Category: Employment

Sullivan-Davies v Space Enterprise Ltd: EAT 4 Feb 2000

EAT Unfair Dismissal – Contributory fault.

Judges:

His Honour Judge H Wilson

Citations:

EAT/560/99, [2000] UKEAT 560 – 99 – 0402

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sullivan-Davies v Space Enterprise Ltd EAT 26-Jul-1999
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.264843

Unwin v Sackville School and Another: EAT 1 Feb 2000

The question is whether, a full Employment Tribunal having been empanelled to hear and determine the appellant, Mrs Unwin’s complaint of victimisation contrary to the Sex Discrimination Act 1975, the Chairman of that Employment Tribunal, Mr Rich, was entitled to strike out the complaint under Rule 13(2)(e) of the Employment Tribunal Rules of Procedure and thereafter to make a consequent costs order against the appellant, sitting alone.

Judges:

Peter Clarke HHJ

Citations:

[2000] UKEAT 1068 – 98 – 0102

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Citing:

See Also – Unwin v Sackville School and Another EAT 30-Jul-1997
. .
See Also – Unwin v Sackville School and Another EAT 1-Mar-1998
. .
See Also – Unwin v Sackville School and Another EAT 15-Dec-1999
EAT Procedural Issues – Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.264845

Wheeler and Another v Durham County Council: EAT 17 Feb 2000

Citations:

[2000] UKEAT 839 – 99 – 1702

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Wheeler and Another v Durham County Council EAT 30-Nov-2000
. .
At EAT (1) – Wheeler and Another v Durham County Council CA 23-May-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.264847

Deman v Association of University Teachers: EAT 12 Jan 2000

Citations:

[2000] UKEAT 746 – 99 – 1201

Links:

Bailii

Cited by:

Cited – Deman v Association of University Teachers and Another EAT 6-Jun-2001
Appeal against order of tribunal for adjournment to allow vexatious litigant application against the applicant. . .
Cited – Deman v Association of University Teachers and others EAT 5-Feb-2002
EAT Race Discrimination – Inferring Discrimination
EAT Race Discrimination – Inferring discrimination. . .
See also – Deman v Association of University Teachers CA 14-Mar-2003
The appellant challenged dismissal of his claim for race discrimination. In the midst of a dispute with the employer University. He was dissatisfied with the support given by his union. He was refused legal assistance save through a firm of lawyers . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.264688

South London and Maudsley NHS Trust v Dathi: EAT 18 Feb 2008

EAT Practice and Procedure
Striking-out/dismissal
Admissibility of evidence
An employment tribunal has no jurisdiction to hear a claim of discrimination and victimisation founded upon a letter from the Respondent’s advisers to the Claimant’s advisers refusing to disclose a document said to be relevant. Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity. So is a response directed to the Tribunal to the Claimant’s application for costs. Both letters came into existence for the purpose of the proceedings and in the second case was ‘akin to a pleading’ and thus both attracted absolute immunity. The Claimant’s claims based on those two letters were struck out.

Judges:

McMullen QC J

Citations:

[2008] UKEAT 0422 – 07 – 1802, [2008] IRLR 350

Links:

Bailii

Employment

Updated: 13 July 2022; Ref: scu.264644

Ashraf v Birkett: EAT 14 Jan 2000

Citations:

[2000] UKEAT 772 – 99 – 1401

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Ashraf v Francis W Birkett and Sons Ltd EAT 23-May-2000
. .
See Also – Ashraf v Francis W Birkett and Sons Ltd EAT 20-Jul-2001
The employee had been selected for redundancy. He claimed both race and disability discrimination. He appealed a rejection of race discrimination claim. He said that the Meek case required the decision to deal with any significant of conflict of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.264711

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 of the tax system, misguidedly or otherwise, should not be entitled to be treated as if they were employed under a normal contract of employment.’

Judges:

Lord Coulsfield

Citations:

[1993] UKEAT 451 – 93 – 2210, [1994] IRLR 52, [1994] ICR 409

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
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 . .
Cited – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.264561

Look Ahead Housing and Care Ltd v Bola Akinde: EAT 31 Jan 2008

EAT Practice and Procedure: Perversity
Race discrimination: Inferring discrimination / Comparison
The Respondent was dismissed from her post as a night hostel worker after abusing a resident. She claimed, inter alia, race discrimination. The Tribunal upheld the claim.
Held: the decision was not Meek compliant and was perverse.

Citations:

[2008] UKEAT 0130 – 07 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.264281

Onwuka v Spherion Technology (UK) Ltd and others: EAT 6 Feb 2008

EAT Transfer of Undertakings: Transfer
The Appellant was employed by R1. He worked for a particular consultancy in R1’s business. That part of R1’s business was sold. The only issue remaining in the EAT was whether he remained working for that part of R1’s business at the time of the sale so as to be automatically transferred to the purchaser’s employment, or whether he had by then ceased to work for that part of the business and so was not transferred.
Held: the ET was entitled to hold that he had ceased to work in the part of the business transferred and so remained employed by R1.

Judges:

Reid QC J

Citations:

[2008] UKEAT 0523 – 06 – 0602

Links:

Bailii

Citing:

See Also – Onwuka v Spherion Technology UK Ltd and others EAT 26-Nov-2004
EAT The two appeals raised questions as to (i) whether the Chairman of an employment tribunal had misdirected herself in relation to an application to amend an originating application, and (ii) as to the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.264288

Schultz-Hoff v Deutsche Rentenversicherung Bund (Social Policy): ECJ 24 Jan 2008

ECJ Directive 2003/88/EC working time arrangements Article 7 Right to paid annual leave minimal right of the compensatory leave not taken Fundamental social rights in Community law Loss of entitlement to the expiration of the time prescribed by law

Citations:

C-350/06, [2008] EUECJ C-350/06 – O

Links:

Bailii

Statutes:

Directive 2003/88/EC

Cited by:

Opinion – Stringer and Others v Her Majesty’s Revenue and Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund ECJ 20-Jan-2009
(Grand Chamber) Several employees claimed that having been absent from work sick, they were entitled to carry forward their unused holiday entitlements, or if a former worker, to pay in lieu under the Working Time directive.
Held: The workers . .
See Also – Stringer and Others v Her Majesty’s Revenue and Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund ECJ 20-Jan-2009
(Grand Chamber) Several employees claimed that having been absent from work sick, they were entitled to carry forward their unused holiday entitlements, or if a former worker, to pay in lieu under the Working Time directive.
Held: The workers . .
Cited – Revenue and Customs v Stringer, Ainsworth and Others HL 10-Jun-2009
In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 13 July 2022; Ref: scu.264004

Lake House Estate Ltd v Martin: EAT 20 Dec 2007

EAT Practice and Procedure:
Bias, misconduct and procedural irregularity
Contract of Employment:
Written particulars
Unfair Dismissal:
Automatically unfair reasons
Maternity Rights and Parental Leave:
Sex discrimination
Appearance of bias in Employment Tribunal Judgment and Reasons. Withdrawal of claims later purportedly adjudicated on by Employment Tribunal. Sex discrimination on grounds of maternity leave. Written Particulars of Terms and Conditions of employment.

