268106

EAT Redundancy – Collective consultation and information
Contract of Employment – Notice and pay in lieu
The Employment Judge correctly upheld the Claimant’s account of a meeting where ‘an offer’ to lay off the employee on andpound;19 pw constituted a dismissal. The contractual right to lay off did not arise once the dismissal had been decided.

Judges:

McMullen QC HHJ

Citations:

[2008] UKEAT 0478 – 07 – 3001

Links:

Bailii

Employment

Updated: 15 July 2022; Ref: scu.267945

EAT Practice and Procedure: Preliminary issues
Claim for unfair dismissal and for a protective award for failure to consult re: TUPE transfer in 2005. Neither Respondent was a UK company. Respondents’ case was that there was no relevant transfer under TUPE regulations. Although initially they also challenged jurisdiction under reg.19 of the ET Regulations, they conceded jurisdiction in that respect at a PHR. Question arose as to whether they had also conceded that TUPE applied. Tribunal apparently found that they had not and that even if they had done, that would not rule out the possibility of it determining that it did not if, for instance, it emerged in evidence that the transferring employer was not situated in the United Kingdom immediately before the transfer. The issue, accordingly, remained live. The Claimant appealed, arguing that the Tribunal should not have allowed a concession to be withdrawn. Appeal dismissed by the Employment Appeal Tribunal: the point taken on appeal proceeded on a misconception as to the different nature of the jurisdiction conferred on Employment Tribunals under reg. 19 and a Tribunal’s jurisdiction to afford a remedy under the TUPE regulations.

Citations:

[2008] UKEAT 0040 – 07 – 0603

Links:

Bailii

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: 15 July 2022; Ref: scu.267951

EAT Unfair dismissal – Reinstatement/re-engagement
This appeal, listed for full hearing, raised the ET’s approach to reinstatement and reengagement at a Remedies Hearing and whether the ET had complied with their statutory duty under section 112(2) Employment Rights Act 1996 to explain these remedies to the Claimant and seek his wishes. This duty was held to have been complied with in the circumstances and, no procedural unfairness or prejudice having been caused to the Claimant, his appeal was dismissed.

Citations:

[2008] UKEAT 0352 – 07 – 2105

Links:

Bailii

Employment

Updated: 15 July 2022; Ref: scu.267955

EAT Working Time Regulations
Under WTR Reg 30(4), an Employment Tribunal did not err when it upheld the Claimant’s case for breach of Reg 24 on loss of compensatory time yet awarded no compensation. It considered relevant factors and the employer’s default. The period of time of the default runs from the date of the actual refusal of the employer to permit the exercise of the right, and does not begin on the day the employee takes up employment on that working pattern.

Judges:

McMullen QC J

Citations:

[2008] UKEAT 0618 – 07 – 1003, [2008] IRLR 602

Links:

Bailii

Cited by:

Cited – Prestige Nursing Ltd v Carter EAT 11-May-2012
EAT WORKING TIME REGULATIONS
UNLAWFUL DEDUCTION FROM WAGES
Daily rest and weekly rest periods – not alleged by Claimant that there had been any attempt to exercise the rights which the Respondent had . .
Followed – Carter v Prestige Nursing Ltd EAT 11-May-2012
EAT WORKING TIME REGULATIONS
UNLAWFUL DEDUCTION FROM WAGES
Daily rest and weekly rest periods – not alleged by Claimant that there had been any attempt to exercise the rights which the Respondent had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.267950

EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke – Case management
Joint expert witness appointed by ET. Whether his evidence should be excluded on grounds of bias. Circumstances in which a party may adduce his own expert evidence despite appointment of a joint expert. Principles upon which EAT can interfere with case management orders made by ET.

Citations:

[2008] UKEAT 0591 – 07 – 2105

Links:

Bailii

Citing:

Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.267956

Citations:

[2001] UKEAT 641 – 01 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Bellas v Merseyrail Electrics EAT 17-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 15 July 2022; Ref: scu.204281

Application for leave to appeal against refusal to allow appeal to Employment Appeal Tribunal. No error of law shown.

