Citations:

[1997] UKEAT 808 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207768

Citations:

[1997] UKEAT 787 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207878

Citations:

[1997] UKEAT 961 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207753

Citations:

[1997] UKEAT 728 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207822

Citations:

[2001] EWCA Civ 1812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.201501

Citations:

[1999] UKEAT 1218 – 98 – 1702

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.204813

Citations:

[2003] EWCA Civ 521

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.180727

The Claimant resigned after a TUPE transfer and claimed unfair dismissal relying on alleged fundamental breaches of contract by his employer and/or on regulation 4(9) of TUPE arising from the introduction of new standby/call out arrangements and the extension of his duties in relation to safety. The ET rejected his claim that he was to be treated as dismissed on either basis, finding (a) that under his existing contract the employer was entitled to introduce the changes and (b) that the changes were not ‘substantial change(s) in working conditions to [his] material detriment’.
On his appeal the EAT held:
(a) that the ET’s finding that under the claimant’s existing contractual terms the employer was entitled to introduce the changes was open to it; but
(b) that that finding was irrelevant to the issue under regulation 4(9); and the finding that the changes were not substantial and to the claimant’s material detriment were perverse on a proper application of regulation 4(9), as explained in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972.
Accordingly the appeal was allowed and the issue of unfair dismissal remitted to the ET.

Citations:

[2021] UKEAT 0155 – 20 – 0404

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.661701

The Tribunal refused to grant extensions of time:
(1) by one day for a party’s notification under Rule 3(10) of the EAT Rules 1993 of dissatisfaction with a decision under Rule 3(7), where there was no clear and acceptable explanation for the delay; and
(2) by 219 days for the lodging of a Notice of Appeal, where on analysis the Appellant could have appealed in time and the real reason for the delay was a change of mind.

Citations:

[2021] UKEAT 1150 – 19 – 0104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.661711

The Employment Tribunal erred in failing to give a reasoned determination of the causation issue in this claim; was the Claimant subject to the detriments she established on the ground of having made the protected disclosures accepted to have been made by the Tribunal. The matter is remitted to the same Employment Tribunal to determine this issue.

Citations:

[2021] UKEAT 0279 – 19 – 1903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.661705

Appeal against refusal by the Employment Judge to strike out Dr Armes’ claims under sections 47B, 103A and 100(1)(c) Employment Rights Act 1996. The application to strike out was made on the basis that Dr Armes had no reasonable prospect of establishing that his pleaded disclosures were ‘qualifying disclosures’ within the meaning of section 43B(1), or health and safety disclosures within the meaning of section 100(1)(c) of the 1996 Act.
Held: the Employment Judge had erred in law in failing to identify the information which was said to have been disclosed in each of Dr Armes’ pleaded disclosures and to consider whether that information was capable of satisfying the relevant statutory definitions. Six of the seven disclosures had no reasonable prospect of satisfying those definitions and would therefore be struck out subject to Dr Armes having the opportunity to apply to amend his pleaded case within 28 days.
Consideration of the interpretation and application of section 43B(1) of the 1996 Act in the light of Kilraine v London Borough of Wandsworth [2018] ICR 1850 CA and Fincham v HM Prison Service UKEAT/0925/01.

Citations:

[2020] UKEAT 0030 – 20 – 2310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.661656

Citations:

[2018] UKEAT EAT – PD – 2018

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.631859

Citations:

[1836] EngR 21, (1836) 1 M and W 506, (1836) 150 ER 534

Links:

Commonlii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.314353

The court considered whether an agency worker could be an employee of the defendant. Mummery LJ said: ‘As illustrated in the authorities, there is a wide spectrum of factual situations. Labels are not a substitute for the legal analysis of the evidence. In many cases agency workers will fall outside the scope of the protection of the 1996 Act because neither the workers nor the end users were in any kind of express contractual relationship with each other and it is not necessary to imply one in order to explain the work undertaken by the worker for the end user.’

Judges:

Mummery, Thomas, Lloyd LJJ

Citations:

[2008] EWCA Civ 35, [2008] ICR 545, [2008] IRLR 302

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – James v Greenwich Council EAT 18-Dec-2006
james_greenwichEAT06
EAT Contract of Employment – Definition of employee
The Appellant was supplied by an agency to carry out work for Greenwich Council. She had no express contract with the Council but she contended that there . .

Cited by:

Cited – RSA Consulting Ltd v Evans CA 23-Jul-2010
The respondent worked as a consultant for the appellant through an intermediary agency. When the arrangement was terminated, she had made a claim alleging an unauthorised deduction from her wages in repect of a contractual period of one month’s . .
Cited – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 November 2022; Ref: scu.264100

EAT Contract of Employment – Breach of Contract
EAT Contract of Employment – Breach of Contract.

Judges:

His Honour Judge Peter Clark

Citations:

EAT/44/00, [2000] UKEAT 44 – 00 – 1407

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Asamoah-Boakye v Walter Rodney Housing Association Ltd CA 24-May-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 November 2022; Ref: scu.265349

The claimant alleged that his selection for redundancy was unfair, the company having failed properly to consult its own employee consultation council and in having failed to disclose its scoring system. The company said that any such complaint could only be made by the representative with whom consultation should have taken place.
Held: The claimant had no standing to make an application personally: ‘there is no protection gap in the legislation which results from according the statutory language its obvious and natural meaning. I do not accept that a purposive approach produces a different result.’ and
‘I do not doubt that traditional trade unionists would view consultative arrangements such as the ones in the present case with suspicion and distaste. However, neither the statute nor its parent Directive made assumptions about the relative merits of independent trade unions and non-union representatives.’