Judges:

Peter Clark J

Citations:

[2007] UKEAT 0312 – 07 – 2012

Links:

Bailii

Employment

Updated: 13 July 2022; Ref: scu.263992

Royal Mail Letters and others v Muhammad: EAT 20 Dec 2007

EAT Practice and Procedure
Whether Claimant complied with requirements of Section 32 of the Employment Act 2002 and paragraph 6, Schedule 2 of the Employment Act (Dispute Regulations) 2004.

Judges:

Pugsley J

Citations:

[2007] UKEAT 0392 – 07 – 2012

Links:

Bailii

Statutes:

Employment Act 2002 32, Employment Act (Dispute Resolution) Regulations 2004

Citing:

Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – Odoemelam v Whittington Hospital NHS Trust EAT 6-Feb-2007
EAT Statutory grievance procedures
Need for grievance to identify that complaint is one of racial discrimination – application to claims against employees as well as to claims against their employers. . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Cited – Martin v Class Security Installations Ltd EAT 16-Mar-2006
EAT Unfair Dismissal
Chairman held that no statutory grievance of constructive unfair dismissal had been raised. Was he correct on the facts?
There is compliance ‘if the employers, on a fair reading of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.263994

Centrewest London Buses Ltd v Ukachukwu: EAT 20 Dec 2007

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
RACE DISCRIMINATION
Direct
The comparative exercise in race discrimination and victimisation claims. Application of the CRE Code of Practice. Applying the reverse burden of proof.
No error in ET approach to capability unfair dismissal.

Citations:

[2007] UKEAT 0318 – 07 – 2012

Links:

Bailii

Cited by:

See Also – Centrewest London Buses Ltd v Ukachukwu CA 10-Apr-2008
Renewed application for permission to appeal against decision of EAT allowing appeal against finding of race discrimination. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.263988

Hastingsbury School v Clarke: EAT 17 Dec 2007

EAT Unfair dismissal – Reasonableness of dismissal / Compensation
The employee, a school teacher, was subjected to a disciplinary procedure for alleged acts of misconduct of an inappropriate sexual nature with respect to his pupils. There was evidence that he might be suffering from some illness which could have explained his conduct. The employers resolved to refer the matter to Occupational Health to investigate the medical position but in fact dismissed him before that was done. The Tribunal found that the dismissal was unfair but that it could not speculate as to what would have happened had the referral been made. The EAT dismissed an appeal against the finding on liability but concluded that the Tribunal ought to have considered what would have happened had the referral been made. In the light of the psychiatric evidence before the Tribunal the only possible conclusion was that the dismissal would have occurred in any event, even had the referral been made. The EAT held that in the exceptional circumstances of this case, and bearing in mind the overriding objective, it would itself determine the compensation. It did so, on the assumption that it would have taken some 10 weeks to comply with the referral procedure before the dismissal would inevitably have occurred.

Citations:

[2007] UKEAT 0373 – 07 – 1712

Links:

Bailii

Citing:

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

Employment

Updated: 13 July 2022; Ref: scu.263990

Thomas v Devon County Council: EAT 7 Dec 2007

Practice and Procedure – Striking-out/dismissal
A issued proceedings in the ET before she resigned or (as the case may be) was constructively dismissed. She withdrew those proceedings which were then dismissed under rule 25(4). She issued fresh proceedings alleging constructive unfair dismissal relying largely – but not entirely – on matters raised in her first proceedings. The ET held the second proceedings should be dismissed on the basis of issue estoppel. The basis of her first claim was never made clear but it certainly was no unfairly dismissed.
Held: the rule in Henderson v Henderson was a broad equitable rule to be applied with a view to fairness and A was not estopped from pursuing her claim for unfair dismissal.

Judges:

Reid QC HHJ

Citations:

[2007] UKEAT 0513 – 07 – 0712

Links:

Bailii

Employment

Updated: 13 July 2022; Ref: scu.263995

Bleuse v MBT Transport Ltd and Another: EAT 21 Dec 2007

EAT Working Time Regulations
Unfair Dismissal – Exclusions including worker/jurisdiction
The claimant, a lorry driver, worked mainly in Austria and Germany, but had a contract of employment with a company registered in England. The contract identified English law as the proper law and sought to confer exclusive jurisdiction on the English courts. The claimant lodged a number of claims in the Employment Tribunal for constructive unfair dismissal, failure to pay holiday pay, unlawful deductions from wages and breach of contract. At a preliminary hearing the issue arose whether the territorial scope of the statutory provisions extended to the claimant. The Tribunal concluded that they did not, principally by applying the approach adopted by the House of Lords in Lawson v Serco Ltd [2006] ICR 250.
In a separate and later decision another Chairman considered whether the claim for breach of contract was in time, and held that it was not. It is accepted that even if the Chairman at the earlier hearing had accepted jurisdiction, this ruling would have also applied to the statutory claims and they could not have been pursued in any event.
Both rulings are challenged on appeal. The EAT held that the Tribunal had erred in its approach to the question of extending time and the issue was remitted to a fresh Tribunal. As to the territorial scope issue, the EAT held that the Tribunal had been right to reject the claims for unfair dismissal and unlawful deduction from wages, and that the principles enunciated in the Serco case were properly applied. However, the EAT held that the claimant could, subject to succeeding on the time point, pursue the claim for holiday pay. There was a directly effective right derived from the European Directive and this could be given effect by construing the Working Time Regulations in a manner which was compatible with the terms of the Directive. Even if the statutory provision would otherwise have been limited to those who had a base in the UK, the effect of EU law was that it had to be extended so as to apply also to those who had rights conferred upon them by EU law.

Judges:

Elias P

Citations:

[2008] IRLR 264, [2008] ICR 488, [2007] UKEAT 0339 – 07 – 2112

Links:

Bailii

Citing:

Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .

Cited by:

Cited – Duncombe and others v Department for Education and Skills EAT 24-Apr-2008
Duncombe_desEAT2008
EAT Jurisdictional Points – Working outside the jurisdiction
Fixed Term Regulations
Extra-territorial jurisdiction. Teachers working abroad. Breach of contract claim within ET jurisdiction. Whether . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families CA 14-Dec-2009
The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.263987

Highland Council v TGWU Unison First and others: EAT 18 Dec 2007

EAT Equal Pay Act – Out of time
Equal pay claims and statutory grievance procedures. Whether claimants prevented by section 32(2) of the Employment Act 2002 from presenting complaints specifying different comparators from those (if any) specified in grievances. EAT held that Tribunals required to carry out a qualitative assessment to see if comparators in ETI were materially different from comparators in grievances.
Lady Smith referred to the statutory grievance procedures: ‘for the time being they remain in place as a matter of law, with equal pay claims having been brought expressly within their ambit, and they have to be observed.’

Judges:

Lady Smith

Citations:

[2008[ IRLR 272, [2007] UKEAT 0020 – 07 – 1812

Links:

Bailii

Statutes:

Equal Pay Act 1970

Citing:

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

Cited by:

See Also – The Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.263991

Velasco Navarro (Social Policy): ECJ 17 Jan 2008

ECJ Social policy Protection of workers in the event of insolvency of their employer Directive 80/987/EEC amended by Directive 2002/74/EC Direct effect Compensation for unfair dismissal agreed under a judicial conciliation settlement Payment guaranteed by the guarantee institution Payment conditional upon the adoption of a judicial decision.