Judges:

Wall LJ

Citations:

[2008] EWCA Civ 453

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.267568

EAT The claimants were employed by the respondents as cleaners. They worked at a ‘Zara’ store and were dismissed when that client required that they no longer work in their premises. They had been offered alternative employment at another store. They claimed that they had been unfairly dismissed. An Employment Tribunal upheld their claims, holding that the dismissals had been procedurally fair but that ‘a’ reasonable employer would have discussed the terms of the alternative job offer, considered whether the rate of pay could be increased, the hours altered and whether, at the end of their tenure of that cleaning contract, the claimants’ employment would transfer to the new contractor. On appeal, Tribunal’s judgment set aside and a finding of fair dismissal substituted. The Tribunal had erred: they had wrongly approached matters on the basis that all three claimants had made enquiries about whether TUPE would apply and in assuming that the respondents could, in any event, have answered those enquiries. Otherwise, on no view could it be said that no reasonable employer would have failed to consider taking the other steps referred to. Further, the Tribunal, in considering what ‘a’ reasonable employer would have done had failed to apply the correct test in law; they had not asked themselves whether it could be said that no reasonable employer would have failed to take the steps referred to.

Citations:

[2008] UKEAT 0043 – 07 – 0204

Links:

Bailii

Citing:

See Also – Balmain, Liversidge, Liversidge v Atlas Cleaning Ltd EAT 4-Apr-2007
EAT Practice and Procedure – Case management
Employment Tribunal had refused to grant witness order on the application of Claimants in an unfair dismissal claim because (1) dismissal was admitted and so the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.267424

ECJ Directive 97/81/EC Equal treatment of part-time and full-time workers Discrimination Administrative obstacle limiting opportunities for part-time work.

Citations:

C-56/07, [2008] EUECJ C-56/07

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 14 July 2022; Ref: scu.267105

EAT Practice and Procedure – Striking-out/dismissal
Respondents’ response struck out, and they were barred from taking further part in the proceedings because of intimidatory conduct. The Employment Tribunal held that they did not think it likely that a fair trial could be held if the respondents took part. The EAT held that they had a proper evidential basis for that conclusion and that the decision did not reflect any error of law.

Judges:

Elias P J

Citations:

[2008] UKEAT 0048 – 08 – 2204, [2009] IRLR 45

Links:

Bailii

Employment

Updated: 14 July 2022; Ref: scu.267092

EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke – Costs
Substantive appeal on fact only. Costs appeal allowed; ET failed to properly consider 2-stage approach.

Citations:

[2008] UKEAT 0587 – 07 – 2304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.267094

EAT Unfair dismissal – Reasonableness of dismissal – Contributory fault
Nurse doing second job which involved her working excessive hours – Tribunal found that dismissal was not a reasonable sanction having regard to a number of specific mitigating factors but reduced her awards by 30% –
Held: (1) that the Tribunal had not applied the wrong approach or substituted its own decision for that of the employer and that its decision was not perverse; and (2) that the reduction of 30% was on the low side but not to the extent that it could be said to be wrong in law.

Judges:

Underhill P J

Citations:

[2008] UKEAT 0479 – 07 – 2204

Links:

Bailii

Employment

Updated: 14 July 2022; Ref: scu.267039

The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of illegality.
Held: These were not cases in which false representations had been made. That was sufficient to distinguish earlier cases. These were rather cases of wrong characterisation. The contracts were not unlawful and were enforceable.

Judges:

Lord Justice Pill, Lord Justice Maurice Kay and Lord Justice Lloyd

Citations:

[2008] EWCA Civ 393, Times 02-Jun-2008, [2008] IRLR 500, [2008] ICR 1423

Links:

Bailii

Statutes:

Employment Rights Act 1996 94(1)

Jurisdiction:

England and Wales

Citing:

Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Salvesen v Simons EAT 22-Oct-1993
Lord Coulsfield referred to the moral dimension applicable where an employee and employer sought to evade taxes by pretending tat the employee was in fact self-employed: ‘It is not necessarily inequitable that persons who seek to take advantage out . .
Cited – Daymond v Enterprise South Devon EAT 6-Jun-2007
Underhill J said: ‘where an employee has made a positive choice to operate arrangements which have the effect of depriving the Revenue of payment to which it is entitled, contracts giving effect to those arrangements will be unlawful notwithstanding . .
Cited – Miller v Karlinski CA 1945
It was too plain for argument that a contract of employment under which the employee was paid a salary and also ‘expenses’ that included the income tax payable on the salary was against public policy and therefore unenforceable. . .
Cited – Salvesen v Simons EAT 22-Oct-1993
Lord Coulsfield referred to the moral dimension applicable where an employee and employer sought to evade taxes by pretending tat the employee was in fact self-employed: ‘It is not necessarily inequitable that persons who seek to take advantage out . .
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 . .
Appeal from – Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd EAT 25-Jul-2007
EAT Unfair dismissal – Exclusions including worker/jurisdiction
These two appeals consider the circumstances in which contracts will be considered illegal so as to preclude an employee from taking claims . .