Judges:

Potter P, Maurice Kay LJ, Wilson LJ

Citations:

[2007] EWCA Civ 1304, [2008] ICR 410, [2008] IRLR 222

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 188, Council Directive 98/59/EC

Jurisdiction:

England and Wales

Citing:

Cited – Hollister v National Farmers Union (NFU) CA 1979
The correct approach for the Industrial Tribunal looking at a company re-organisation is to make a finding as to the advantages to the employers of a proposed re-organisation and whether it was reasonable for them to implement it by terminating . .
Cited – Mcloughlin v Jones and others CA 5-Jul-2006
. .
Cited – Jones v Mid-Glamorgan County Council CA 13-May-1997
On being told he was to be dismissed, Mr Jones had taken early retirement. He made a claim in the County Court that his pension had been wrongly reduced, The court rejected his allegation that he had acted under duress. His subsequent claim of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 November 2022; Ref: scu.262112

Citations:

[1997] UKEAT 522 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207869

Citations:

[2001] UKEAT 232 – 01 – 1511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.204581

Citations:

[2001] UKEAT 1260 – 00 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.203714

Citations:

[1997] UKEAT 881 – 97 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.207800

Application for permission to appeal against a decision of the Employment Appeal Tribunal

Citations:

[2001] EWCA Civ 1890

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.201509

Citations:

[2001] EWCA Civ 1183

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – ALM Medical Services Ltd v Bladon EAT 19-Jan-2001
. .

Cited by:

See Also – ALM Medical Services Ltd v Bladon CA 22-Nov-2001
Application for leave to appeal. . .
See Also – ALM Medical Services Limited v Bryan Bladon CA 26-Jul-2002
The employee claimed that he had been unlawfully dismissed, and that his dismissal broke the protection given to whistleblowers under the Act. The employer appealed.
Held: In such claims it was necessary first for the tribunal to establish . .
Cited – Arthur v London Eastern Railway Ltd (T/A One Stansted Express) CA 25-Oct-2006
The claimant brought a claim for detriment suffered after he had made a protected disclosure. The employer replied that he was out of the three month time limit. He had been off sick after being assaulted, and said that his employers had treated him . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 November 2022; Ref: scu.201200

Citations:

[2001] EWCA Civ 1623

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 November 2022; Ref: scu.201371

Local Government pensions

Citations:

[2003] EWCA Civ 280, [2003] ICR 1008, [2003] 2 All ER 761, [2003] IRLR 359, [2003] Pens LR 79, [2003] OPLR 187

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – The Mayor and Burgesses of the London Borough of Newham v Skingle and the Pensions Ombudsman ChD 23-May-2002
The applicant was a retired local government worker. His pension was determined by his final salary. He worked many hours overtime. Was that overtime to be included when calculating his pension? The regulations included all payments, but not . .
Cited – Woods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.180719

ECJ Officials – Promotion – Absence of staff report – Irregularity in the promotion procedure.

Citations:

T-82/98, [2000] EUECJ T-82/98

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 25 November 2022; Ref: scu.173530

The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had therefore failed to exercise it, and remitted the case for rehearing. The employer appealed.
Held: The interpretation of the chairman’s letter as a failure to exercise a discretion was not justified. The appeal was allowed.

Judges:

Beldam, Henry, Thorpe LJJ

Citations:

[1999] IRLR 184, [1998] EWCA Civ 1567

Links:

Bailii

Statutes:

Industrial Tribunal Constitution (Rules of Procedure) Regulations 1993 4(1)(a)

Jurisdiction:

England and Wales

Citing:

Leave to appeal – Merseyside Tec Limited v Noorani CA 21-Nov-1997
Application for leave to appeal. The respondent had said that the EAT had erred in overturning the tribunal chair’s decision not to issue witness summonses.
Held: Leave was granted. . .
See Also – Noorani v Merseyside TEC Ltd EAT 17-Jun-1997
The claimant appealed against the dismissal of his complaint of race discrimination saying that the tribunal had erred in not issuing a witness summons. The tribunal had said that the potential evidence was not relevant.
Held: There had been . .
Cited – Dada v Metal Box Co Ltd NIRC 1974
Sir John Donaldson sets out the considerations when a witness order is sought in an employment dispute before the court. He said: ‘We are quite clear that tribunals have a discretion in deciding whether or not to issue witness orders. There is no . .
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .
Cited – Ashmore and Others v Corporation of Lloyds HL 13-May-1992
A Judge’s interlocutory order for the trial of a preliminary point could be set aside only if it was clearly wrong: ‘In my opinion, when a judge alive to the possible consequences decides that a particular course should be followed in the conduct of . .
Cited – Gorman v The Trustees of St Clare’s Oxford EAT 23-Oct-1980
The employee sought witness summonses for his employer’s senior management to attend. The tribunal judged that they would be most unlikely to be able to add anything to the witness in middle management who was to be called in relation to deal with . .

Cited by:

See Also – Noorani v Merseyside TEC Limited EAT 21-Apr-1999
A tribunal’s discretion not to grant witness summonses because the witnesses appeared to be only of limited relevance was not to be interfered with, save where it was unreasonable. A tribunal can always act to remedy the refusal later if this . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.145046

The rights acquired by an employee in a transfer of undertaking were not capable of being waived by him, and remained exercisable against a transferee of an undertaking, despite the contents of any contract with the business purchaser.

Citations:

Gazette 18-Nov-1998, Times 22-Oct-1998, Gazette 11-Nov-1998, [1998] EWCA Civ 1551

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Acquired Rights Directive 77/187/EEC

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.145030

A refusal by an employer to enter formal negotiations with a union, regarding terms which might be imposed by a new transferee employer where the identity of such new employees was not yet known, did not constitute a trade dispute allowing strike action and immunity.

Citations:

Times 15-Oct-1998, Gazette 28-Oct-1998, [1999] ICR 204, [1998] EWCA Civ 1528, [1999] IRLR 31

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 244

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.145007

Proper approach to the making of orders for the re-engagement of employees who have been unfairly dismissed.