Judges:

K. Lenaerts, P

Citations:

C-246/06, [2008] EUECJ C-246/06

Links:

Bailii

European, Employment, Insolvency

Updated: 13 July 2022; Ref: scu.263964

British Gas Trading Limited v Scott: EAT 23 Jan 2008

EAT Disability Discrimination – disability
The Claimant suffered a dislocation of her left knee cap on two occasions. She was a person who had an increased risk of dislocation of the patella. Between the first and second dislocations she made a complete recovery.
Held: the Employment Tribunal was entitled to find the impairment continued though there were no adverse effects between the two dislocations and to hold she was disabled within the meaning of the Disability Discrimination Act 1995 (DDA).

Judges:

Reid QC J

Citations:

[2008] UKEAT 0322 – 07 – 2301

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.263972

Fosh v Cardiff University: EAT 23 Jan 2008

The professor had sought time off to represent another lecturer claiming race discrimination against the University. The University said that her behaviour created a conflict of interest with the University. She continued and herself claimed victimisation. After the case failed, she was herself suspended, and her email account searched from which further disciplinary charges were laid. The Tribunal had found her subsequent dismissal procedurally fair, and that the University’s objection of conflict had been proper. The Tribunal had correctly applied the law. The appeal failed.

Judges:

Peter Clark J

Citations:

[2008] UKEAT 0412 – 07 – 2301

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Race Relations Act 1976 2 54A, Employment Rights Act 1996, Regulation of Investigating Powers Act 2000

Citing:

Cited – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Cited – Aziz v Trinity Street Taxis Ltd CA 26-Feb-1988
An Asian member of the respondent association of taxi cab operators secretly recorded conversations with other members to gather evidence for a claim under the Act. He was expelled from the association for this conduct. He alleged race . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Oyarce v Cheshire County Council EAT 13-Jun-2007
EAT Victimisation
Burden of proof
Appeal – Perversity challenge on finding important for remedy.
Cross-Appeal – Did ET misdirect itself on burden of proof on victimisation claim.
As a . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Copland v The United Kingdom ECHR 3-Apr-2007
The applicant had been an employee. In the course of a dispute with her employer, she discovered that the principal had been collecting information about her telephone calls, emails and internet usage.
Held: The collection of such material . .
Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .

Cited by:

Cited – Fosh v Cardiff University CA 3-Feb-2009
Oral application for permission to appeal. Leave Refused. No error of law was identified. The judge refusing leave had warned the claimant as to the possibility of a costs order if she persisted. . .
At EAT – Fosh v Cardiff University CA 29-Sep-2009
The University sought the costs of having attended at an oral renewal of application for leave to appeal.
Held: The professor had gone ahead despite a warning about it not being justified. She had prepared extensive grounds for the appeal. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights

Updated: 13 July 2022; Ref: scu.263973

Crystal Palace FC (2000) Ltd v Dowie: QBD 14 Jun 2007

The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club when this was not true.
Held: The tort of deceit is committed where ‘a defendant makes a false representation, knowing it to be untrue, and intends that the claimant should act in reliance on it, then in so far as the claimant does act in reliance on it, and suffers loss, the defendant is liable for that loss.’ Some false representations had been made by Mr Dowie, but the compromise agreement was not rescinded.

Judges:

Tugendhat J

Citations:

[2007] EWHC 1392 (QB), [2007] IRLR 682

Links:

Bailii

Statutes:

Misrepresentation Act 1967

Jurisdiction:

England and Wales

Citing:

Mentioned – Crystal Palace FC (2000) Ltd v Bruce 22-Nov-2001
. .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Cited – Occidental Worldwide Investment Corporation v Skibs A/S Avanti (The Siboen and Sibotre) 1976
The effect of a rescission of a compromise agreement settling the dispute may be to revive the original agreement. As to the liability of a principal for misrepresentations by his agent: ‘If one agent makes a fraudulent statement to another agent, . .
Cited – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
Cited – Spice Girls Limited v Aprilia World Service Bv CA 24-Jan-2002
When considering the statutory right to rescind for innocent misrepresentation, the representation should be interpreted to bear the meaning in which it would reasonably be understood by the claimant, the natural and ordinary meaning which would be . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.

Employment, Torts – Other

Updated: 13 July 2022; Ref: scu.253481

Storer v British Gas Plc: EAT 16 Oct 1998

The claimant appealed against rejection of his claim for unfair dismissal and similar, the decision being made that the applications were out of time. He also complained that the hearing had effectively heard been in private.
Held: No arguable point of law had been demonstrated and the appeal failed.

Judges:

Peter Clark HHJ

Citations:

[1998] UKEAT 153 – 98 – 1610

Links:

Bailii

Statutes:

Employment Rights Act 1996 164

Jurisdiction:

England and Wales

Cited by:

Appeal from – Storer v British Gas plc CA 25-Feb-2000
An industrial tribunal hearing conducted behind the locked doors of the chairman’s office was not held in public, even if, in fact, no member of the public was prevented from attending. The obligation to sit in public was fundamental, and the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.206834

Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd: 1991

A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s obligations.
Held: The new rule provided a minimum increase but no right for the trustees to grant unilateral increases above that minimum. It was not possible to imply a condition of reasonableness as to the exercise of the company’s discretion, but there was an obligation to act in good faith as in every contract of employment. There existed an implied obligation that the discretion should not be exercised so as to destroy or seriously damage the relationship of trust and confidence between the company and its employees and former employees. The power of the company to withhold consent to benefit increases must be exercised in good faith. ‘Pension scheme trusts are of quite a different nature to traditional trusts. The traditional trust is one under which the settlor, by way of bounty, transfers property to trustees to be administered for the beneficiaries as objects of his bounty. Normally, there is no legal relationship between the parties apart from the trust. The beneficiaries have given no consideration for what they receive. The settlor, as donor, can impose such limits on his bounty as he chooses, including imposing a requirement that the consent of himself or some other person shall be required to the exercise of the powers. As the Court of Appeal have pointed out in Mihlenstedt v. Barclays Bank International Ltd [1989] I.R.L.R. 522 a pension scheme is quite different. Pension benefits are part of the consideration which an employee receives in return for the rendering of his services. In many cases, including the present, membership of the pension scheme is a requirement of employment. In contributory schemes, such as this, the employee is himself bound to pay for his or her contributions. Beneficiaries of the scheme, the members, far from being volunteers have been given valuable consideration. The company employer is not conferring a bounty. In my judgment, the scheme is established against the background of such employment and falls to be interpreted against that background’
Sir Nicolas Browne-Wilkinson VC discussed the implied term of trust and confidence between employer and employee: ‘I will call this implied term ‘the implied obligation of good faith.’ In my judgment, that obligation of an employer applies as much to the exercise of his rights and powers under a pension scheme as they do to the other rights and powers of an employer. Say, in purported exercise of its right to give or withhold consent, the company were to say, capriciously, that it would consent to an increase in the pension benefits of members of union A but not of the members of union B. In my judgment, the members of union B would have a good claim in contract for breach of the implied obligation of good faith: see Mihlenstedt v Barclays Bank International Ltd [1989] IRLR 522′.

