EAT Contract of employment – Implied term/ variation/ construction of term
Unfair dismissal – Procedural fairness/ automatically unfair dismissal
The decision of the Employment Tribunal that there was an implied mobility clause in the Claimant’s contract of employment was correct. The implication of such a term was both obvious and justified by custom and practice. The contracts of all other employees of the Respondent contained such a term, which had been agreed with relevant Trades Unions and the Claimant’s contract had been left partially blank and incomplete.
In the circumstances the decision of the Employment Tribunal dismissing the claim for unfair dismissal could not be faulted.
Categories 9K, 1 1E

Judges:

Serota QC J

Citations:

[2006] UKEAT 0242 – 06 – 1812

Links:

Bailii

Employment

Updated: 09 July 2022; Ref: scu.247878

EAT Unfair dismissal – Automatically unfair reasons
A procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance with the requirements of Schedule 2 to the Employment Act 2002.

Citations:

[2006] UKEAT 0368 – 06 – 2012

Links:

Bailii

Citing:

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

Employment

Updated: 09 July 2022; Ref: scu.247876

Contract of Employment – Implied term
Unlawful Deduction from Wages – Ready, Willing and Able to Work
The employee had been off work following allegations that she was bullied by her manager. An independent investigator rejected her claims. The employers proposed her return to work in accordance with an action plan suggested by the investigator, on the basis that she accepted the investigator’s conclusions. The employee refused to return on that basis. In order to avoid an impasse the employers proposed her temporary ‘redeployment’ to duties outside the express scope of the contract. When she refused to perform such duties they declined to continue to pay her wages. The issue was whether the employers were entitled to require her to perform the duties in question.
Held that the Tribunal was entitled to find that there was an implied term of the contract which entitled the employers to require her to do different work on a temporary basis and in the exceptional circumstances of the case. Millbrook Furnishing Industries Ltd v McIntosh [1981] IRLR 309 and Courtaulds Northern Spinning Ltd. v Sibson [1988] ICR 451.

Judges:

Underhill J

Citations:

[2006] UKEAT 0344 – 06 – 1512, [2007] IRLR 305

Links:

Bailii

Citing:

Cited – Courtaulds Northern Spinning Ltd v Sibson CA 1988
The employee driver had complained of a change in the base from which he was employed. The contract of employment was silent as to whether the employer had any right to transfer the employee from one depot to another, and the employer asked that a . .
Cited – Millbrook Furnishing Industries Ltd v McIntosh EAT 1981
The employees were sewing machinists employed in the employers’ upholstery factory. Because of a downturn in work, the employers decided to transfer them to their bedding factory, which was very nearby. The work at the bedding factory would be less . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247871

EAT Disability Discrimination – Reasonable adjustments,br />The EAT would follow the judgment of the EAT most recently upholding the British Gas line of authorities set out in Tarbuck. A Tribunal is under a duty to decide whether reasonable adjustments have been made irrespective of whether they were actually considered by an employer. The trigger point for a duty to arise is when the employee who is absent indicates that she will be returning to work. The Home Office v Collins applied. If adjustments will have no practical effect in mitigating the substantial effect on a disabled person of the atmosphere in which she works, there is unlikely to be any breach of the duty to make reasonable adjustments.

Citations:

[2006] UKEAT 0010 – 06 – 1512

Links:

Bailii

Employment

Updated: 09 July 2022; Ref: scu.247873

EAT Redundancy – Protective award
Employees who were faced with redundancy obtained protective awards because of lack of consultation on the part of the employer. They continued to work and to receive salary during the protected period. The Employer’s contention that that their earnings during this period went to diminish the amount payable under the protective award could not be justified under S190(4) of the Trade Union and Labour Relations (Consolidation) Act 1992.

Citations:

[2006] UKEAT 0222 – 06 – 2012

Links:

Bailii

Citing:

Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247865

EAT Contract of Employment – Written particulars
Novation of contract of employment. Effect of statutory statement of terms and conditions of employment.

Judges:

Peter Clark J

Citations:

[2006] UKEAT 0423 – 06 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 July 2022; Ref: scu.247866

EAT Race discrimination – Direct/ Victimisation
Challenge to decision of Tribunal on basis that reasoning perverse and/or inadequate – Challenge rejected.