Judges:

Lord Justice Lewis

Citations:

[2021] EWCA Civ 559

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.661918

This appeal is primarily concerned with the scope of the rights conferred on agency workers by and the Agency Workers’ Regulations 2010 (‘the AWR’), which implements the Agency Workers Directive (‘the Directive’) into domestic law. The EAT found that:
(1) The right conferred by regulation 13(1) of the AWR (derived from Article 6.1 of the Directive), which provides that an agency worker has, during an assignment, the right to be informed by the hirer of any relevant vacant posts with the hirer, to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer, does not mean that the agency worker has a right to be entitled to apply for and be considered for, internal vacancies on the same terms as directly-recruited employees. It is a right to be notified of the vacancies on the same basis as directly-recruited employees, and a right to be given the same level of information about the vacancies as the directly-recruited employees. Angard and Royal Mail’s appeal on this issue was allowed;
(2) There was no breach of regulation 5 of the AWR arising from the fact that shift lengths for the claimant agency workers were 12 minutes longer than they would have been if the claimants had been recruited directly. The disparity arose because the weekly working hours for direct recruits were 39 hours, whereas agency workers were given shifts on the basis of a 40-hour week. Agency workers were paid for the extra time that they worked. The AWR (and the Directive) do not entitle agency workers to work the same number of contractual hours as a comparator directly-recruited worker. The reference to equal treatment in relation to ‘the duration of working time’ has a more limited meaning: it means that if the hirer sets a maximum period when a comparable employee could be required to work, the hirer could not set a different maximum for agency workers. This conclusion is consistent with the rulings of the EAT and the Court of Appeal in Kocur 1 (Kocur v Angard Staffing Solutions Ltd and another [2018] ICR 1126, and [2019] EWCA Civ 1185; [2020] ICR 170). Angard and Royal Mail’s appeal on this issue was allowed;
(3) A pay rise was implemented for the claimant agency workers some six months after it had been implemented for comparable direct employees, even though, eventually, both groups of workers were paid at the same rate for the relevant period. The EAT found that there could, potentially, be a breach of the requirement in regulation 5 of the AWR to provide equal treatment to agency workers for basic employment and working conditions relating to ‘pay’, if pay rises were implemented for agency workers at a later date than they were implemented for direct employees. The ET erred in law on this issue. The claimants’ appeal on this ground was allowed and the matter remitted to a different ET to determine whether an implied term was ordinarily included in the terms and conditions of direct employees to the effect that pay rises should be implemented within a reasonable period and, if there was such an implied term, whether the agency workers had been treated less favourably than direct employees and/or had suffered loss;
(4) The ET had not erred in law in holding that Angard and Royal Mail had not acted in breach of the obligation regarding equal treatment in relation to the ‘duration of working time’ by providing weekly half-hour ‘Work Time Listening and Learning’ training sessions for direct employees at a time when agency workers were expected to carry on with their normal work. There is nothing in the wording of either the Directive or the AWR to suggest that there is a requirement for equality of treatment in relation to the content of working time. The claimants’ appeal on this issue was dismissed;
(5) Comparable direct employees were given first refusal in relation to overtime opportunities in preference to agency workers. The ET was right to find that this did not breach the claimants’ rights under the AWR. The right to equality of treatment in relation to basic working and employment conditions concerned with ‘overtime’ did not extend to a right to equal treatment in relation to opportunities for overtime. Further, and in any event, the ET was right to undertake the hypothetical exercise of consider whether, if the claimants had been directly recruited, they would have been included in the group of employees who had a contractual right to first refusal for overtime. The ET was entitled to find that they would not have been included. The Claimants’ appeal on this issue was dismissed;
(6) The pay slips of the claimant agency workers provided a less detailed breakdown of pay information than the payslips of direct employees. The right, under regulation 5(1) of the AWR, to equal treatment for basic working and employment conditions relating to ‘pay’ did not extend to a right to the same pay information on pay slips. In any event, the ET was entitled to conclude that, if the claimants had been employed directly, they would not have had a contract term which specified a particular level of information on their pay slips. Accordingly, the ET did not err in law on this issue and the claimants’ appeal on this point was dismissed;
(7) The breaks of agency workers within each shift were of the same duration as those of comparable direct employees. Both sets of workers were paid at the same rate for their breaks. However, the short breaks in each shift were scheduled in advance for direct employees, but not for agency workers. The ET was right to find that this did not breach the AWR. The timing of breaks was not within the scope of regulation 5(1) of the AWR because it did not concern ‘the duration of working time’. In any event, the ET was entitled to find that direct employees had no contractual right to have their shorter breaks scheduled in advance. The claimants’ appeal on this point was dismissed.
Angard also appealed on the basis that the ET had erred in law in finding that Angard had failed in its obligations to provide the claimants with an accurate and up-to-date statement of particulars of their employment, as required by sections 1 and 4 of the Employment Rights Act 1996, because the terms and conditions set out in their section 1 statements did not reflect the rights conferred upon them by the equal treatment provisions of the AWR. Angard contended that the AWR did not create any contractual rights. The EAT declined to decide this issue on the basis that the appeal was premature, as the ET had not itself yet ruled on this point.

Citations:

[2020] UKEAT 0105 – 19 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.661666