Judges:

Sir Nicolas Browne-Wilkinson VC

Citations:

[1991] ICR 524, [1991] 2 All ER 597, [1991] 1 WLR 589

Jurisdiction:

England and Wales

Citing:

Applied – Woods v W M Car Services (Peterborough) Ltd EAT 1981
An employer will be guilty of a breach which entitles an employee to resign and claim constructive dismissal if the employer behaves in such a way as to destroy the relationship of trust and confidence. An employer shall not ‘without reasonable and . .
Cited – Mihlenstedt v Barclays Bank International CA 1989
The company’s pension scheme provided that the trustees were to form an opinion as to the employee’s ability or otherwise to work. The plaintiff sought payment of an ill-health pension under the Bank Pension Scheme.
Held: A pension scheme . .

Cited by:

Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Cited – National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others HL 7-Jun-2001
The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – Transco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
Lists of cited by and citing cases may be incomplete.

Employment, Trusts, Company

Updated: 13 July 2022; Ref: scu.182111

Pitmans Trustees Limited, Whitehead, Bracey-Wright v The Telecommunications Group Plc: ChD 10 Feb 2004

Judges:

The Vice-Chancellor

Citations:

[2004] EWHC 181 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms 1972
The Secretary of State proposed to introduce new regulations for the training of agricultural workers. It sent a notice inviting representations from a body representing the mushroom growing industry, but the letter was not received. The regulation . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Employment, Administrative

Updated: 13 July 2022; Ref: scu.193413

Storer v British Gas plc: CA 25 Feb 2000

An industrial tribunal hearing conducted behind the locked doors of the chairman’s office was not held in public, even if, in fact, no member of the public was prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way. The industrial tribunal system had no provision for chambers like hearings.
‘ the test as to whether a hearing is in public or in private cannot depend on whether in fact any member of the public was prevented from attending the hearing. Were that not the case, then it would be a simple stratagem not to list any case which the court administration wished to be heard in private.’

Judges:

Henry, Robert Walker, Scott Baker LJJ

Citations:

Times 01-Mar-2000, [2000] ICR 603, [2000] IRLR 495, [2000] 1 WLR 1237, [2000] 2 All ER 440

Links:

Bailii

Statutes:

Employment Rights Act 1996 111(2), Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Storer v British Gas Plc EAT 16-Oct-1998
The claimant appealed against rejection of his claim for unfair dismissal and similar, the decision being made that the applications were out of time. He also complained that the hearing had effectively heard been in private.
Held: No arguable . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Regina v Denbigh Justices QBD 1974
The Court was sitting in Llanrwst, in Court 2, a small court. There, in a list of minor offences, two members of the Welsh Language Society were being prosecuted for using their televisions without licences. They attended for their trial with 20 or . .
Cited – Hodgson and others v Imperial Tobacco Limited Gallagher Limited etc CA 12-Feb-1998
A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing . .
Cited – Mcpherson v McPherson PC 16-Dec-1935
(Alberta) The Board considered the degree of publicity appropriate at the trial of divorce suits. The undefended divorce of a well-known politician was conducted not in a court room (though there were empty courts available) but in the Judges’ . .

Cited by:

Cited – Pelling, Regina (On the Application of) v Bow County Court Admn 19-Oct-2000
. .
Cited – Pelling, Regina (on the Application Of) v Bow County Court CA 22-Jan-2001
Application for permission to appeal from refusal of leave to bring judicial review. . .
Cited – A Practitioner v Customs and Excise VDT 12-Dec-2003
PROCEDURE – hearing in public or private – VAT Tribunals Rules 1986 r 24(1) – assessment to recover allegedly over-claimed input tax – VATA 1994 ss 25, 26, VAT Regs 1995, reg 29, Sixth Directive art 18 – Human Rights Convention arts 6 and 8 – . .
Cited – O’Connor and Another, Regina (on The Application of) v Crown Prosecution Service and Another Admn 4-Nov-2016
Questions about the respective powers of courts and court staff to exclude members of the public from a court building because of a perceived risk that they would cause disruption and about when an unlawful limitation of access deprives a hearing of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 July 2022; Ref: scu.89575

Croker v Surrey County Council: EAT 8 Nov 2011

Appeal against a decision of the Employment Judge rejecting the Appellant’s claim on the basis that it was out of time. The Appellant was a retained firefighter with Surrey County Council, who had made claims after injury on duty.

Judges:

Shanks J

Citations:

[2012] UKEAT 0358 – 11 – 1811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.639656

Dibble v Falzon and Another (T/A The Anne Arms): EAT 20 Jun 2018

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant, a long-standing pub worker, was dismissed after an investigation and disciplinary hearing based on an allegation of theft. The Employment Judge did not set out the reason for dismissal given by the employer at the time in the dismissal letter or make a finding of what was the reason for dismissal. It was not in dispute that the Claimant took money from the till. The issue was whether the Claimant had been dishonest. Further, the Employment Judge erred in failing to consider and give reasons for the decision that the Respondents’ investigation and decision to dismiss was reasonable notwithstanding that there was evidence available to the Respondents that the takings in the till were up and not down and that they considered that takings being down as important. Appeal allowed. Claim remitted for hearing before a different Employment Tribunal.

Citations:

[2018] UKEAT 0010 – 18 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 July 2022; Ref: scu.625441

Sandsfield Gravel Co Ltd v Loving: EAT 28 Apr 2009

EAT UNFAIR DISMISSAL: Reasonableness of dismissal / Mitigation of loss
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Whether infringed
An Employment Tribunal had correctly held that the failure of an employer to provide adequate details of the complaints against an employee vitiated the disciplinary proceedings so that the dismissal was automatically unfair by virtue of Section 98A Employment Rights Act 1996.
The Employment Tribunal had however, inadmissibly substituted its own views of the evidence for those of the Employer when finding that the Employer could not properly have regarded as gross misconduct, the actions of the employee. The employee had driven a company van in an area frequented by children having drunk a small quantity of wine while holding the glass out of the window of the van.
The Employment Tribunal had correctly found that the termination of a subsequent contract of employment [where the Claimant lacked qualifying service to protect her against unfair dismissal] did not break the chain of causation of the original unfair dismissal.

Citations:

[2009] UKEAT 0415 – 08 – 2804

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.342106

European Wellcare Scotland (11) Ltd v Lucas: EAT 5 Mar 2009

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL: Reasonableness of dismissal
Appeal dismissed. No error of law in the Tribunal’s reasoning and no bias or procedural irregularity. Appeal misconceived; costs awarded.

Citations:

[2009] UKEAT 0444 – 08 – 0503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.346598

Central and North West London NHS Foundation Trust v Abimbola: EAT 3 Apr 2009

EAT UNFAIR DISMISSAL: Reinstatement/re-engagement
Order for reinstatement made. The Employment Tribunal failed to take into account relevant factors in the exercise of their discretion. Appeal allowed; reinstatement order set aside.