Citations:

[2006] UKEAT 0201 – 06 – 1912

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Clarke v South Gloucestershire Council EAT 17-Oct-2006
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247863

EAT Unfair dismissal – Automatically unfair reasons
A procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance with the requirements of Schedule 2 to the Employment Act 2002.

Judges:

The Honourable Mr Justice Keith

Citations:

[2006] UKEAT 0368 – 06 – 2011, UKEAT/0368/06

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 09 July 2022; Ref: scu.247853

EAT Unfair dismissal – Reason for dismissal including substantial other reason
The Tribunal erred in law in finding that the Appellant had not established a substantial reason for dismissal. The Tribunal erred in law, and reached conclusions for which there was no evidence, in its consideration of the question whether it was reasonable to dismiss. The Tribunal did not make essential findings of fact for the purpose of considering contributory fault.

Judges:

Richardson HHJ

Citations:

[2006] UKEAT 0254 – 06 – 2811, UKEAT/0254/06 and UKEAT/0327/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247836

EAT Practice and Procedure – Time for appealing – The Employment Tribunal, instead of issuing a correction in respect of one error in its Judgment, withdrew the Reasons in their entirety and reissued them. Time ran in those circumstances from the fresh promulgation, or at least the Appellant (otherwise one day out of time) was entitled so to conclude. Urgent recommendation to ET Chairman, when making a correction, not to reissue the whole Judgment but to issue the relevant page(s) corrected, sensibly making clear that the original promulgation date still stands. If the ‘correction’ is so substantial as to merit withdrawal of the original Reasons, then it may amount to a Review under Rule 34(5).

Judges:

The Honourable Mr Justice Burton

Citations:

[2006] UKEAT 0537 – 06 – 1512, UKEATPA/0537/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247859

EAT Practice and Procedure – Review
Employers conceded liability for holiday pay under the Working Time Regulations at the Employment Tribunal. They did so on the basis that the decision of the EAT in List Design Group v Douglas [2002] ICR 636 gave the employee an entitlement with respect to three years’ holiday pay. A few days after the Tribunal decision, the Court of Appeal in Commissioner for Inland Revenue v Ainsworth and Anor. [2005] IRLR 465 held that the approach in List Design was wrong. The effect was to limit the period in respect of which unpaid holiday pay under the Regulations could be claimed. The employers immediately sought a review of the Tribunal’s decision on the grounds that it was in the interests of justice to review it. The Tribunal acceded to that application and reduced the compensation accordingly. It was not suggested by the employee that they should stay the matter pending the decision of the House of Lords. The employee also sought a review on the grounds that the Tribunal had not properly analysed her claims in a particular way. The Tribunal rejected this application. The employee appealed on the grounds that: the Tribunal should not have allowed the employer to withdraw from their concession; that in any event if minded to do so it should have stayed the proceedings pending the decision of the House of Lords in Ainsworth; and that it ought to have acceded to her application for a review. EAT dismissed the appeals and held that no error of law had been shown in the Tribunal’s decision.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0459 – 06 – 2811, UKEAT/0459/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247842

EAT Practice and Procedure – Amendment. – Tribunal refused an application to amend a disability discrimination claim made on the first day of the hearing of an anticipated four day case. The claimant claimed that the Tribunal had erred in law in so refusing. The EAT held that there had been no such error; the Tribunal had properly weighed up all relevant matters and had reached a decision which they were manifestly entitled to reach.

Judges:

Elias P J

Citations:

[2006] UKEAT 0505 – 06 – 2011, UKEAT/0505/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 09 July 2022; Ref: scu.247851

EAT Practice and Procedure – Striking-out/dismissal
Fourth occasion in which Claimant brought essentially the same claim against the Respondent. Chairman below refused to strike out claim. Decision reversed. Issue Estoppel – abuse of process.

Judges:

His Honour Judge Clark

Citations:

[2006] UKEAT 0502 – 06 – 2111, UKEAT/0502/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 09 July 2022; Ref: scu.247837

EAT Unfair Dismissal – Reasonableness of dismissal – The Tribunal erred in law by holding that the Claimant’s dismissal was unfair on grounds of disparity notwithstanding its findings that the decision to dismiss was reasonable substantively and procedurally and that dismissal was within the band of reasonable responses.
Race discrimination – Direct/ Burden of proof
The Tribunal erred in law by holding that the Claimant’s dismissal was tainted by unlawful discrimination because it was not satisfied with the Respondent’s explanation about disparity. On the Tribunal’s earlier findings, the dismissal was not on racial grounds.