Cited by:

Cited – Connolly v Whitestone Solicitors EAT 24-Jun-2011
EAT JURISDICTIONAL POINTS – Fraud and illegality
Contract of employment – illegality in performance.
An employee who knows that his assertion to be self employed is unsustainable and yet claims to the . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.267043

EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Disposal of appeal including remission
Disability Discrimination – Reasonable adjustments
Unfair Dismissal – Constructive dismissal
Employment Tribunal reasons – duty to make reasonable adjustments – Constructive dismissal. Remission to same Employment Tribunal.
HHJ Peter Clark said: ‘ The proper approach for an Employment Tribunal to take when considering an alleged breach of s4A(1), read with s18B (and now bearing in mind the application of the ‘reverse burden of proof’; s17A(1C)) was considered and guidance given by HHJ Serota QC in Smiths Detection v Berriman (UKEAT/0712/04 and 0144/05/CK. 9 August 2005. Unreported); see para. 85. That approach was endorsed by HHJ McMullen QC in Ferguson v London Borough of Barnet [2006] All E.R. (D) 192; applied by a division on which I sat in Romec v Rudham (UKEAT/0069/07/DA. 13 July 2007. Unreported); see particularly paras. 39 – 40 and further affirmed by Judge Serota in Environment Agency v Rowan [2008] IRLR 20, paras. 26 – 27.
The Employment Tribunal should identify:
(1) the provision, criterion or practice (PCP) applied by or on behalf of an employer, or
(2) the physical features of premises occupied by the employer;
(3) the identity of non-disabled comparators (where appropriate) and
(4) the nature and extent of the substantial disadvantage suffered by the Claimant.
Whilst we agree with Miss Smith that in Berriman Judge Serota was not laying down an inflexible rule that in the circumstances there mentioned there must always be medical evidence supporting a conclusion that a proposed adjustment had a real prospect of preventing the disadvantage identified, it is nevertheless necessary for the Employment Tribunal to explain, on the evidence which it has heard and the facts found, why and how far the proposed adjustment would prevent the disadvantage. On this aspect we accept Miss Fatima’s submission that the Employment Tribunal, at paras. 50 and 51, has failed to answer the Romec question, which I there articulated at para. 39.’

Judges:

HHJ Peter Clark

Citations:

[2008] UKEAT 0522 – 07 – 2204

Links:

Bailii

Cited by:

Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.267038

EAT Practice and Procedure: Striking-out/dismissal
Following a long litigation history in which the Claimant, being unwell, was blameless, it was open to the Employment Tribunal to strike out the claims when it found there was no prospect at any time in the future that the Claimant would be ready to proceed. Having considered less draconic steps, it concluded that the litigation was aggravating the Claimant’s chronic fatigue syndrome and a fair trial was impossible, six years after her last working day, and more than three years after her dismissal.

Judges:

McMullen QC J

Citations:

[2008] UKEAT 0222 – 07 – 2201

Links:

Bailii

Employment

Updated: 14 July 2022; Ref: scu.267036

EAT Unfair dismissal – Constructive dismissal
Constructive dismissal. Conduct likely to destroy trust and confidence. Appeal allowed; finding of unfair constructive dismissal substituted for ET judgment dismissing claim.

Citations:

[2008] UKEAT 0581 – 07 – 2802

Links:

Bailii

Citing:

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

Employment

Updated: 14 July 2022; Ref: scu.266730

EAT Practice and Procedure
Unfair dismissal
Adequacy of reasons for claim in which the ET made findings of fact about credibility of a witness or different issues with no attempt to explain why it found the witness credible was one matter and not in the other matter and when ET made no reference at all to a witness whose account supplied the conclusion of the Claimant.

Judges:

Pugsley J

Citations:

[2007] UKEAT 0136 – 07 – 2809

Links:

Bailii

Employment

Updated: 14 July 2022; Ref: scu.266659

EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant claimed was the ‘last straw’ causing her to resign and claim constructive dismissal. The letter did not fall within any of the exceptions of the without prejudice rule.