Practice and procedure – claim – whether ET failed to address all claims made by the Claimant
The Claimant had made a complaint of race discrimination against the Respondent, relating to a recruitment exercise in January 2018. At a case management Preliminary Hearing, the ET identified the Claimant’s claims to be limited to two acts (both occurring on 4 January 2018): (1) the removal of his name from the list of candidates; and (2) the Respondent’s failure to expressly invite him to attend the interview day. The Claimant did not dissent from the ET’s list of issues and never asked for it to be amended. At the Full Merits Hearing, the ET accepted the Respondent’s explanation for both (1) and (2) and dismissed the Claimant’s claim. The Claimant applied for a reconsideration of the decision but that was refused. The Claimant appealed.
At a Rule 3(10) hearing, the EAT dismissed the grounds of challenge set out in the Claimant’s Notice of Appeal but was persuaded (pursuant to the submissions of an ELAAS representative assisting the Claimant that day) to permit a new, amended, Ground to proceed to a Full Hearing. By the amended ground, it was argued that the ET had erred in law by failing to identify and determine a further claim of race discrimination made by the Claimant, relating to the Respondent’s treatment of him when he attended the interview day on 5 January 2018 and its failure to offer him a position after his interview.
Held: dismissing the appeal
The ET had not erred in determining the claim before it. Although the Claimant’s Particulars of Claim had described the events of 5 January 2018, he had not suggested that these gave rise to additional grounds of claim; on the contrary, the Claimant had expressly stated that the act of race discrimination had occurred on 4 January 2018 (when the Respondent removed his name from the list of candidates and failed to invite him for interview); the Claimant’s description of events of 5 January 2018 simply provided further context, it did not identify any further alleged acts of race discrimination. This was consistent with the Claimant’s pre-action correspondence, in which he had expressly disavowed the suggestion that he was complaining of the failure to offer him a position, and made clear that his complaint related to what had happened on 4 January 2018. There was no error in the identification of the issues at the ET case management Preliminary Hearing or in the ET proceeding on the basis of that list of issues at the Full Merits Hearing: no further matter of complaint shouted out from the Particulars of Claim in this case, which was distinguishable from Mervyn v BW Controls Ltd [2000] EWCA Civ 393. It was also relevant that the Claimant had not suggested that the ET had failed to deal with any aspect of his claim in his application for reconsideration and had not addressed this point in his Skeleton Argument for the Full Hearing of his appeal. As the Claimant volunteered in oral submissions, the point raised by the amended Ground of Appeal had been identified for the first time by ELAAS counsel assisting the Claimant at the Rule 3(10) hearing.
It was not the role of the ET to seek to identify possible further claims for the Claimant arising out of events on 5 January 2018, when he had never sought to suggest that those events constituted acts of race discrimination, and it had not erred in law in determining the case the Claimant had pursued before it.

Citations:

[2021] UKEAT 0121 – 20 – 1901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.661686

The Employment Appeal Tribunal allowed an appeal by the Claimant against a finding made at a Preliminary Hearing that he was not disabled within the meaning of section 6 of the Equality Act 2010 as at 20 May 2017, the date of his dismissal. The Employment Tribunal should not have determined the issue arising under paragraph 2(1)(b) of Schedule 1 to the Act on the basis of the Respondent’s actual or constructive knowledge. That issue was remitted to the same constitution of the Employment Tribunal to be re-determined.

Citations:

[2020] UKEAT 0192 – 19 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650917

An order for disclosure under rule 31 of the 2013 Employment Tribunal Rules of Procedure can be made against a person who is not physically present in Great Britain at the time when the order is made.
The words in rule 31: ‘[t]he Tribunal may order any person in Great Britain to disclose documents or information to a party . . ‘ refer to the place where disclosure takes place and where the employment tribunal is located, not to the place where the disclosing party is located.

Citations:

[2020] UKEAT 0252 – 19 – 0605

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650923

The Claimant brought multiple complaints to the Employment Tribunal, including of harassment related to disability and failure to comply with the duty of reasonable adjustment, in relation to what she said was her excessive workload during a particular period of her employment. Her claimed excessive workload was also said to be one of the things contributing to a cumulative breach of the implied duty of trust and confidence, on which a complaint of constructive unfair dismissal was founded. Those complaints all failed.

The Claimant appealed. Ultimately the only grounds permitted to proceed to a Full Hearing in the EAT all related to the Tribunal’s decision to refuse an application to admit a document into evidence, made during closing submissions at the Hearing before it. The document was a print-out, which the Claimant had in her possession, showing information about her caseload on a particular day falling during the window to which those complaints related (‘the Caseload Document’). The EAT had stayed the appeal to allow a reconsideration application to be made. Upon reconsideration the Tribunal had considered the Caseload Document and its implications, but, having done so, had affirmed its original decisions.
Held: The Tribunal had erred in its decision not to admit the Caseload Document into evidence. Had the Tribunal not already done so, the EAT would have remitted the matter to the same Tribunal to consider the implications of the document. The Claimant’s counsel’s submission that there should still be a remittal, but to a differently constituted Tribunal, was not accepted. As the Tribunal had properly considered the significance of the Caseload Document, in its reconsideration decision, no remittal was required, and the appeal was simply dismissed.

Citations:

[2019] UKEAT 0277 – 17 – 2511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650905

The Claimant’s claim form, containing complaints of discrimination, was presented a little over two months out of time, assuming, in her favour, that she might be able to establish a continuing act in relation to all of the allegations that she raised.
The Employment Tribunal accepted that the Claimant genuinely, but erroneously, thought that, having told the ACAS EC officer about her complaints, and obtained an Early Conciliation Certificate, there was nothing else she needed to do to in order to present her claim. The Certificate was obtained at the end of December 2017, and the extended primary time limit expired on 30 January 2018. She approached the ACAS EC officer again in mid-February 2018, and only then, the Tribunal accepted, understood that she should also have submitted a claim form to the Employment Tribunal, and was now out of time to do so. It was also only when she later spoke to someone else in ACAS, that she appreciated that she could still seek to put in a late Employment Tribunal claim, and then finally did so.
The heart of the Tribunal’s decision concerned why the Claimant had not approached ACAS again until mid-February 2018, and whether she ought to have appreciated sooner that something might be wrong, and taken some further pro-active step. In that regard, the Claimant relied on the state of her mental health as relevant, and in particular, on a GP’s letter of June 2018. The Tribunal accepted that various personal circumstances, including bereavements, had had a significant impact, but did not consider that the GP’s letter showed that her mental health had had a material impact beyond mid-January 2018 at the latest.
The Tribunal had properly directed itself as to the law, and taken a careful and well-structured approach to its fact-finding and overall decision. The EAT should only intervene if the decision was, in some material sense, perverse. However, on a fair reading of the GP’s letter, it was not a proper conclusion that it offered the Tribunal no assistance at all on the state of the Claimant’s mental health beyond the period up to mid-January 2018. That conclusion had significantly affected the Tribunal’s decision, which therefore could not stand. The matter would be remitted for a re-hearing of the question of whether it was just and equitable to extend time. It would be important for the Tribunal, at the re-hearing, to have the benefit of sight of all the relevant contemporaneous medical evidence that might be available, whatever it might or might not show, in particular, the GP’s records, and not just the letter.