Judges:

His Honour Judge Richardson

Citations:

[2006] UKEAT 0330 – 06 – 2311, UKEAT/0330/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 09 July 2022; Ref: scu.247848

EAT Practice and Procedure – 2002 Act and Pre-action requirements
There is no free-standing right to complain of a breach of the statutory procedures in the absence of a valid claim of unfair dismissal (here by a person with less than one year’s service).
The right to a statement of particulars of contractual terms under Employment Rights Act 1996 Part I is not one to which the procedures apply.

Judges:

His Honour Judge Mcmullen QC

Citations:

[2006] UKEAT 0273 – 06 – 1108, UKEAT/0273/06, [2007] ICR 348

Links:

Bailii, EAT

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 – Ward v Ashkenazi CA 2-Feb-2011
The claimant had been awarded damages after being found to have been unfairly dismissed for an automatically unfair reason in requesting written particulars of her employment. The EAT had awarded a 50% uplift for non-compliance with statutory . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247796

EAT Claimant found to have been unfairly dismissed in respect that when she was made redundant the respondents told her, in effect, not to bother applying for a new post that they were creating. The claimant did not, accordingly, apply for the post. The tribunal found that the chances of the claimant securing the post had she been fairly treated were 80%. The Respondents appealed against that finding on the grounds that it was perverse. The EAT upheld the appeal on that ground and substituted a finding that the chances of her securing the post were 20%.

Judges:

Lady Smith

Citations:

[2006] UKEAT 0011 – 06 – 1409, UKEATS/0011/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247801

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal
Unfair Dismissal – Contributory fault
The Appeal and the Cross-Appeal were allowed and the Judgment on liability and contribution were set aside and that the matter remitted to the same Employment Tribunal for rehearing.
Having found that the Respondent met the test for fairness in British Home Stores Ltd v Burchell [1978] IRLR 379 and was not in breach of the statutory procedures, the Employment Tribunal’s findings of unfair dismissal were set aside. The Employment Tribunal erred in relying on ACAS Code paragraph 15 relating to the Claimant’s entitlement to call witnesses when none had been identified to the Employment Tribunal or even to the EAT on appeal.
The Employment Tribunal erred, when reducing compensation by 90% on account of the Claimant’s conduct, since it relied on his failure to help himself at the disciplinary process by probing the Respondent’s case, when such argument had not been put by the Respondent and it was anyway contrary to British Steel Corporation v Williams, unreported EAT 776/82.
Further the Employment Tribunal did not rule on the Respondent’s submission that compensation be reduced for other reasons related to his conduct.
Both points remitted to the Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2006] UKEAT 0244 – 06 – 2009

Links:

Bailii

Employment

Updated: 09 July 2022; Ref: scu.247807

EAT Unfair dismissal – Reasonableness of dismissal; Procedural
Fairness/automatically unfair dismissal
Practice and Procedure – Amendment
Employment Tribunal’s conclusion of unfairness could not be criticised and was correct, especially as unappealed findings would make the dismissal unfair in any event by reason of the manager’s closed mind and failure to conduct proper investigations. Claimant wished to appeal internally but because he did not comply with Respondent’s policy requiring grounds to be submitted, it was refused. This is a breach of Step 3 and makes the dismissal automatically unfair under s 98A of the Employment Rights Act 1996. The Employment Tribunal refused an application to amend and add a new disability claim and its discretion was correctly exercised.

Judges:

His Honour Judge Mcmullen Qc

Citations:

[2006] UKEAT 0202 – 06 – 0708, UKEAT/0202/06

Links:

Bailii, EATn

Citing:

Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
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: 09 July 2022; Ref: scu.247794

EAT Equal Pay Act – Out of time
A hearing which was to be about whether the Claimant was to be warned as to costs and pay a deposit turned into a hearing as to a strike out. Apart from this procedural issue the EAT agreed with the Appellant that to strike out a case when there were a number of crucial issues of fact – which could only be resolved by an oral hearing – was inappropriate. The Appeal was allowed. The EAT did not consider it right to decide whether the Appellant should pay a deposit and he warned about costs but considered that was a matter which the Employment Tribunal should consider.