Judges:

Birtles J

Citations:

[2007] UKEAT 0526 – 07 – 0702

Links:

Bailii

Citing:

Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Independent Research Services Ltd v Catterall EAT 26-Jun-1992
The claimant was a director of the employer’s company. He claimed that the relationship of trust and confidence with the company had been undermined so far as to be a repudiatory breach of the contract. Before his complaint of unfair dismissal, he . .
Cited – Hawick Jersey International Ltd v Caplan 11-Mar-1998
The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Fazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.266633

EAT Practice and Procedure:
Case Management
Bias, misconduct and procedural irregularity
Perversity
The Employment Tribunal prevented the Claimant’s counsel from asking questions concerning the fairness of the appeal procedure and asking an employee his view of the Respondent’s equal opportunities policy. No complaint has been made about the appeal procedures by the Claimant in his witness statement, in the skeleton argument or had been defined as an issue in the case. The EAT dismissed the appeal – the matter was within the discretion of the Employment Tribunal. Further the wider issue as to an individual employee’s perception of the equal opportunities would have entitled the Respondent to have adduced wide ranging evidence concerning its general equal opportunities policy which would have raised so many collateral issues that it would have been disproportionate to the issues raised in the particular case.

Judges:

Pugsley J

Citations:

[2007] UKEAT 0195 – 07 – 1608

Links:

Bailii

Citing:

Cited – Digby v East Cambridgeshire District Council EAT 30-Nov-2006
EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Admissibility of evidence
Total exclusion of evidence relating to final written warning inextricably linked with sanction of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.266638

Judges:

Peter Clarke J

Citations:

[2006] UKEAT 0344 – 05 – 0803, [2006] IRLR 508

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 14 July 2022; Ref: scu.266660

EAT Redundancy – Definition
Contract of Employment – Incorporation into contract
Claimant appellants challenged the Employment Tribunal’s decision that they were not made redundant. It was said that the Tribunal misdirected itself in various ways and reached a perverse conclusion when it determined that changes made to their work did not constitute a change in the kind of work so as to trigger a redundancy situation.
The EAT dismissed the appeal. There had been no misdirection and the conclusion was one which was open to the Tribunal.
The respondent society cross appealed against the finding that if the claimants had been redundant, they would have been entitled to enhanced contractual redundancy payments. The EAT dismissed this cross appeal also. Observations on the question of incorporating terms from the collective agreement into the contract of employment.

Judges:

Elias P J

Citations:

[2008] UKEAT 0220 – 07 – 1004, UKEAT/0220/07

Links:

Bailii, EAT

Employment

Updated: 14 July 2022; Ref: scu.266588

EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Bias
There is no practical utility in hearing interim appeals against pre-hearing orders and bias when the EAT has already rejected or stayed 10, and a full hearing at the Employment Tribunal is under way at day 25 of 35. Allegations of bias should be considered at the end of the hearing R v. Abdroikof [2007] 1 WLR 2679 HL. One appeal rejected under Rule 3(10), two others adjourned, all 7 others stayed until 42 days after the Judgment.

Judges:

McMullen QC J

Citations:

[2008] UKEAT 1382 – 07 – 1203

Links:

Bailii

Citing:

Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.266412

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 – 0702

Links:

Bailii

Employment

Updated: 14 July 2022; Ref: scu.266206

EAT UNFAIR DISMISSAL
Reinstatement/re-engagement
Compensation
The claimant was found to have been unfairly dismissed. He sought re-engagement. The Employment Tribunal refused an order of re-engagement and assessed compensation on the assumption that once the claimant had obtained another job that set the limit to the loss flowing from the dismissal. In fact he was dismissed at the end of the probationary period.
In refusing to order re-engagement the Tribunal took account of the fact that an offer had been made in without prejudice negotiations. The claimant contended that this should have been ignored, and that in any event any compensation should have included the losses flowing from the second dismissal.
The EAT agreed that save for the possibility that the without prejudice protection had been waived, the fact that the offer had been made should not have been disclosed. The matter was remitted to a fresh tribunal to consider that question.
The EAT upheld the appeal on compensation and held that in the circumstances of this case, the Tribunal could not properly limit compensation to the date of obtaining the new employment. The losses incurred after the loss of that job were also in principle recoverable.

Citations:

[2008] UKEAT 0473 – 07 – 0603

Links:

Bailii

Employment

Updated: 14 July 2022; Ref: scu.266208

Application by B to reinstate an appeal against a decision of the EAT.

Citations:

[2001] EWCA Civ 2064

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.218590

In a case of a refusal to accept a change in contractual terms case the tribunal has to weigh the business reasons for imposing the changes against the advantage and disadvantage of them for the employees.