Citations:

[2019] UKEAT 0026 – 19 – 0111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650904

The Claimant was employed by the Respondent as a teacher. He was dismissed for the given reason of conduct. This concerned, principally, his admitted conduct in carrying out a request, made by a colleague, to give pupils taking an assessment exam, manuscript notes that she had prepared for them to follow.
The Tribunal found that the Claimant had, at the relevant time, a mental health disability. It was his case that this had impaired his judgment and decision-making. He claimed discrimination arising from disability and failure to comply with the duty of reasonable adjustment. He also claimed that he had been automatically unfairly dismissed for making protected disclosures about the extent of the malpractice, and, in any event, ordinarily unfairly dismissed.
The Tribunal found that the Claimant was disabled at the relevant time. However, it did not find that his conduct arose in consequence of his disability. In any event it considered that dismissal was a proportionate response, and it was not a failure of reasonable adjustment for the Respondent not to have imposed a lesser sanction. The unfair dismissal claims also failed. The Claimant appealed the dismissal of his Equality Act 2010 claims, and the decision on the ordinary unfair dismissal claim.
Held: The Tribunal had erred (1) in taking the wrong legal approach to whether the conduct for which the Claimant was dismissed arose in consequence of his disability; (2) in not applying the correct legal approach to the consideration, when applying the proportionality test, of the possibility of imposing a lesser sanction; (3) in relation to whether it would have been a reasonable adjustment to impose a lesser sanction, given the impact on that question of its other erroneous conclusions. Pnaiser v NHS England [2016] IRLR 170 and City of York Council v Grosset [2018] ICR 1492 applied.
The Tribunal did not err in dismissing the unfair dismissal claim. O’Brien v Bolton St Catherine’s Academy [2017] ICR 737 and City of York Council v Grosset (above) considered and applied.

Citations:

[2019] UKEAT 0031 – 19 – 3009

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650896

JURISDICTIONAL POINTS – Worker, employee or neither
PRACTICE AND PROCEDURE – Amendment
PRACTICE AND PROCEDURE – Application/claim
On the specific grounds of appeal put forward by the Appellant (the Claimant before the ET), the ET had not erred in refusing the application by the Claimant to add a second respondent to the claim when he did not have an ACAS Early Conciliation Certificate in respect of the proposed Second Respondent. The Claimant’s request to amend the grounds of appeal on the day of the hearing to widen the grounds of appeal was refused: paragraphs 3.5 and 3.12 of the PD applied and Khudados v Leggate [2005] IRLR 540 followed.
The Claimant had not established that the Tribunal’s written reasons had deviated from the oral extempore judgment and in any event as per The Partners of Haxby Practice v Collen [2012] UKEAT/0120/12/DM (Underhill P), and Ministry of Justice v Blackford [2018] IRLR 688 (Lady Wise), the written reasons prevailed over the oral reasons.
The Tribunal did not err in concluding that the Claimant had a contract of employment only with the proposed Second Respondent and that he did not have dual employment contract with two different employers (the First Respondent and proposed Second Respondent) for the same job and work. There was no reason to deviate from the principle that one person cannot have two employers in respect of the same employment on the facts of this case. The line of authorities from Laugher v Pointer (1826) 5 B and C 547 to Cairns v Visteon UK Ltd [2007] ICR 616 followed.

Citations:

[2019] UKEAT 0286 – 18 – 1309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650895

An Employment Tribunal (‘ET’) erred in finding that a one off error resulting in a failure to apply the redeployment period set out in the Sickness Absence and Monitoring Policy Management Guidance was capable, in law, of amounting to a PCP, for the purposes of section 20 of the EqA.
It also misapplied the test of reasonableness of an adjustment and failed to take into account relevant considerations. The question whether an adjustment is reasonable is one for a Tribunal to determine on an objective basis, and the ET erred in law in basing its findings on the Respondent’s act or omissions.
The Tribunal had failed to consider written submissions which had been before it. Had it considered those submissions, it was bound to determine that discounting the Claimant’s disability absence was not a reasonable adjustment. In accordance with Jafri v Lincoln College [2014] EWCA Civ 449 the EAT substituted is own finding, and dismissed the claim of failure to make reasonable adjustments.

Citations:

[2019] UKEAT 0248 – 18 – 2008

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650891

The Claimant worked as hospital porter. His duties included transporting anaesthetised patients to and from theatre. He was charged was assault to injury with intention to rape. The Respondent, having considered the matter, decided that the risk to its reputation of continuing to employ the Claimant where he had access to vulnerable patient was too great, particularly where charities are subject to greater scrutiny in relation to such matters. The Claimant was dismissed. The Employment Tribunal held that the dismissal was fair.
Held, dismissing the appeal, that the Tribunal had not erred in concluding that the dismissal fell within the band of reasonable responses. The Respondent’s belief that there would be a risk to reputation was genuinely held, it had conducted such investigation as was reasonable in the circumstances and the Tribunal was entitled to come to the conclusion that it did.

Citations:

[2019] UKEAT 0006 – 19 – 1509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650890

Harassment – The Claimant (‘C’) appealed against the decision of the Employment Tribunal (‘The ET’) to dismiss her claims for disability discrimination; unfair constructive dismissal and harassment. The premise of the ET’s findings on all three claims was that the Respondent (‘R’) had made full disclosure of the relevant and available documents to C in the course of its process to decide her grievance. The Employment Appeal Tribunal held that the ET’s findings on all three claims were wrong in law because the ET had not understood that such disclosure had not, on the evidence, been made to C.

Citations:

[2019] UKEAT 0093 – 19 – 0512

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650910

The Claimant was unfairly dismissed for redundancy. The Tribunal failed to order re-engagement after accepting the Respondent’s evidence that the Claimant was not the best person for an available job which he contented he could do. The Tribunal thought there was insufficient information to identify a job that he could do. The Tribunal assessed compensation by deducting gross mitigation earnings from the net sum that would have been earned had he not been dismissed and applied a 50 % Polkey reduction. The Claimant appealed.
Held, allowing the appeal, that the Tribunal failed to apply the provisions of s.116(3) of the Employment Rights Acts 1996, which required the Tribunal to take into account whether it was practicable for the Respondent to comply with the Order for re-engagement. In circumstances where there was some evidence that the Claimant could do the available role, albeit with some training, the fact that he may not have been, in the Respondent’s view, the best candidate for the role did not mean that it was not practicable for the Respondent to comply with the Order. By deducting gross mitigation earnings from net sum that would have been earned, the Tribunal assessed compensation on a basis that did not reflect the loss sustained, as required by section123 of the 1996 Act the Polkey deduction of 50 %, which was based merely on the fact on the fact that only two remained in the pool at the time the decision to dismiss, was taken, was inconsistent with the Tribunal’s clear finding that on an objective basis, the Claimant was the better candidate.
The matter would be remitted to the same Tribunal.