Citations:

[2009] UKEAT 0542 – 08 – 0304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.347173

Chondol v Liverpool City Council: EAT 11 Feb 2009

EAT RELIGION OR BELIEF DISCRIMINATION
Social worker dismissed on charges which included inappropriate promotion of his religious beliefs and arranging a visit to his home by a service user in a manner which blurred the distinction between client and friend. Claims for unfair dismissal and religious discrimination.
Tribunal found that evidence did not justify any finding of inappropriate promotion of religious beliefs but that dismissal justified on other charge – Dismissal did not constitute religious discrimination because it was on grounds of inappropriate proselytisation rather than of Appellant’s religion as such.
Held:
(1) Tribunal entitled to find dismissal fair on basis of only part of the employer’s reasoning; and conclusion on fairness not perverse.
(2) Tribunal entitled to dismiss discrimination claim on the basis that it did – No error in identification of comparator: Shamoon and Ladele relied on.

Citations:

[2009] UKEAT 0298 – 08 – 1102

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .

Cited by:

Cited – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.304520

Stanley v Capital Law Llp: EAT 3 Apr 2009

EAT PRACTICE AND PROCEDURE: Compromise
Appeal from an Employment Judge who held that the Claimant could not pursue his claims by reason of a Compromise Agreement and that the Respondent was entitled to refuse to pay the termination payment under the Compromise Agreement because of the Claimant’s fundamental breach. The Claimant sought to argue a variation of perversity based on CPR Part 52.11(3) and Assicurazioni Generali SpA v Arab Insurance Group [2003] 1WLR 577. Submission rejected. The jurisdiction of the EAT was narrower than that of the Court of Appeal . Yeboah v Crofton [2002] IRLR 634 applied.

Citations:

[2009] UKEAT 0417 – 08 – 0304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.331201

Beck v Canadian Imperial Bank of Commerce: EAT 2 Mar 2009

EAT PRACTICE AND PROCEDURE: Disclosure
Disclosure of specific documents is necessary where evidence in a different employee’s grievance, of a ‘smoking gun’ supporting the Claimant’s case of race discrimination, is found and sought to be pursued. Employment Judge’s refusal set aside and a fresh narrower application granted.

Citations:

[2009] UKEAT 0064 – 09 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

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, Discrimination

Updated: 12 July 2022; Ref: scu.317867

Accurist Watches Ltd v Wadher: EAT 23 Mar 2009

EAT JURISDICTIONAL POINTS: Extension of time: just and equitable
Claim for age discrimination presented five weeks out of time – Claimant not giving evidence as to reason for delay but relying on medical reports and other documentary material – Held that Judge entitled to find that it was just and equitable to extend time notwithstanding certain deficiencies in the material before him – Observations on the nature of the evidence which should be put before Tribunals hearing preliminary or interlocutory matters, particularly applications for extensions.

Citations:

[2009] UKEAT 0102 – 09 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.331191

Virgin Media Ltd v Seddington and Another: EAT 31 Mar 2009

EAT UNFAIR DISMISSAL: Polkey deduction
JURISDICTIONAL POINTS: 2002 Act and pre-action Requirements,
‘Automatic’ unfair dismissal for redundancy by reason of non-compliance with statutory procedure – Jobs found to have genuinely disappeared, but employer found to have made no proper attempt to find alternative employment – Issue whether Claimants would have found/accepted alternative employment even if the employer had acted fairly – Tribunal declined to consider making ‘Polkey’ deduction on basis of the inadequacy of the evidence and awarded an uplift of 40%
On the Polkey issue, held that Tribunal not entitled to decline to consider making a deduction – Software 2000 v Andrews [2007] ICR 825 considered – Discussion of burden of proof in alternative employment cases.
On the uplift issue, held that the Tribunal had failed to assess the culpability of the non-compliance and had approached the issue too mechanistically – McKindless Group v. McLaughlin [2008] IRLR 678 applied

Citations:

[2009] UKEAT 0539 – 08 – 3103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .

Cited by:

Cited – Wardle v Credit Agricole Corporate and Investment Bank CA 11-May-2011
The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.328010

Lewes Associates Ltd (T/A Guidos’s Restaurant) v Little: EAT 26 Feb 2009

EAT PRACTICE AND PROCEDURE: Postponement or stay Review
Duty of parties to keep EAT informed of new address. Application to postpone EAT hearing refused.
Appeal against Employment Tribunal refusal (a) to postpone substantive hearing or (b) hold a review hearing.
Postponement request properly refused; as was review application. No medical evidence (even on appeal) party was unfit to attend Employment Tribunal hearing.

Citations:

[2009] UKEAT 0460 – 08 – 2602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.317866

EPI Coaches Ltd v Lafferty: EAT 7 Apr 2009

EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
Review of striking out orders – principles summarised in Neary v Governing Body of St Albans School [2009] UKEAT/0281/08 (9 January 2009) applied – appeal allowed – application for review and linked matters remitted for re-hearing by a different Employment Judge.

Citations:

[2009] UKEAT 0065 – 09 – 0704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.331199

East Riding of Yorkshire Council v Cowton: EAT 19 Feb 2009

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Unfair dismissal – majority decision – majority found dismissal to be unfair only because employer treated other employees in a different way.
Held: majority substituted their own judgment on this issue instead of applying ‘reasonable responses’ test. Finding that dismissal was not unfair substituted.

Citations:

[2009] UKEAT 0432 – 08 – 1902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.331189

Asda Stores Ltd v Green: EAT 18 Mar 2009

EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Tribunal mis-states test and reasons in a way indicative of substituting its own judgment rather than considering whether the employer has acted reasonably.

Citations:

[2009] UKEAT 0437 – 08 – 1803

Links:

Bailii

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: 12 July 2022; Ref: scu.331192

Di Luca And Saluzzi v Italy: ECHR 2 Sep 1997

ECHR Basic distinction in law of many member States of the Council of Europe between civil servants and employees governed by private law – Court has accordingly held that disputes relating to recruitment, careers and termination of service of civil servants are as a general rule outside scope of Article 6 ss 1.
Applicants sought recognition of existence of permanent contract of employment (Fusco) or judicial review of one or more decisions of administrative authorities assigning them to a particular staff category (remaining cases) – they thus raised disputes related to their recruitment and careers which did not concern a ‘civil’ right within meaning of Article 6 ss 1 – payment of difference in salary directly dependent on prior finding that administrative authorities had acted unlawfully (Trombetta).

Citations:

25838/94, [1997] ECHR 57, 25837/94

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 20-Jan-2009
Each complainant said that in allowing hearsay evidence to be used against them at their trials, their article 6 human rights had been infringed. In the first case the complainant had died before trial but her statement was admitted.
Held: In . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 12 July 2022; Ref: scu.263135

Pepper v Lancashire County Council and others: EAT 26 Nov 2007

EAT Equal Pay Act – Part time pensions
This is a part-time pensions case. The Chairman on the papers and on review failed to deal with the Claimant’s case that he had just cause for not entering the Teachers’ Pension Scheme when his exclusion was removed. As the parties had made written submissions, for the saving of costs the preliminary hearing was converted into a full hearing, with liberty to apply. The matter would be remitted to the Employment Tribunal for it to make a decision upon the Claimant’s case. Meanwhile orders made by the Chairman relating to the undisputed period will take effect.