Judges:

Burton P

Citations:

[1994] UKEAT 786 – 93 – 1301, [1994] IRLR 386

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Cited – Garside and Laycock Ltd v Booth EAT 27-May-2011
garside_bootghEAT11
UNFAIR DISMISAL – Reason for dismissal including substantial other reason
Employment Tribunal considered reasonableness/fairness of employer’s decision to dismiss for ‘some other substantial reason’ by reference to principles of law derived . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.209624

Citations:

[2002] EWCA Civ 730

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.217132

Citations:

[2003] EWCA Civ 1237

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.186256

Citations:

[1994] UKEAT 465 – 92 – 1706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.210024

Unfair Dismissal : Implied Term : Variation : Construction of Term : Disability Discrimination
1. This appeal raises the question whether it is fair and/or a proportionate means of achieving a legitimate aim for an employer to dismiss an employee by reason of permanent incapability at a time when an entitlement to long-term disability benefits (whether or not underpinned by an insurance policy) has accrued or is accruing. The Employment Tribunal held that it was both fair and proportionate to do so, having rejected the Claimant’s case that there was an implied term in his contract of employment restricting his employer’s power to dismiss in those circumstances.
2. In particular, it held:
(i) the Respondent was contractually obliged to pay the Claimant long-term disability benefits while he remained employed;
(ii) there was no implied term in his contract preventing the Respondent from dismissing him for incapability while he was entitled to receive such benefits;
(iii) the continued employment of the Claimant would have caused the Respondent operational difficulties;
(iv) the Respondent acted reasonably in dismissing the Claimant for incapacity so that his dismissal was fair;
(v) the Claimant’s dismissal was a proportionate means of achieving a legitimate aim so that there was no unlawful disability discrimination under s.15 Equality Act 2010.
3. The Claimant appealed those conclusions, contending (among other things) that the Employment Tribunal misconstrued the contract of employment by finding that no term was to be implied. The Employment Appeal Tribunal allowed the appeal. It held:
(i) On a proper construction of the contract, it is contrary to the functioning of the long-term disability plan, and to its purpose, to permit the Respondent to exercise the contractual power to dismiss so as to deny the Claimant the very benefits which the plan envisages will be paid. A term can be implied whether on the officious bystander or the business efficacy tests of implied contractual incorporation that ‘once the employee has become entitled to payment of disability income due under the long-term disability plan, the employer will not dismiss him on the grounds of his continuing incapacity to work.’ That term is capable of clear expression, reasonable in the particular circumstances and operates to limit (rather than contradict) the express contractual right to terminate on notice by preventing the exercise of that right in circumstances where it would frustrate altogether the entitlement to long term disability benefits expressly provided for by the contract.
(ii) Dismissal in breach of contract is not necessarily unfair but the contractual position is relevant as part of the circumstances against which the reasonableness of the Respondent’s actions fall to be judged. An implied term that there will be no dismissal for incapacity in the circumstances identified falls at the ‘very relevant indeed’ end of the spectrum of relevance. The Tribunal’s conclusion that there was no such implied term means that both the conclusion that the Claimant’s dismissal was fair and that it was a proportionate means of achieving a legitimate aim cannot stand, as the Respondent conceded. These conclusions are set aside and the question of fair/unfair dismissal and whether it was justified will have to be remitted.
(iii) The Employment Tribunal concluded that the Respondent would have dismissed in any event for the same reasons. The mere fact that the dismissal was not to avoid making payments does not entail that the Respondent would have dismissed in any event had it correctly appreciated its contractual obligations. Although this question involved a degree of speculation or prediction about what would have occurred in the counterfactual scenario posited, it was for the Respondent to adduce any relevant evidence relied on as to what it would have done (in terms of dismissal) if it thought the contract obliged it to continue making long-term disability benefit payments while the Claimant was employed. It adduced no such evidence and the Tribunal’s finding was accordingly unsupported by any evidence and must be set aside.

Citations:

[2018] UKEAT 0087 – 18 – 2311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630733

Practice and Procedure – Bias, Misconduct and Procedural Irregularity – DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant was a Latvian national with a limited command of English. At the trial of her claims of unfair dismissal and disability discrimination she acted in person, assisted by an interpreter. The Employment Tribunal (‘ET’) dismissed her claims. The Claimant appealed on various grounds including two relating to the discrimination claim under section 20 of the Equality Act 2010 and a complaint that she had been given insufficient time to cross-examine the main witness for the Respondent.
At the Rule 3(10) Hearing, the Judge allowed the two section 20 grounds (as contained in an Amended Notice of Appeal signed by counsel then acting for the Claimant) to proceed to a Full Hearing and stayed the appeal on the cross-examination ground (not contained in the Amended Notice of Appeal) pending the ET’s response to the allegation. The ET provided its response, to which the Claimant replied.
At the Full Hearing, the EAT resolved the ambiguity in the Rule 3(10) Order in favour of the Claimant; lifted the stay on the ground relating to the cross-examination and treated it as if contained in the Amended Notice of Appeal. The ET’s account of the time afforded for cross-examination was preferred. The EAT was satisfied that there was no basis to challenge the case management decision as to the allocation of time.
As to the section 20 appeal, there was no basis to challenge the ET’s conclusion of fact: Noor v Foreign and Commonwealth Office [2011] ICR 695, General Dynamics Information Technology Ltd v Carranza [2015] ICR 169, Code of Practice Employment [2011] Chapter 6, considered.