Judges:

Pugsley J

Citations:

[2006] UKEAT 0203 – 06 – 0509

Links:

Bailii

Employment

Updated: 09 July 2022; Ref: scu.247810

EAT Breach of contract. Whether a policy expressed not to be part of the contract had acquired contractual status. – Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

Pugsley J

Citations:

[2006] UKEAT 0245 – 06 – 1409, UKEAT/0245/06

Links:

Bailii, EATn

Employment

Updated: 09 July 2022; Ref: scu.247806

EAT Practice and Procedure – Compromise
1. On the true construction of a compromise agreement in respect of claims arising on the termination of the contract of employment, claims arising during the relationship and arising otherwise than on termination were not compromised. The agreement did not meet the industry standard for such model agreements.
2. Further the agreement missed out a condition required for a valid compromise under Sex Discrimination Act 1975 and Race Relations Act 1976 in that it did not say that all the conditions had been complied with (even though they had been).
3. Since the agreement was invalid, there was a grievance extant at the date of termination and the Claimant was not to be shut out of the Employment Tribunal for failing to lodge a grievance.

Judges:

McMullen QC J

Citations:

[2006] UKEAT 0185 – 06 – 0910

Links:

Bailii

Employment

Updated: 09 July 2022; Ref: scu.247825

Practice and Procedure – Perversity
Public Interest Disclosure
Allegation of apparent bias, after operation of paragraph 11 procedure, considered and dismissed. One ground out of lengthy Notice of Appeal permitted to go forward to full hearing (with a question posed to the Employment Tribunal for such purpose), namely whether the case of mala fides in respect of the otherwise protected disclosure found in respect of the Appellant was sufficiently put to her to deal with (cf Lucas v Chichester EAT/0713/04).

Judges:

Burton J

Citations:

[2006] UKEAT 0394 – 06 – 3110, UKEAT/0394/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 09 July 2022; Ref: scu.247828

EAT Unfair Dismissal – Constructive dismissal
The Employment Tribunal erred in applying the last straw doctrine of constructive unfair dismissal when, on affirmation of the contract by the Claimant following earlier breach, there was only one event to consider. This was the construction of a letter, and as a matter of law the contents could not amount to a breach of contract. The EAT substituted its Judgment for the Employment Tribunal’s and dismissed the unfair dismissal claim.

Judges:

His Honour Judge McMullen QC

Citations:

[2006] UKEAT 0371 – 06 – 1309, UKEAT/0371/06

Links:

Bailii, EAT

Citing:

Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247800

EAT Practice and Procedure – Case Management. – Case Management – restrictions in ambit of expert evidence – no error of law in Tribunal Chairman’s decision.

Judges:

is Honour Judge Richardson

Citations:

[2006] UKEAT 0513 – 06 – 1810, UKEAT/0513/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247823

EAT The tribunal had been correct in finding that as between the church and a pastor there had been an intention to enter into legal relations with sufficient characteristics of a contract of service.

Judges:

Ansell J

Citations:

[2006] UKEAT 0293 – 06 – 2710, UKEAT/0293/06, [2007] IRLR 178

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – President of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .

Cited by:

Appeal from – The New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247824

EAT Unfair Dismissal – Reasonableness of dismissal. – The Employment Tribunal did not err when, having found the Respondent passed the BHS test, it found that the dismissal of the Claimant was not within the band of responses of a reasonable employer. The Employment Tribunal did not impermissibly consider the views of the Headmaster and its Judgment was not perverse.

Judges:

His Honour Judge McMullen QC

Citations:

[2006] UKEAT 0259 – 06 – 1110, UKEAT/0259/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 09 July 2022; Ref: scu.247831

EAT Unfair Dismissal – Exclusions including worker/jurisdiction.
The Tribunal had awarded an obviously excessive sum of andpound;1420 for loss of statutory rights, without explanation of their reasons for doing so.
Held: The appeal was allowed and the case remitted back to the same tribunal for reconsideration of the matter.