Citations:

[2020] UKEAT 0148 – 19 – 2801

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650589

UNFAIR DISMISSAL
An Employment Tribunal (‘ET’) did not err in law in permitting a hearing to proceed notwithstanding clear indications of illness on the part of a Claimant, who was adamant that the hearing should proceed. However, the ET erred in law in treating the procedural shortcomings which it identified as redeemed by the substantial merits of the case. A finding of unfair dismissal was substituted for the ET’s finding that the dismissal was fair, and the case was remitted for a hearing on remedy, to include contribution and Polkey issues.

Citations:

[2020] UKEAT 0205 – 19 – 1401

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650588

PRACTICE AND PROCEDURE – appearance/striking-out
The Claimant was represented by her husband, who is not legally qualified. They attended and participated in a Preliminary Hearing, at which an ET considered whether the Claimant’s claims had no, or little reasonable prospect of success, and allowed them to proceed without making a deposit order. The Claimant was notified of the substantive Hearing of her claims and was aware of the date of the Hearing, but failed to attend the Hearing, and failed to contact proactively the ET to explain that she could not attend; or to seek an adjournment.
Given the Claimant’s non-attendance, a clerk of the ET telephoned and spoke to the Claimant’s husband, who was identified as her representative. He informed the clerk that the couple’s son was ill; he was looking after the son; and his wife was at work but hoped to be at the ET in hour or two. He was informed that this was not satisfactory, and the ET dismissed the Claimant’s claims as she had failed, without good reason, to attend the ET Hearing.
The Claimant’s husband then wrote to the ET, which the ET treated as a reconsideration request, asserting that the couple had not attended because of the husband’s ill health and a refusal by a family friend, who had been due to babysit, to look after their son. The Claimant had attended work, as she had responsibility to take colleagues to work.
An EJ rejected the submissions as providing adequate explanations for the Claimant’s non-attendance, including why someone else could not have taken colleagues to work and the inconsistency of that explanation with the Claimant’s husband’s verbal explanation that the Claimant was at work; a previous failure to explain the family friend’s reluctance to look after the son; the failure by the husband or the Claimant to contact the ET; the lack of evidence that the husband was unable to look after the son, to permit the Claimant’s attendance; and on the Claimant’s explanation, a lack of satisfactory arrangements for her son to be looked after, about which the ET had been kept in ignorance. The EJ concluded that the Claimant had chosen not to attend the hearing.
In her appeal, which the Claimant subsequently sought to amend, the Claimant asserted that where an ET was in contact with a party which had failed to attend a hearing, it was bound to notify that party of the consequences of non-attendance and their ability to apply for a postponement. That proposition was rejected by (as she then was) Her Honour Judge Eady QC at a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, as it would place an undue burden on ET staff, where the obligation was on the Claimant to contact the ET if there were obstacles to her attendance.
Permission was granted to proceed with the remainder of the grounds, which were (1) that the ET had erred in concluding that no satisfactory childcare arrangements had been put in place, and it was wrong for the ET not to consider that there were unforeseen consequences preventing the Claimant’s attendance. (2) The ET and EJ had erred in concluding that the Claimant had made a conscious decision not to attend the ET Hearing, by placing undue weight on her attendance at work, when she had only attended to take colleagues. (3) The ET and EJ had placed impermissible weight on what had been reported to them by the ET clerk, when the Claimant’s husband had only provided verbal comments and there was no written record of the discussion. (4) The ET and EJ had failed to consider adjourning the Hearing, when the Claimant and her husband had attended the previous hearing.
Held: The ET and EJ were entitled to conclude that the Claimant had failed, without good reason, to attend the ET Hearing. Applying Transport for London v O’Cathail [2013] EWCA Civ 21, overall fairness to both parties is consistent with the overriding objective and the assessment of fairness must be made in the round. The Claimant had not been entitled to assume that because of her personal circumstances and the fact that her claims had not been struck out previously, or had deposit orders made in respect of them, the ET Hearing could not proceed in her absence. The Claimant had not been proactive or timely in her communications with the ET and EJ and had provided limited information to them, which the ET and EJ were entitled to treat as inconsistent and unsatisfactory. The EJ was entitled to conclude that the Claimant had chosen not to attend the ET Hearing and the ET and EJ were entitled to consider, and rely on, the verbal communications from the Claimant’s husband. In his reconsideration request, the EJ had considered all the factors relevant to whether the ET should have adjourned the Hearing.

Citations:

[2020] UKEAT 0088 – 19 – 1601

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.650590

Lord Johnston considered the approach to be taken under section 98A: ‘In seeking to resolve this matter, it is necessary to make two observations of a general nature. In the first place, when an industrial tribunal is addressing the question in the context of remedy, against a background of procedural unfairness, whether a fair procedure if it had been adopted would have achieved the same result, ie dismissal, the tribunal is always addressing itself to a hypothetical question since dismissal has in fact occurred. The role of the tribunal in this narrow context does not bear upon its general role to determine the reasonableness of dismissal, where it has been frequently said that the tribunal should not conduct what amounts to an independent investigation and reach its own conclusions. In this context, it must conduct an investigation by acceptable evidence to achieve an answer to the hypothetical question, and the only decision can be that of its own. Secondly, it is necessary in addressing this issue, assuming the tribunal determines that the evidence at least supports the position that dismissal would have occurred in any event, that the tribunal thereafter address that question as a matter of probability, to be assessed in percentage terms. In many cases, failure to address the secondary question of assessment of probable risk will render a tribunal’s approach flawed. However, if it does make an assessment upon the evidence, that is a question of fact which would rarely be interfered with by this tribunal.’