Citations:

[2018] UKEAT 0078 – 18 – 2806

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630716

Unfair Dismissal – Constructive Dismissal – Disability Related Discrimination
An Employment Tribunal (‘ET’) was entitled to find, on the facts before it, that a letter written by the Claimant referring to ‘constructive dismissal’ and to an ET1 having been lodged demonstrated an intention on the Claimant’s part to resign, such that no subsequent act by the Respondent could amount to a ‘last straw’.
It was also entitled to find that a final written warning issued to the Claimant was a proportionate means of achieving a legitimate aim, in circumstances where the Claimant had been absent for lengthy periods over a protracted period.

Citations:

[2018] UKEAT 0012 – 18 – 0609

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630726

Wrongful Dismissal
Unfair Dismiss
t was for the Employment Tribunal to decide as a matter of law, whether the misconduct allegations against the Claimant were properly to be characterised as ‘professional misconduct’ obliging the Trust to have an independent, medically qualified person on the disciplinary panel in accordance with the Department of Health’s document, Maintaining High Professional Standards in the Modern NHS (MHPS) and the Trust’s own internal policy. If the Tribunal erred in law in reaching its decision on that issue, the Employment Appeal Tribunal could interfere.
Considering the substance of each of the allegations against the Claimant, the Tribunal was as a matter of fact and law entitled and right to find that they had nothing to do with the exercise of the Claimant’s ‘clinical or professional conduct or competence’. The Tribunal did not err in law in reaching those conclusions.
Nor did the allegations raise issues of capability. It was no part of either sides’ case that they did.
That being so, there was no breach of contract because the requirement to appoint an independent medical expert under MHPS was not engaged. Further, as no capability issue arose, there was no need to have an assessment of capability carried out by the National Clinical Assessment Service (NCAS).

Citations:

[2018] UKEAT 0015 – 18 – 0811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630735

Citations:

[2018] UKEAT 0079 – 18 – 2808

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Lema v DHL Supply Chain Ltd EAT 21-Mar-2018
Entitlement to oral hearing . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.630721

TRANSFER OF UNDERTAKINGS – Acquired rights directive
TRANSFER OF UNDERTAKINGS – Transfer
The Employment Tribunal decided that there was no relevant transfer for the purposes of the TUPE Regulations because the case fell within regulation 3(5). The Tribunal rightly rejected arguments that: (a) the transferred public health team’s activity of purchasing or commissioning health services was in itself an economic activity for the purposes of regulation 3(2); and (b) regulation 3(5), if otherwise applicable, did not apply because the transferring entity, a Primary Care Trust, carried on some economic activities.
However, the Employment Tribunal found that all, or almost all, of the work done by the public health team could be, and in fact was, offered by non-state actors operating in the same market. That was a strong indication that the public health team was carrying on an economic activity. Having made that finding, the Employment Tribunal either failed to give adequate reasons for its conclusion or was wrong, if and insofar it concluded that it was a sufficient reason for reaching
that conclusion that the public health team did not bid for contracts and was not trying to obtain business.
The Employment Tribunal was also wrong to conclude that, if there was a relevant transfer, the Claimants’ employment was not transferred pursuant to regulation 4(1) of the TUPE Regulations and they were not entitled to rely on regulation 4(4).

Citations:

[2018] UKEAT 0004 – 18 – 2308

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630720

Entitlement to oral hearing

Citations:

[2018] UKEAT 0315 – 17 – 2103

Links:

Bailii

Statutes:

Employment Appeal Tribunal Rules 1993 3(10)

Jurisdiction:

England and Wales

Cited by:

See Also – Lema v DHL Supply Chain Ltd EAT 28-Aug-2018
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 July 2022; Ref: scu.630715

Disability Related Discrimination – Race Discrimination
On the facts as found, an Employment Tribunal did not err in law in holding that the Respondent did not discriminate against the Claimant on grounds of disability and race by reason of its failure to conduct appraisals.