Judges:

The Honourable Lady Smith

Citations:

[2006] UKEAT 0013 – 06 – 1209, UKEATS/0013/06

Links:

Bailii, EAT

Citing:

Cited – Hilti (Great Britain) Ltd v Windridge EAT 1974
EAT The employer appealed against the tribunal’s decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period.
Held: The award was upheld. Lord . .
Cited – Daley v AW Dorsett (Almar Dolls Ltd) EAT 1981
The loss of a right to an extended period of notice is a proper head of damages in an employment loss case: ‘It is a claim for compensation for the loss of an intangible benefit, namely that of being entitled in the course of one’s employment, to a . .
Cited – SH Muffett Ltd v Head EAT 1986
The Tribunal was asked to award damages for the loss of statutory protection and also loss of notice period, ‘what is generally referred to as the ‘loss of the right to long notice’ or, more particularly, it is the loss of a right in the event of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247809

EAT Unfair Dismissal – Reason for dismissal including substantial other reason. The Respondent dismissed the Claimant as she could not provide evidence of her lawful working status. The Employment Tribunal erred in holding that there was evidence of her having lawful status to work.

Judges:

His Honour Judge McMullen QC

Citations:

[2006] UKEAT 0325 – 06 – 0510, UKEAT/0325/06

Links:

Bailii, EAT

Cited by:

Appeal from – Klusova v London Borough of Hounslow CA 7-Nov-2007
Lord Justice Mummery said: ‘On the issue of ‘some other substantial reason’ for dismissal, I agree with the appeal tribunal. The employment tribunal erred in law in finding that the council did not genuinely believe that the continued employment of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247822

EAT Claim for unfair dismissal presented to tribunal outwith the three month time limit. The tribunal held that it was time barred, rejecting an argument recorded as being to the effect that the grievance provisions of the 2004 Regulations applied. On appeal, where it was submitted that the tribunal should have considered whether or not the dismissal procedure provisions of paragraph 15 of the 2004 Regulations should have applied so as to extend the time limit, the EAT held that it was not incumbent on the tribunal to have considered them but even if it had been, the outcome would have been the same since there were no reasonable grounds on which the claimant could have believed that a dismissal procedure was still being followed when the three months expired.

Judges:

The Honourable Lady Smith

Citations:

[2006] UKEAT 0017 – 06 – 1309, UKEATS/0017/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247808

EAT The claimant was dismissed and presented a claim for unfair dismissal. In his ET1, he asserted a belief that he had been dismissed because of his assertion of a statutory right. The form referred to the respondents having tried to have the claimant work in excess of 48 hours per week. At the time of his dismissal, he had been in the employment of the respondents for less than twelve months. At a pre-hearing review, the tribunal found that the claimant had declined to work more hours because he felt he was already working enough hours in that he was already working in excess of 48 hours per week. It held that, in those circumstances, it was not properly being contended that the dismissal was attributable to the assertion by him of a statutory right. That being so, since the claimant did not have the requisite year’s service, the tribunal had no jurisdiction. The EAT upheld an appeal against that decision in respect that the tribunal had asked itself the wrong question; the claimant’s case appeared to be that the respondents proposed to require him to comply with a requirement to work in excess of 48 hours per week, in contravention of the Working Time Regulations 1998. That being so, the one year qualification was disapplied by s.108(3)(dd) of the Employment Rights Act 1996.

Judges:

Lady Smith

Citations:

2007] IRLR 14, [2006] UKEAT 0019 – 06 – 1509, UKEATS/0019/06

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 108

Employment

Updated: 09 July 2022; Ref: scu.247805

EAT Unlawful Deduction from Wages – (no sub-topic). Practice and Procedure – Withdrawal
Practice and Procedure – Absence of party
Appellant had paid a claim to the Applicant after an agreement with the Applicant. He did not complete the ET3 because he considered the matter settled. ET not contacted by the Applicant for claim to be withdrawn. Judge Reid QC required them to see affidavit by Appellant rectifying matters. The Applicant Respondent did not appear. Appeal allowed as Applicant already received sum he agreed was owing. Appeal allowed.

Judges:

His Honour Judge Pugsley

Citations:

[2006] UKEAT 0256 – 06 – 0809, UKEAT/0256/06

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247804

EAT Time bar. Whether separate time bar for claim against fellow employee respondent. Employment Tribunal found there was not but the Employment Appeal Tribunal disagreed. The claims were separate and the extension provisions of regulation 15 of the 2004 regulations did not apply in the case of the claim against the fellow employee. Grievance letter. Whether adequate notice of disability discrimination claim. Circumstances in which tribunal erred in their assessment of the letter as not giving such notice.