Judges:

McMullen QC J

Citations:

[2007] UKEAT 0404 – 07 – 2611

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: 12 July 2022; Ref: scu.262896

Padgett v Serota and Another: EAT 17 Dec 2007

EAT Religion or belief – whether claim fell within Part II (Employment and Vocational Training).
The Tribunal concluded that the claim did not fall within Part II of the Employment Equality (Religion or Belief) Regulations 2003. It did not err in law in reaching this conclusion. The claimant did not establish that his claim fell within any limb of reg 6(1) of the 2003 Regulations.

Judges:

Richardson J

Citations:

[2007] UKEAT 0097 – 07 – 1712

Links:

Bailii

Statutes:

Employment Equality (Religion or Belief) Regulations 2003

Employment

Updated: 12 July 2022; Ref: scu.262899

London Borough of Camden v Price-Job: EAT 18 Dec 2007

EAT Disability discrimination – Reasonable adjustments/Justification
1. The employers appealed against two findings by the Tribunal that they had failed to make reasonable adjustments for her disability and against the finding that their admittedly disability-related dismissal of the employee was not justified.
2. The first adjustment which the Tribunal concluded the employers ought to have made and which was the subject of the appeal was the obtaining of a medical report as to the employees’ condition and prognosis. Held (i) that in the light of the EAT’s decision in Tarbuck and subsequent cases it was not in law open to the Tribunal to find that such an adjustment should have been made (ii) the Tribunal had, following Mid Staffordshire (Tarbuck not being yet reported) concluded that the adjournment should be made without carrying out the balancing exercise required by s18B(1) of the DDA.
3. The second adjustment was re-allocation of the employee’s-duties while she was unable to work or to work fully. Held that the Tribunal had failed to take all the relevant evidence as to the employees’ condition and prognosis into account and had not concluded whether it was reasonable for the employers to have to make the adjustment.
4. As to justification, the Tribunal had failed to conclude whether, had the adjustment by way of provision of equipment to assist the employee (which adjustment was not the subject of appeal) the employee would have been enabled thereby to return to work.
5. The decision as to the first adjustment was reversed. The decisions as to the second adjustment and justification were remitted for reconsideration by the same Tribunal.

Judges:

Burke QC J

Citations:

[2007] UKEAT 0507 – 06 – 1812

Links:

Bailii

Citing:

Cited – Tarbuck v Sainsbury’s Supermarkets EAT 8-Jun-2006
EAT The appellant was disabled. She was found to have been unfairly dismissed and the subject of three acts of disability discrimination. One of these was an alleged failure to consult which was treated as a . .
Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited – British Gas Services Ltd v McCaull EAT 28-Sep-2000
EAT Disability Discrimination – Adjustments . .
Cited – Smiths Detection – Watford Ltd v Berriman EAT 9-Aug-2005
EAT The Employment Tribunal was wrong to find that the Respondent had discriminated against the Claimant under Section 6(1) of the Disability Discrimination Act 1995 because it omitted to find what arrangements . .
Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Cited – Hay v Surrey County Council CA 16-Feb-2007
The claimant had been employed driving a mobile library. She came to suffer back problems, and was dismissed when the respondent said that she could not work within a library without the ability to lift, after she turned down a move to a different . .
Cited – Southampton City College v Randall EAT 22-Sep-2005
EAT Disability Discrimination: Reasonable Adjustments and Justification; Unfair Dismissal: Reasonableness of Dismissal
The Employment Tribunal is correct in finding that as employer did not regard the . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.262898

Initial City Link v Turner: EAT 13 Aug 2007

EAT Trade Union Rights – Interim relief
Applicant was dismissed. ET made no finding as to unfair dismissal – presumably because it found automatic unfair dismissal due to trade union membership. The appeal considered the question of the drawing of inferences on their case.

Judges:

Pugsley J

Citations:

[2007] UKEAT 0569 – 06 – 1308

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.262311

Shaw v CcD Ltd: EAT 22 May 2007

EAT Unfair dismissal – Constructive dismissal
Sex discrimination – direct
Sex discrimination – indirect
The Employment Tribunal made substantial findings of unlawful discrimination, not appealed. However, the Respondent’s rejection of the Claimant’s application to work part-time on her return from maternity leave was an act of direct and indirect sex discrimination. The Claimant left promptly in response. The Tribunal misconstrued the Claimant’s application holding effectively that it was about flexible working and did not contain an application to work part-time. On the correction of this error, the only conclusion was that the Claimant was constructively dismissed. In the circumstances of this case, the act of direct and indirect discrimination constituted repudiation of the contract which was accepted promptly by the Claimant when she resigned for that reason. There was no explanation or defence of fairness and so the dismissal was unfair.

Judges:

McMullen QC HHJ

Citations:

[2007] UKEAT 0512 – 06 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.262308

J P Ticktum and Shranks Solicitors v Bannister: EAT 5 Jul 2007

EAT Unfair Dismissal – Compensation / Mitigation of Loss
Compensation for loss of earnings for unfair dismissal awarded from dismissal to hearing and 6 months thereafter. Appeal based on lack of reasons for rejecting Respondent’s case as to mitigation and future loss. Held that the reasons, although sparse, were sufficient. In the absence of a perversity challenge, appeal dismissed.

Citations:

[2007] UKEAT 0120 – 07 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.262309

East Thames Buses v Davis: EAT 10 Aug 2007

EAT Unfair dismissal – Exclusions including worker/jurisdiction
The Claimant, a bus driver, subject to physical violence and racist behaviour. Issue as to whether Employment Tribunal could face unfair dismissal when Claimant had overreacted. Employment Appeal Tribunal found that the ER did correctly consider reasonable response.

Citations:

[2007] UKEAT 0288 – 07 – 1008

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.262310

North Wales Probation Area v Edwards: EAT 12 Dec 2007

EAT Contract of employment: Definition of employee
Whether claimant employed under a contract of employment – ‘sessional employment’ – succession of contracts
The claimant was placed on a list of relief hostel workers, after signing a document entitled ‘Relief Hostel Worker Contract’ which set out terms and conditions under which the respondent offered ‘sessional employment’. Relief hostel workers could decline to work any particular shift, or could make arrangements for another relief hostel worker to cover the shift for them. The Tribunal Chairman did not err in law in finding that, when the claimant worked a session, she did so pursuant to a contract of employment for that session. Cornwall County Council v Prater [2006] IRLR 362 applied.

Judges:

Richardson J

Citations:

[2007] UKEAT 0468 – 07 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.262319

Hart v Chief Constable of Derbyshire Constabulary: EAT 6 Dec 2007

EAT Disability discrimination – Reasonable adjustments
The Tribunal found that the Chief Constable was entitled to terminate the services of a probationary constable who could not successfully complete her probationary period because certain disabilities prevented her from carrying out duties in a confrontational setting. It was not a reasonable adjustment to expect the Chief Constable to dilute the standards required. The EAT dismissed the appeal and held that this was a decision the Tribunal was entitled to reach.
Elias P said: ‘In our judgment, the crucial feature here is that the police authority are in effect playing two different roles. They are the employer, but in determining whether the probationary period has been satisfactorily been completed they are also assessing a standard of competence against national criteria. Regulation 12 of the Police Regulations makes it plain that a constable who has completed satisfactorily a probationary period will be able to transfer to another police force without being required to do a further period of probation. In effect the police authority is confirming a formal status on the officer by representing that he or she has completed the probationary requirements.’