Citations:

[2018] UKEAT 0095 – 18 – 2108

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630724

Unfair dismissal – reasonableness of dismissal – section 98(4) Employment Rights Act 1996
The Claimant was a teacher employed by the Respondent who had an unblemished career until it was alleged that he had acted inappropriately by grabbing a pupil (pupil A), pushing him against a wall and putting his fingers to the pupil’s throat. The Respondent’s findings in respect of this matter had ultimately led it to dismiss the Claimant. The ET, [2017] UKET 2404445/2016, found that dismissal had been fair. The Claimant appealed, arguing that given the career-changing impact of the allegation the Respondent’s investigation was inadequate. In particular, he contended that the ET erred in its approach to the Respondent’s failure to disclose (to him and to the disciplinary panel) specific evidence from potential witnesses (two other pupils and one member of the administrative staff), who had each said they had seen nothing. It was the Claimant’s case that, given the location of the incident and the conduct alleged, evidence that these witnesses had seen nothing untoward was itself highly relevant and it was irrelevant that he had not himself raised the point during the internal process.
Held: dismissing the appeal
The ET had correctly directed itself as to the higher standard of investigation and process that might be expected given the potentially career-changing nature of the allegation against the Claimant. As for the specific points taken on appeal, there was nothing to suggest that the ET had misunderstood the location of the incident in question (relevant to the question whether particular witnesses might have been expected to have seen something untoward). The Respondent had, however, been concerned with a very particular interaction between the Claimant and pupil A and the ET was entitled to consider the reasonableness of its decisions in this context. Doing so, it had permissibly concluded that the Respondent had acted within the range of reasonable responses in taking no further action in respect of the evidence of witnesses who would not have had a direct view of the incident and who had said they had seen nothing. As for the fact that the Claimant had not himself taken the point during the internal process, whilst this was not an irrelevant consideration the ET did not lose sight of the fact that it was the Respondent’s obligation to ensure that there was a fair investigation.

Citations:

[2018] UKEAT 0048 – 18 – 1106

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630717

Redundancy – Trial Period – Not Landmark
Despite having had the matter remitted from the Employment Tribunal on two previous
occasions, an Employment Tribunal failed to follow the guidance given, and failed to identify the correct issue which it had to determine given a conceded failure by the Respondent to offer the Claimant a trial period in relation to an offer of a new position following redundancy. That issue was the fairness of the dismissal.
The Employment Tribunal failed to have regard to undisputed evidence as to the benefit to the Claimant of such a trial period, and confused the issue before them with the outcome of any trial period, which was an entirely separate issue.
The matter was remitted to a fresh Employment Tribunal.

Citations:

[2018] UKEAT 0089 – 18 – 2109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630727

Harassment – Disability Related Discrimination
VICTIMISATION DISCRIMINATION – Protected disclosure
The Employment Tribunal were best placed to make findings of fact about the context and office culture which it did, and which was necessary in order to understand the Claimant’s allegations of harassment and victimisation as well as direct discrimination and section 15 disability discrimination. Having done so, the Tribunal was fully entitled to conclude that the comments complained of did not amount to harassment as defined in section 26 Equality Act 2010. In other contexts and circumstances they might have done, but harassment claims are highly fact sensitive and context specific. The other complaints also failed on the facts which were for the Tribunal to make and decide.

Citations:

[2018] UKEAT 0128 – 18 – 1508

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.630719

The Claimants were electricians who had originally been employed by Birmingham City Council (‘BCC’); their employment had been subject to a number of TUPE transfers, ultimately to the Respondent. Within BCC, electricians had enjoyed payments of Electricians Travel Time Allowance (‘ETTA’), albeit that the reasons for this allowance had ceased to exist over the years. Although managers within the transferor company had questioned payment of ETTA, it was an allowance that had continued to be paid until the transfer to the Respondent in 2008. The Respondent first questioned whether there was any contractual entitlement to ETTA. After litigation before the ET and EAT, it was determined that there was (see Salt and Others v Mears Ltd). Faced with that determination, the Respondent gave notice that it was bringing this contractual entitlement to an end. The Claimants objected, arguing that the reason for this variation to their contractual terms was a relevant transfer for TUPE purposes and therefore void (see Regulation 4(4) TUPE). The ET disagreed, finding that the contractual variation was made because ETTA was an outdated and unjustified payment. It further found that, in any event, the Claimants had not met the conditions for payment of ETTA, having not submitted claims – a condition, the Claimants noted, that had not been raised by the Respondent in the Salt litigation. The Claimants appealed against both these findings by the ET.
Held: dismissing the appeal
The ET had found that the variation of the Claimants’ terms of employment was due to the Respondent’s conclusion that ETTA was an outdated and unjustified allowance; in the circumstances, it was entitled to find that this was a reason unrelated to the earlier transfer to the Respondent. The Salt litigation had not itself been linked to the transfer but, in any event, that was simply the context in which the Respondent made its decision, it was not the reason for it. As for the ET’s finding that the Claimants had not, in any event, met the relevant conditions for claiming an entitlement to ETTA, there had been no finding on this issue in the Salt litigation and the Respondent had not been estopped from taking the point. This had, moreover, been expressly raised as an issue in the current proceedings and the Claimants had raised no objection; it was not open to them to take the point on appeal.