Judges:

Lady Smith

Citations:

[2006] UKEAT 0022 – 06 – 1808, UKEATS/0022/06 and UKEATS/0023/0

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247792

EAT The dismissal for redundancy was, in general terms, clearly procedurally unfair; but the Tribunal found that section 98A(1) did not apply while section 98A(2) did; and on the basis of section 98A(2) the employers would probably have dismissed anyway, with the effect that the dismissal was, as a result, not unfair. Held that section 98A(1) and (2) applied or did not apply together, that the transitional provisions in Regulation 18 of the Dispute Regulations applied to section 98A(1) – because that subsection is dependant on the applicability of the statutory procedures – and that, because dismissal was first contemplated before 1.10.04, neither subsection applied; the dismissal was procedurally unfair. Remitted to assess compensation.

Judges:

Burke QC J

Citations:

[2006] UKEAT 0214 – 06 – 2306

Links:

Bailii

Employment

Updated: 09 July 2022; Ref: scu.247784

Eat The claimant came from Aberdeen. He had been employed by Ben Line Steamers and his employment was transferred, ultimately, to the respondents, a company registered in Singapore. The respondents were a subsidiary of a Swedish company. From a date in 1998 until his dismissal, the claimant worked as a storeman on a rig situated in far eastern waters. The operations of the rig were controlled by a UK company which was based in Aberdeen. From a date in 1999 until his dismissal, the claimant resided in Thailand. He returned to Scotland after that. The day to day management of the rig was carried out by an employee of the respondents who reported to another employee of the respondents based onshore in the Far East. Logistical, training, rota management and similar support was provided by another company based in Scotland, with which the respondents had a contract. The tribunal found, taking account of the decision of the Court of Appeal in Lawson v Serco that it did not have jurisdiction; it determined that the claimant’s place of employment was not within Great Britain as that was not where he carried out his work. On appeal, the Employment Appeal Tribunal, after having considered the decision of the House of Lords in Lawson v Serco, upheld the tribunal’s finding of no jurisdiction.

Judges:

Honourable Lady Smith

Citations:

[2006] UKEAT 0080 – 04 – 1708, UKEATS/0080/04

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247789

EAT Unlawful Deduction from Wages – Exclusions,br />Informal hearing leading to concession by unrepresented Respondent which may have resulted from erroneous representation by Chairman. Failure to appreciate effect of s.212 ERA.

Judges:

His Honour Judge Serota

Citations:

[2006] UKEAT 0032 – 06 – 1407, UKEAT/0032/06

Links:

Bailii, EAT

Cited by:

See Also – Kennaugh v Lloyd-Jones (T/A Cheshire Tree Surgeons) EAT 18-Jul-2008
EAT UNFAIR DISMISSAL: Exclusions including worker/jurisdiction
Continuity of employment – correct question to be asked under s212(3)(a) Employment Rights Act. Capability to do the job for which he was . .
See Also – Kennaugh v Jones EAT 1-Oct-2009
EAT UNFAIR DISMISSAL
Constructive dismissal
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Whether the Claimant was constructively dismissed by the Respondent. Questions to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 July 2022; Ref: scu.247786

EAT Trade Union Membership
A Solicitor’s letter before action sent on behalf of a Union demanding costs and undertaking was not a ‘determination’ under Section 64 Trade Union and Labour Relations Act.

Citations:

[2006] UKEAT 0219 – 06 – 1108, UKEAT/0219/06, [2007] ICR 341

Links:

Bailii, EAT

Employment

Updated: 09 July 2022; Ref: scu.247791

The appellant school ICT teacher had hacked into the school’s computer system, in order, he said, to demonstrate its weakness. He appealed against rejection of his assertion that his dismissal was unfair for being caused by his protected disclosure. The EAT had found his dismissal not to have been from the protected disclosure, but from the hacking, and remitted the case.
Held: The employee’s appeal failed. What happened was not a disclosure: ‘The legislation uses a common word, ‘disclosure’, and sets out in some detail the circumstances in which that disclosure will or will not be protected. There is no reason to think that Parliament intended to add to that machinery by introducing some special meaning of the word disclosure.’ . . And ‘the warning was given for Mr Evans’s irresponsible conduct, and not for telling his employers, by whatever means, that their system was insecure. ‘