Judges:

Lord Johnston

Citations:

[1997] IRLR 568

Statutes:

Employment Rights Act 1996 98A(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.421330

The employee had been taken on on a trial, and was told that he must give one week’s notice or forfeit a week’s wage. He left without notice, and the employer withheld his wage.
Held: The deduction was unlawful unless the employee had agreed in writing beforehand.

Citations:

[1989] ICR 12

Statutes:

Wages Act 1986 1(1)

Jurisdiction:

England and Wales

Employment

Updated: 25 November 2022; Ref: scu.194826

The EAT discussed the need to focus on the seriousness of the employer’s default in complying with the mandatory obligation to consult employees before making redundancies: ‘The duties under the section are mandatory. It is not open to an employer, for this purpose, to argue, as would be open to him in defending a complaint of unfair dismissal by the individual employee, that consultation would, in the circumstances, be futile or utterly useless: see Polkey . . .’

Judges:

Judge Peter Clark

Citations:

[2002] IRLR 332

Jurisdiction:

England and Wales

Citing:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .

Cited by:

Approved – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.194622

A Share Option Scheme provided that the option could not be exercised if the option holder ceased to be an executive ‘for any reason’. The employer dismissed Mr Micklefield wrongfully, so that he ceased to be an employee before he was able to exercise his option. As a matter of construction there was no implied term which prevented the employers terminating the contract of employment wrongfully so as to prevent the Share Option being exercisable.

Judges:

John Mowbray QC

Citations:

[1990] IRLR 218

Jurisdiction:

England and Wales

Citing:

Considered – Thompson v Asda MFI Group Plc 1988
The court considered the implication of a term which would prevent an employer selling a subsidiary so that employees of the subsidiary who had rights under the group share option scheme ceased to be employees for the purpose of that agreement. It . .
Cited – Alghussein Establishment v Eton College HL 1985
A literal construction of the relevant provision of a lease would have led to an absurd result that a contractor who failed to complete a development without fault could not call for a lease, whereas a contractor who wilfully defaulted could do so. . .

Cited by:

Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.194867

The court considered a claim for maternity leave where the employee had failed to give the full notice required.

Citations:

[1983] ICR 533

Jurisdiction:

England and Wales

Cited by:

Cited – Kwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited CA 20-Jan-1998
Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.194004

Citations:

[2000] UKEAT 21 – 00 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.264910

Citations:

[2000] EAT 419 – 99 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.264967

Citations:

[2007] EWCA Civ 599, [2007] IRLR 781

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.253496

Definition of the phrase ‘work of a particular kind’.

Citations:

[1968] 3 ITR 385

Jurisdiction:

England and Wales

Cited by:

Cited – British Broadcasting Corporation v Farnworth EAT 13-Jul-1998
The claimant employee said that the non-renewal of her fixed term contract was not a redundancy as alleged.
Held: It could still be a redundancy situation when an employee is dismissed because the organisation requires an employee with more . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 November 2022; Ref: scu.214630

Citations:

[1996] UKEAT 637 – 95 – 2703

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.208252

Citations:

[2001] EWCA Civ 1664

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Griffin v Buckingham County Council EAT 8-May-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 November 2022; Ref: scu.201492

Citations:

[1997] UKEAT 982 – 97 – 2511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.207976

Citations:

[1997] UKEAT 249 – 97 – 1906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.207518

Citations:

[2001] EWCA Civ 1622

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.201370

Application for permission to appeal

Citations:

[2001] EWCA Civ 1558

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.201366

Citations:

[2001] EWCA Civ 851

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Asamoah-Boakye v Walter Rodney Housing Association Ltd EAT 14-Jul-2000
EAT Contract of Employment – Breach of Contract
EAT Contract of Employment – Breach of Contract. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 November 2022; Ref: scu.201023

EAT Unfair Dismissal – Contributory fault.

Judges:

Mr Recorder Luba QC

Citations:

[2003] EAT 0770 – 02 – 1706, [2003] UKEAT 0770 – 02 – 1706, EAT/770/02

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.191647

A person who undertakes work and employs several or many men to do, or to assist in doing, the work is not an artificer or workman for the purposes of the Truck Act which prohibited payment other than in the currency of the realm.

Citations:

[1848] 154 ER 405

Statutes:

Truck Act

Jurisdiction:

England and Wales

Cited by:

Cited – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 24 November 2022; Ref: scu.194280

Citations:

[2003] EWCA Civ 523

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.180724

Contract claim; Extension of Jurisdiction (Scotland) Order 1994.
1) Does a Claimant who makes an application for strike out under Rule 37(1) have the right, in terms of Rule 37(2), to insist upon that application being considered at an oral hearing in public?
2) Did the Tribunal, in any event, err in law (a) in directing that the Appellant’s application for strike out should be determined only on the basis of written submissions; and thereafter (b) in refusing to vary that case management direction?
3) Did the Tribunal err in law and / or fail to give adequate reasons for refusing the Appellant’s application to strike out the Respondent’s ET3?
4) Did the Tribunal err in law and / or fail to give adequate reasons for striking out the Appellant’s claim of damages for breach of contract?
All four questions were answered in the negative, and the Appeals were refused.

Citations:

[2020] UKEAT 0002 – 20 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.661669

Claim for declarations as to the interpretation of the definition of ‘the Index’ under the Rules of the Scheme, which is used for escalation of pensions in payment and various similar provisions, with the object of establishing that the defendants, who are the present Trustees of the Scheme, are obliged, or have the power, for the future either to change the relevant index from the Retail Prices Index (RPI) to the Consumer Prices Index (CPI) or Consumer Prices Index including Housing (CPIH), or, if they cannot change the Index itself, to make ‘adjustments’ to calculations using RPI that would achieve the same effect.