Judges:

Elias P J

Citations:

[2007] UKEAT 0403 – 07 – 0612

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 3A(3), Police Regulations 2003 12 13

Citing:

Cited – Paterson v Commissioner of Police of the Metropolis EAT 23-Jul-2007
EAT PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he . .
Cited – Archibald v Fife Council HL 1-Jul-2004
The claimant was employed as a street sweeper. She suffered injury to her health making it difficult to do her work. She was dismissed, and claimed that being disabled, the employer had not made reasonable adjustments to find alternative work for . .

Cited by:

Appeal from – Hart v Chief Constable of Derbyshire Constabulary CA 24-Jun-2008
The claimant renewed her application for leave to appeal. She had been a probationary constable, but after various injuries came to suffer disability, preventing her being able to carry out the routine activities of as constable, and her employment . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Police

Updated: 12 July 2022; Ref: scu.261966

A Blitz v Equant Integration Services Ltd (T/A Orange Business Services): EAT 2 Nov 2007

EAT Disability discrimination: Less favourable treatment / Harassment
Practice and Procedure: Application/claim / Amendment
The Tribunal applied wrong tests in respect of disability related discrimination. On the application of the right tests, based on the Tribunal’s findings of fact, its conclusions were clearly correct in respect of two claims, but three claims were remitted to the same Tribunal for fresh consideration of unresolved issues, primarily of detriment and justification. The three stage test explained (paragraphs 32 to 35).
In regard to harassment, the Tribunal did not originally reach a decision, and did so after a Bu rns/Barke referral, when a review was refused: the decision not to review, by reference to primarily s3B(2) of the DDA, was upheld.
The Respondent’s cross appeal was allowed, since the Appellant’s bonus claim, only referred to in closing written submissions exchanged after close of evidence, was plainly not pleaded and out of time and no application to amend was sought, and it should not have been permitted.
A firm recommendation is given to employment tribunals to allow the opportunity for some oral argument where closing written submissions are exchanged. Had the Tribunal done so in this case, most of the problems raised by the appeal and the cross-appeal would not have arisen (paragraph 88).

Judges:

Burton J

Citations:

[2007] UKEAT 0259 – 07 – 0211

Links:

Bailii

Citing:

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

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: 12 July 2022; Ref: scu.261965

West Midlands Police v Blackburn and Another: EAT 11 Dec 2007

EAT Equal Pay Act – Material factor defence
The claimant police officers received less than their male comparator doing like work. The reason was that he worked shifts involving night work and received a special payment (effectively a bonus) for this, but they did not work those hours because they were incompatible with their child care responsibilities. The Tribunal held that it was a legitimate objective to reward night work, but that the Chief Constable could have paid the claimants as though they had done night work, even though they had not. It would not have been a significant expenditure and would have eliminated the discrimination. The EAT upheld the Chief Constable’s appeal and held that the Tribunal had misunderstood the nature of the justification defence and had erred in concluding that the differential was not reasonably justified.

Judges:

Elias P J

Citations:

[2007] UKEAT 0007 – 07 – 1112, [2008] ICR 505

Links:

Bailii

Statutes:

Equal Pay Act 1970 1

Cited by:

Cited – Blackburn and Another v West Midlands Police CA 6-Nov-2008
The claimants, female police officers, complained that male officers had received priority payments where they had received none. The defendant said that the payments were justified in achieving a proper aim, namely the encouragement of night . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.261967

Johns v Solent SD Ltd: EAT 30 Oct 2007

EAT Practice and Procedure: Postponement or stay
Age Discrimination
Stay of proceedings where age discrimination is alleged. There is no basis for a valid claim in current UK law, but a case (Heyday) has been referred to the ECJ, which if successful would provide the Claimant with a valid claim. Should the claim be stayed pending the ECJ decision (the result of which should not be prejudged by the English Courts) or should the claim be struck out. Appeal allowed. Stay granted.

Citations:

[2007] UKEAT 0449 – 07 – 3010

Links:

Bailii

Cited by:

Appeal From – Johns v Solent SD Ltd CA 12-Jun-2008
The court considered whether it was proper to issue a stay of proceedings to await a judgement in the EJ on a related issue. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.261964

Assembly Solutions and Tools Ltd v Mitchell: SCS 7 Dec 2007

Citations:

[2007] ScotCS CSOH – 195

Links:

Bailii

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.

Scotland, Employment

Updated: 12 July 2022; Ref: scu.261924

Alstom Transport v Tilson: EAT 4 Dec 2007

EAT Practice and Procedure – Bias, misconduct and procedural irregularity
The Employment Tribunal refused an application by the respondent employer to join two other respondents. This was made at the beginning of a pre-hearing review at which the issue to be determined was whether the claimant was employed under a contract of employment with the respondent. That hearing was not completed on that day and was adjourned to a later date. In the course of giving its reasons on joinder, a decision given prior to the pre-hearing review being resumed, the Tribunal made reference to certain aspects of the evidence which had not been relied upon by either party in the course of argument, and expressed conclusions which were highly relevant to the issue to be determined in the pre-hearing review. The respondent alleged that the Tribunal had erred in law both in its approach to the joinder issue, and because it had effectively pre-judged the issue to be determined at the pre-hearing review, or at the very least had given the impression that it had done so. The EAT upheld both grounds of appeal.

Judges:

Elias P J

Citations:

[2007] UKEAT 0532 – 07 – 0412

Links:

Bailii

Cited by:

See Also – Alstom Transport v Tilson EAT 11-Nov-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
The Employment Judge was wrong to decide a contractual document was bogus so opening the way for a finding in the Claimant’s favour that he had an . .
See Also – Tilson v Alstom Transport CA 19-Nov-2010
The parties disputed whether the claimant agency worker was in law the employee of the respondent.
Held: The test was whether it was necessary to infer such a contract to explain the conduct of the parties (Elias LJ). The EAT were right to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.261799

United Grand Lodge of England v Daley: EAT 28 Nov 2007

EAT Unfair dismissal – Contributory fault / Polkey deduction
The Claimant was found to be unfairly dismissed. The Tribunal found that the employer had not acted reasonably under section 98(4) and made no Polkey and/or contribution deduction. The EAT found the Employment Tribunal did not deal adequately with Polkey and/or contributory fault issues.

Judges:

Puhsley HHJ

Citations:

[2007] UKEAT 0229 – 07 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.261798

Polyglobe Group Ltd v Vadher, Hassen: EAT 21 Apr 2005

EAT Practice and Procedure – Bias, misconduct and procedural irregularity. The Employment Tribunal made an important factual finding as to the process by which the employees were dismissed, the finding being on a matter which was not put to the employer during the hearing and on which they had no opportunity to lead evidence. Did those circumstances entitle the employer to have the employees’ unfair dismissal applications remitted to the employment tribunal for re-hearing?
EAT Practice and Procedure – Bias, misconduct and procedural irregularity.

Judges:

The Honourable Mr Justice Rimer

Citations:

[2005] UKEAT 0011 – 05 – 0308, UKEAT/0011/05

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.229265

D Bamsey and others v Albon Engineering and Manufacturing Plc: CA 25 Mar 2004

The applicants worked under an arrangement where they received considerable payments additional to their basic pay for compulsory overtime, but the holiday pay was calculated by the employer on the basic pay.
Held: The 1998 Regulations were intended to protect workers, but the directive did not require any payment over and above the contractual entitlement. The method of calculation of holiday pay had been left to the discretion of the member states, though some form of calculation was essential to any provision. The differences between regulations showed that it was not intended to grant a right beyond the contractual one.