Citations:

[2018] UKEAT 0064 – 17 – 0502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 July 2022; Ref: scu.625430

Whether either the Employment Tribunal or the Employment Appeal Tribunal improperly substituted their own view of the facts relating to the conduct of the appellant for that of the investigating and dismissing officer of the respondent, and whether the decision of the DWP to dismiss Mrs Graham for her misconduct was within the broad range of reasonable responses available to this employer, given the particular misconduct found of this employee and all the circumstances.

Judges:

Lord Justice Aikens

Citations:

[2012] EWCA Civ 903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.461950

EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: reasonably practicable
Appeal against the decision of an Employment Judge that (a) it was not reasonably practicable for the Appellant to bring her claim for unfair dismissal within the 3 month time limit where (i) she had no knowledge of the time limit and (ii) had taken informal advice from a solicitor who she had not retained to act for her; (b) it was perverse on the facts for the Employment Judge to conclude that a further delay of 2.5 months was reasonable.

Judges:

Birtles J

Citations:

[2011] UKEAT 0465 – 10 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.430308

EAT JURISDICTIONAL POINTS – Continuity of employment
The Employment Judge correctly analysed the circumstances leading to the termination of the Claimant’s first contract and the start of the second with an associated employer and found a gap of one week so destroying continuity under Employment Rights Act 1996 s 212(1). But there was no consideration of s 212(3) viz whether the gap was pursuant to an arrangement. Appeal allowed. Limited remission to the same Employment Judge.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0603 – 10 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.432791

EAT VICTIMISATION DISCRIMINATION
Claimant sought to bring victimisation proceedings based on statements in witness statements served in prior discrimination claim (subsequently dismissed on jurisdictional grounds) – Judge struck claim out on the basis that the statements attracted judicial proceedings immunity (Health v Commissioner of Metropolitan Police) – Appeal on basis that the immunity does not apply to victimisation claims
Appeal dismissed – Ratio in Heath applies to all kinds of discrimination by way of victimisation – In so far as EAT suggested otherwise in Zaiwalla, it was wrong – No inconsistency with the jurisdiction to award aggravated damages in respect of conduct in the course of proceedings.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0490 – 10 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.431876

EAT PRACTICE AND PROCEDURE: Perversity
Tribunal’s judgment set aside where they had accepted the claimant’s evidence on an essential matter despite her solicitor’s failure to cross-examine the relevant employers’ witness on it, despite other conflicts in her evidence and despite there being matters which called her reliability into question as well as her credibility. Not, though, an error of law for the tribunal to refrain from recalling the respondents’ witness of its own motion. Remit to a fresh tribunal.

Citations:

[2009] UKEAT 0057 – 08 – 0303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.341209

EAT Unfair dismissal – Mitigation of loss – Polkey deduction
Employee challenged the assessment of compensation. He submitted that the Tribunal had erred in its assessment of the Polkey reduction and its approach to mitigation. Moreover, its reasons had been deficient.
EAT held that the Tribunal had not misdirected themselves in law, nor reached a perverse conclusion. The reasons were clear and adequate. Accordingly the appeal was dismissed.

Judges:

Elias P J

Citations:

[2008] UKEAT 0605 – 07 – 2602

Links:

Bailii

Employment

Updated: 13 July 2022; Ref: scu.266075

Citations:

[2000] EAT 527 – 99 – 1212

Links:

Bailii

Employment

Updated: 13 July 2022; Ref: scu.265902

Citations:

[2000] UKEAT 389 – 00 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.265896

Citations:

[2000] UKEAT 639 – 00 – 1312

Links:

Bailii

Employment

Updated: 13 July 2022; Ref: scu.265861