Judges:

HHJ David Cooke

Citations:

[2020] EWHC 1064 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.650766

CONTRACT OF EMPLOYMENT – Damages for breach of contract
UNFAIR DISMISSAL – Constructive dismissal
UNFAIR DISMISSAL – Compensation
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
The Appellant contended that the Employment Judge made a perverse finding regarding the Appellant’s conduct prior to dismissal (but which the Respondent only discovered after dismissal). The Appellant also argued that the Tribunal erred in reaching a conclusion that because of that conduct, no compensatory award and no basic award should be paid to him.
The appeal in respect of perversity was dismissed: the Judge made a legitimate finding of fact on the basis of the evidence presented to him and, read as a whole, set out the reasons for that findings within the Reasons.
However, the Judge failed to then go on to properly identify the issues relating to compensation which arose in respect of the basic award and the compensatory award. In consequence, he did not set out in the Reasons how and why, having regard to sections 122 and 123 of the Employment Rights Act 1996, he had reduced the basic award and compensatory award to nil. By agreement, the case was remitted to the same Employment Judge.

Citations:

[2018] UKEAT 0307 – 17 – 1409

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 November 2022; Ref: scu.631851

The claimant complaned as to the manner of his removal from a senior position in the Foreign and Commonwealth office.

Judges:

Cranston J

Citations:

[2013] EWHC 1098 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.495193

Citations:

[1979] IRLR 19

Jurisdiction:

England and Wales

Cited by:

Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.421329

The EAT considered a case of the dismissal for admitted, serious dishonesty concerning expenses by one of the directors of the Society, who held a position of considerable responsibility. The Industrial Tribunal found the dismissal was unfair because the employers had not carried out as much investigations as they thought appropriate into the employee’s claim that he had failed to claim for expenses to which he was entitled in an amount which, he said, exceeded that which was the basis of the employers’ case. The Society had thought their alleged ‘counterclaim’ was an irrelevance when considering the dishonesty admitted by this employee, a person in a position of seniority, trust and responsibility.
Held: The employer’s appeal succeeded. the Tribunal had reached a conclusion in the case at which no reasonable and properly directed Tribunal could have arrived at. A Tribunal ‘should not scrutinise the decision of a court line by line’ .
‘We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity’s and brevity’s sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an industrial tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well-established by the decisions of the Court of Appeal in Retarded Children’s Aid Society Ltd. v. Day [1978] I.C.R. 437 and in the recent decision in Varndell v. Kearney and Trecker Marwin Ltd [1983] I.C.R. 683.’

Judges:

Waite J

Citations:

[1984] IRLR 425, [1984] ICR 604

Jurisdiction:

England and Wales

Cited by:

Cited – John Lewis Plc v T L Coyne EAT 7-Dec-2000
An employee had been dismissed for making private telephone calls at work, against company policy. The dismissal had been based upon the general assessment that making such calls was dishonest.
Held: The employer’s appeal failed. The procedure . .
Cited – DPP Law Ltd v Greenberg CA 7-May-2021
Respect for ET judgment where prriciples set out
The respondent solicitor, had unlawfully accepted a payment of cash from the father of a criminal Legal Aid client. The firm now appealed from a finding that he had been unlawfully dismissed for gross misconduct.
Held: The appeal succeeded: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.375152

EAT TRANSFER OF UNDERTAKINGS: Transfer
Tribunal correct in their view that activities had substantially changed for the purposes of Regulation 3(1)(b)(ii) of the TUPE regulations.

Judges:

Ansell J

Citations:

[2009] UKEAT 0038 – 09 – 0408

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.375198

EAT UNFAIR DISMISSAL
Reasonableness of dismissal
The Employment Tribunal substituted its judgment for that of the management as to the seriousness of the Claimant’s conduct. The employer was entitled to rely on an earlier similar incident even though it did not result in a disciplinary sanction, because it alerted the Claimant to the conduct complained of. The Claimant was not unfairly dismissed.

Judges:

McMullen J

Citations:

[2010] UKEAT 0453 – 09 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Fuller v London Borough of Brent CA 15-Mar-2011
The employers had dismissed the employee for misconduct. The Tribunal found that the employers had a genuine belief in the misconduct alleged and there had been a reasonable investigation. The real issue was whether it was reasonable to dismiss for . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.410575

Citations:

[2000] UKEAT 1148 – 99 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.264694

Citations:

[2000] UKEAT 1474 – 99 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.264982

Judges:

Sir John Donaldson MR, Neill LJ, Balcombe LJ

Citations:

[1985] EWCA Civ 14, [1985] IRLR 393

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.262661

Important question under the statutory provisions about unfair dismissal.

Citations:

[1978] EWCA Civ 4, [1979] ICR 281, [1979] QB 546, [1979] 2 WLR 647, [1979] 2 All ER 112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.262695

Citations:

[1958] EWCA Civ 4, [1958] 1 WLR 1057, [1958] 3 All ER 220

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.262826

An employee’s duties and roll may evolve over time.

Citations:

[1971] 1 All ER 598

Jurisdiction:

England and Wales

Cited by:

Cited – Liffe Administration and Management v Pinkava and Another CA 15-Mar-2007
The employee had patented in the US a trading system he invented whilst employed by the defendant, who now sought ownership. He appealed a finding that the inventions had been made during the normal course of his employment. The employment contract . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.250561

Citations:

[2000] EWCA Civ 418

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.221693

Citations:

[1991] UKEAT 253 – 90 – 1010

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Euro-Diam Ltd v Bathurst CA 1988
The court had found that securities had been registered misleadingly in the US. The court held that it could not aid illegality. The court considered the defence of ‘ex turpi cause non oritur actio’. Kerr L.J: ‘The ex turpi causa defence ultimately . .

Cited by:

See Also – Sharma v The Hindu Temple EAT 15-Jan-1997
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.211296

Citations:

[1992] UKEAT 697 – 92 – 3011

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Sharma v Viva Video Club EAT 12-May-1993
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.211171

Citations:

[2001] UKEAT 1204 – 00 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 November 2022; Ref: scu.203747

Citations:

[1993] UKEAT 697 – 92 – 1205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sharma v Viva Video Club EAT 30-Nov-1992
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 November 2022; Ref: scu.210600