Judges:

Lord Justice Auld Lord Justice May Lord Justice Jacob

Citations:

[2004] EWCA Civ 359, Times 15-Apr-2004, [2004] IRLR 457, [2004] ICR 1083

Links:

Bailii

Statutes:

Employment Rights Act 1996 221 222 223 224, Working Time Regulations 1998 16

Jurisdiction:

England and Wales

Citing:

Appeal from – D Bamsey and others v Albon Engineering Ltd EAT 3-Mar-2003
EAT Working Time Regulations – holiday pay calculation . .

Cited by:

Cited – British Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
Cited – British Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.195002

Raymond Franks v Reuters Limited, First Resort Employment Limited: CA 10 Apr 2003

The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he was not an employee without first listening to the evidence to see whether there was an employment contract implied.
Held: The tribunal had not clearly addressed the question of whether a contract existed. The appeal was allowed and the case was remitted to a fresh tribunal to determine whether there was an implied contract of service between the applicant and the end-user.

Judges:

Lord Justice Mummery Lord Justice Thorpe The President

Citations:

[2003] EWCA Civ 417, Times 23-Apr-2003, [2003] ICR 1166, [2003] IRLR 423

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .

Cited by:

Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 July 2022; Ref: scu.180705

Forbes v LHR Airport Ltd (Race Discrimination – Direct : Harassment): EAT 28 Feb 2019

RACE DISCRIMINATION – Direct
HARASSMENT – Conduct
A colleague of the Appellant, Ms S, posted an image of a golliwog on her private Facebook page with the caption, ‘Let’s see how far he can travel before Facebook takes him off’. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Appellant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Appellant complained to the Tribunal of harassment, victimisation and discrimination.
The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Appellant appealed.
Held (dismissing the appeal) that section 109(1) of the Equality Act renders an employer liable for the acts of an employee done ‘in the course of employment’. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones v Tower Boot Co Ltd [1997] IRLR 168 applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Appellant was done in the workplace and might be said to have been done ‘in the course of employment’. However, that was not the complaint that the Tribunal had to consider.

Citations:

[2019] UKEAT 0174 – 18 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.639323

Mervyn v BW Controls Ltd: EAT 28 Mar 2019

UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Case Management
The Appellant, a litigant in person, claimed in her ET1 that she had been unfairly dismissed ‘(including constructive dismissal)’. The particulars attached to the ET1 apparently described a constructive dismissal claim. At a Case Management Hearing, she said that she had not resigned, a position which she maintained in correspondence during the litigation. The list of issues from the Case Management Hearing recorded that she had said that she had not resigned, and that the issues, in short, were whether she had resigned (the Respondent’s position) or had been dismissed (her position). At the start of the substantive hearing, the Employment Tribunal (‘the ET’) confirmed with the parties that they agreed with the list of issues. They did. The ET found that the Appellant had resigned, and had not been dismissed. Her claim therefore failed. She was given leave to appeal on the basis that it was arguable that the ET should have considered her constructive dismissal claim. The Employment Appeal Tribunal held that, on the facts, the ET could not be criticised for not deciding the potential unfair dismissal claim. Such a claim was inconsistent with her position during the litigation, and inconsistent with the evidence she gave to the ET.

Judges:

Laing DBE J

Citations:

[2019] UKEAT 0140 – 18 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.639325

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 respect of which an order for costs was made, and (2) the Claimant’s other complaints, in particular ordinary unfair dismissal, in respect of which no order for costs was made.
2. In assessing the proportionality of the costs, the Employment Judge relied on the Claimant’s schedules claiming in excess of pounds 2 million. These were the documents of a lay person. She ought to have asked herself what was really in issue in the proceedings, and in so deciding should have taken into account the lower and more realistic schedule lodged by the Claimant’s representatives at a time when he was represented.

Citations:

[2019] UKEAT 0114 – 18 – 0407

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Gosalakkal v University Hospitals of Leicester NHS Trust EAT 4-Jul-2019
(Practice and Procedure – Reconsideration) The Employment Judge did not give supportable reasons for refusing the Claimant’s application for reconsideration. . .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 12 July 2022; Ref: scu.639330

Elston v Robbie’s Photographic Ltd and Another: EAT 7 May 2019

(Unfair Dismissal – Polkey Deduction – UNFAIR DISMISSAL – Contributory fault
VICTIMISATION DISCRIMINATION – Other forms of victimisation
The Claimant had taken photographs of invoices she had seen during her work, which she considered established that she had not been told the truth by her employer about her pay and working hours. She provided copies of these photographs to her solicitor, who was assisting with her grievance, but was subsequently dismissed for breach of confidentiality. The ET accepted that the act of sending the photographed copies of the invoices to her solicitor was a protected act but found the Claimant’s dismissal was in no way related to that act; to the extent the Respondent had been aggrieved about her conduct in that regard, it was because she failed to demonstrate support in a time of financial hardship. When considering the Claimant’s complaint of unfair dismissal, however, the ET found that the reason for her dismissal was her conduct in photographing the invoices and then sending those images to her solicitor. Given the context, the ET did not find this was an act of gross misconduct but it held that the decision to dismiss did not fall outside the band of reasonable response given the Respondents’ sense of grievance about what was seen as a lack of trust and the Claimant’s perceived failure to demonstrate support in a time of financial hardship. The ET went on to find the dismissal had been unfair for procedural reasons but concluded that, if a fair procedure had been followed, there was still an 80% likelihood that the Claimant would have been dismissed. The ET further held that the Claimant’s conduct was such that there should be a further 80% reduction. The Claimant appealed.
Held: allowing the appeal
In considering the complaint of unfair dismissal, the ET’s findings as to the reason for the dismissal were such that it was inconsistent for it to hold that the protected act (the Claimant’s act of sending copies of the invoices to her solicitor) had not materially influenced the decision: that was an unavoidable consequence of its finding as to the reason for the dismissal and it was perverse of the ET to find otherwise. The ET’s decisions relevant to the Polkey reduction and on contributory conduct were also unsafe. The ET had failed to grapple with the question of seriousness in relation to the Claimant’s conduct, failing to demonstrate that it had any regard to the context in which the Claimant had passed on the photographs (for a specific purpose related to getting advice and assistance in her grievance, and sent to a solicitor, who was bound by their own duty of confidence). As for its finding on contributory fault, that was inadequately reasoned given that – in the particular context the ET had itself identified – there was no explanation as to why the Claimant’s actions had been blameworthy.
In relation to the victimisation claim, given the ET’s findings of fact, there was only one possible outcome and the Judgment in that regard would be set aside and substituted by a finding that the victimisation claim relating to the Claimant’s dismissal was upheld. The questions of any reduction under Polkey and/or for contributory fault would be remitted for reconsideration to a differently constituted ET.

Judges:

Eady QC HHJ

Citations:

[2019] UKEAT 0282 – 18 – 0705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 July 2022; Ref: scu.639327