Judges:

Buxton, Lantham, Longmore LJJ

Citations:

[2006] EWCA Civ 1653, [2007] IRLR 140, [2007] ICR 641

Links:

Bailii

Statutes:

Employment Rights Act 1996 43A

Jurisdiction:

England and Wales

Citing:

At EAT – Bolton School v Evans EAT 7-Feb-2006
EAT Public Interest Disclosure – Protected Disclosure. Employee deliberately broke into computer system to show that his concerns that information might be obtained in breach of the Data Protection Act was . .
Leave – Bolton School v Evans CA 9-May-2006
The claimant had been employed as an IT teacher. He was disciplined for testing the school’s computer system and revealing that it was open to abuse by hackers. He complained that this had been a qualifying protected disclosure under the 1996 Act. . .

Cited by:

Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 July 2022; Ref: scu.246989

EU Appeal – Community official – Transfer of pension rights – Calculation of additional pensionable service – Equality of treatment.

Judges:

Advocate General Jacob

Citations:

C-227/04, [2006] EUECJ C-227/04 – O

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Opinion – Lindorfer v Council (Staff Regulations) C-227/04 ECJ 11-Sep-2007
Appeal Officials Transfer of pension rights – Professional activities prior to entering the service of the Communities – Calculation of the years of pensionable service Article 11(2) of Annex VIII to the Staff Regulations General implementing . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 July 2022; Ref: scu.246851

Preliminary hearing an appeal of Mr A. Reilly against Argos Distributors Ltd.

Citations:

[1997] UKEAT 613 – 97 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.208045

Citations:

[2001] EWCA Civ 676

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.201070

Renewed applications for permission to appeal and for an extension of time. Employer’s claim against two former employees alleging misuse of private information.

Citations:

[2001] EWCA Civ 48

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.200777

Enforcement of order for re-engagement.
Held: An ‘order for re-engagement’ did not impose an absolute obligation to re-engage the employee, or a correlative right in the employee to be re-engaged. Rather, it was a situation in which the employer had either to re-engage the employee or become liable for the awards specified by section 117(3), which included an additional award.

Judges:

Underhill, Rafferty, Flaux LJJ

Citations:

[2019] EWCA Civ 1060, [2019] WLR(D) 340

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.638821

By Regulation 8(9) of the Part Time Workers Regulations (‘the PTWR’) 2000 an Employment Tribunal awards compensation which they consider just and equitable having regard to the infringement to which the complaint related and to any loss attributable to the infringement having regard to the pro rata principle except where it is inappropriate to do so. The Employment Judge did not err in holding that the computation of loss by the Respondent which was based on the pension of Vice-Presidents in the Residential Property Tribunal Service (‘RPTS’) where the Claimant was a part time fee paid legally qualified Chair represented the loss suffered by the Claimant rather than compensation based on the different pension paid under the different scheme of which his full time Tax judge comparator was a member. The Employment Judge did not err in failing to apply the pro rata principle to a pension scheme which did not form the basis for calculating loss.
The Employment Judge did not err in holding that the Tribunal did not have jurisdiction under the PTWR to determine whether the Claimant had an entitlement to a JUPRA pension from 7 April 2000 by reason of the Judicial Pensions (Fee-Paid Judges) Regulation 2017 or to take these into account when awarding compensation. Appeals from the Remedy Judgment and the Declaration dismissed.

Citations:

[2019] UKEAT 0279 – 18 – 1306

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.638497

Jurisdictional Points : Extension of Time: just and equitable
The Claimant had lodged his claims of unfair and wrongly dismissal and of disability discrimination out of time. The ET had decided that time should b3e extended, having found that the Claimant, because of his particular vulnerabilities, had reasonably handed the claim to his brother to deal with and that his brother had genuinely believed that the date of dismissal was when the Claimant’s brother’s mistaken view was reasonable given the unclear nature of the Respondent’s letter. If found that it had not been reasonable period thereafter. It further found that it would be just and equitable to extend time, there being no prejudice to the Respondent in doing so.
The Respondent appealed
Held: dismissing the appeal
The ET has applied the correct legal tests. It had made a finding as to the Claimant’s brother’s genuine subjective but had then gone on to determine that this was objective reasonable given the lack of clarity in the Respondent’s letter. It could not be said that finding was perverse. Once the ET had found that the impediment to the in-0time presentation of the Claimant’s claim arose from the reasonable misunderstanding as to the date of dismissal, the other objections taken by the Respondent fell away. This was not a misunderstanding of law but of fact and the mistaken belief as to when time stared to run meant that further researches as to the operation of the time limit would not have assisted. As for the discrimination claim, a broader test applied. The ET was not bound to require the Claimant to demonstrate a good explanation for his delay but, in any event, had found that he had explained the position. It was entitled to focus on the question of comparative prejudice. The conclusion reached disclosed no error of law.

Citations:

[2019] UKEAT 0277 – 18 – 2503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.638492

Claimant’s failure initially to seek payment of unused holiday entitlement

Citations:

[2019] UKEAT 0015 – 18 – 3004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.638493

Citations:

[2019] EWCA Civ 947

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.638157

Citations:

[2009] EWHC 1877 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.368634

EAT Unfair Dismissal – Reasonableness of dismissal
Unfair Dismissal – Contributory fault
Conduct UD. ET substituted their view for that of employer in holding no reasonable investigation and dismissal sanction unreasonable. Whole matter (including contribution if it arises) remitted to fresh ET for rehearing.

Judges:

His Honour Judge Peter Clark

Citations:

[2006] UKEAT 0372 – 06 – 0610, UKEAT/0372/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 July 2022; Ref: scu.247826

The employee was an engineer. She worked on field assessments and in the manufacture and adaptation of equipment. She was suspended for alleged bullying and harassment and given a final written warning. It was proposed that she should be relocated to another office, but she refused. She was told that she had resigned. The Tribunal found an unfair dismissal. A reasonable employer would not have insisted on the transfer, but there was 25% contributory fault. Further if they had tried to make it work, it would have lasted only about six months. Compensation was limited on that basis. The EAT held that there was no proper basis for concluding that the employment would be limited to six months in the future, it was ‘a highly speculative matter’, and this demonstrated that it had ‘launched upon a sea of speculation’ which is precisely what King v Eaton and subsequent authorities show that it should not do. The compensation should have been assessed on the assumption that the post would last indefinitely.
Held: The employer’s appeal succeeded. There was a body of evidence capable of justifying the Tribunal’s conclusion and they were in principle right to assess the loss in the way they had done. On the facts of this case the court held that the reasoning of the Tribunal was opaque and it was impossible to be clear why they had fixed on a period of 6 months. That was in principle a justifiable conclusion, but it was not clear how that figure had been arrived at. Accordingly, the case was remitted.
Pill LJ said that appellate courts should be wary of interfering with the Employment Tribunal’s conclusions on this matter of judgment. As to the criticism that the Tribunal had been improperly speculating: ‘The EAT appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal’s statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation.’

Judges:

Pill LJ, Laws LJ, Gage LJ

Citations:

[2006] EWCA Civ 1600, [2007] IRLR 155, [2007] ICR 236

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Carole Thornett v Scope EAT 7-Feb-2006
EAT Unfair Dismissal: Compensation
Compensation for unfair dismissal was capped at 6 months’ forward losses on the ground that the Claimant would have been dismissed at that stage. Since the parties could . .
Cited – Moeliker v Reyrolle and Co Ltd CA 1976
The court considered the principles for the award of damages for future loss of earning capacity.
Held: The court distinguished between an award for loss of earnings and compensation for loss of earning capacity. The latter head of damage . .

Cited by:

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 – 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 . .
Cited – Cumbria County Council and Another v Bates EAT 13-Aug-2013
cumbria_batesEAT2013
EAT UNFAIR DISMISSAL – Compensation
The Claimant was employed by the First Respondent as a teacher at Dowdales School. He was found to have been unfairly dismissed. Post dismissal he was convicted of common . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 July 2022; Ref: scu.246727

Application for leave to appeal.

Judges:

Rix LJ

Citations:

[2006] EWCA Civ 1542

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 08 July 2022; Ref: scu.246070