Category: Employment

Draper v Mears Ltd: EAT 5 Sep 2006

EAT The employee was found in a company van about to drive after consuming alcohol. The Tribunal found that to his knowledge, the company had a zero tolerance rule as to driving after consuming alcohol. He was dismissed for misconduct, principally on the basis of his breach of that rule. His unfair dismissal claim was rejected.

Judges:

His Honour Judge Burke QC

Citations:

[2006] UKEAT 0174 – 06 – 0509, UKEAT/0174/06

Links:

Bailii, EAT

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 – 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 – Clyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.245008

Lake v British Transport Police: EAT 8 Sep 2006

EAT The Claimant was a serving Police Constable. He was dismissed for disciplinary reasons after a hearing before the Police Disciplinary Board which ordered his dismissal. He appealed to the Chief Constable who upheld the decision of the Police Disciplinary Board. The Claimant then began proceedings in the Employment Tribunal asserting that he had been dismissed for a reason that was automatically unfair [‘whistleblowing’]. The Respondent argued that the proceedings sought to impugn the decision of the Police Complaints Board which was on the authority of Heath v Commissioner of Police for the Metropolis 2005 ICR 329 a quasi judicial body whose decisions were immune from suit. The Chairman of the Employment Tribunal upheld the submission but permitted the Claimant to proceed with those parts of his claim that related to the decision to bring disciplinary charges against the Claimant and the decision of the Chief Constable to dismiss him. The EAT held that the proceedings of the Police Complaints Board, including its decision were immune from suit because it was quasi-judicial body and that then enactment of S37(1) of the Police Reform Act 2002 did not affect this immunity in the case of an alleged ‘whistleblower’.

Judges:

Serota QC

Citations:

[2006] UKEAT 0154 – 06 – 0809

Links:

Bailii

Employment

Updated: 07 July 2022; Ref: scu.245009

Beales v Secretary of State for Work and Pensions: EAT 18 Sep 2006

EAT The Claimant claimed that she was disabled within the meaning of the Disability Discrimination Act 1995. She claimed she was suffering from carpal tunnel syndrome, which was accepted. She also complained she was suffering from a mental impairment, i.e ‘stress’. Before the Employment Tribunal she failed to adduce any medical evidence beyond certain brief Occupational Health reports, despite being offered an adjournment to enable her to have the opportunity to so. The Chairman, who sat alone found on the evidence that she had not shown she had suffered substantial and long-term effects on her ability to carry out her normal day to activities. He was also not satisfied on the evidence that she suffered from a clinically recognised mental illness. The EAT held that the decision of the Chairman was one he was entitled to come to on the facts and evidence before him. In relation to mental illness a Claimant must do more than claim to be suffering from a generic condition such as ‘stress’ but must go further and produce some evidence, preferably medical evidence, as to a particular condition from which he or she may be said to suffer.

Judges:

Serota QC J

Citations:

[2006] UKEAT 0602 – 05 – 1809, UKEAT/0602/05

Links:

Bailii, EAT

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.245020

Prakash v Wolverhampton City Council: EAT 1 Sep 2006

EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He appealed but the appeal was heard after the date when the contract would have expired by effluxion of time. The appeal was allowed. The Claimant maintained that the effect of the successful appeal was to extend the contract beyond the date when it would have expired. The ET rejected this submission and refused permission to amend the Claim Form so as to allege that the dismissal occurred subsequent to the appeal hearing. The EAT held:
a. Where an employee on a fixed term contract is dismissed prior to the expiry of the fixed term, but on appeal overturns the dismissal, the appeal does no more than reinstate the original fixed term contract. If the appeal takes place after the expiration of the original fixed term, the successful appeal does not, without more, have the effect of extending the fixed term contract beyond the date when it would expire according to its terms.
b. An ET has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principles set out in Selkent Bus Company v Moore [1996] IRLR 661.

Judges:

Serota QC

Citations:

[2006] UKEAT 0140 – 06 – 0109, UKEAT/0140/06

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 111(2), Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 3

Jurisdiction:

England and Wales

Citing:

Cited – Selkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .
Cited – London Probation Board v Kirkpatrick EAT 7-Jan-2005
EAT Unfair Dismissal
When an employee is dismissed and then reinstated on an internal appeal it is open to the parties to agree reinstatement as a matter of contract and such an arrangement albeit made . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – British Medical Association v Chaudhary CA 15-May-2003
The claimant had sought registration as a specialist medical practitioner by the respondent. His complaint that the crtiria used to reject his claim were discriminatory had been rejected by the employment tribunal and EAT on the basis that they had . .
Cited – Roberts v West Coast Trains Ltd CA 16-Jun-2004
The employee had been dismissed. He began a claim for unfair dismissal, but also appealed within his employers’ procedure, accepting a demotion. The tribunal then found that he had not been dismissed.
Held: There had been no dismissal. Had he . .
Cited – Savage v J Sainsbury Ltd CA 1980
Brightman LJ discussed the effect on time requirements of an employee’s appeal against the employers decision to dismiss him: ‘The matter came before the Employment Appeal Tribunal with commendable expedition on 4.10.78. Judgment was reserved until . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .

Cited by:

Cited – Odoemelam v Whittington Hospital NHS Trust EAT 6-Feb-2007
EAT Statutory grievance procedures
Need for grievance to identify that complaint is one of racial discrimination – application to claims against employees as well as to claims against their employers. . .
Cited – Mackay v Hanna (T/A Blakes Newsagents) EAT 20-Jun-2007
EAT Practice and Procedure – Amendment / 2002 Act and Pre-action Requirements
Where a claim form is issued prematurely by reason of failure to comply with Section 32(2) of the Employment Act 2002 an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.245010

Her Majesty’s Attorney General v Deman: EAT 1 Sep 2006

EAT Practice and Procedure: Restriction of Proceedings Order/Vexatious Litigant
Litigant had brought forty claims for (mainly) race discrimination against higher education institutions, trade unions and others and had made over forty appeals to EAT and been repeatedly criticised for way in which those proceedings and appeals had been conducted.
Held: To have habitually and persistently instituted vexatious ‘proceedings’ (held to cover both the institution of the initial proceedings and the institution of the appeals) and to have habitually and persistently made vexatious applications in the course of those proceedings within the meaning of s. 33 (1) (a) and (b) of the Employment Tribunals Act 1996 – Restriction of proceedings order made

Judges:

Underhill J

Citations:

[2006] UKEAT 0113 – 06 – 0109, UKEAT/0113/06

Links:

Bailii, EAT

Statutes:

Employment Tribunals Act 1996 33

Employment

Updated: 07 July 2022; Ref: scu.244807

East Lancashire Coachbuilders v Hilton: EAT 24 Aug 2006

EAT The Claimant, a director of the Respondent, was dismissed for gross misconduct. There were grounds upon which the Respondent could reasonably have treated his conduct as justifying immediate dismissal for a fair reason within the meaning of section 98 of the Employment Rights Act 1996. However the ET found that the true reason for dismissal was not the Claimant’s misconduct but that the Respondent’s other directors wanted him dismissed for reasons not related to his misconduct. In the circumstances the dismissal was unfair because the Respondent had not shown the dismissal was for a fair reason. ASLEF v Brady UKEAT/0057, and 0130/06 applied.

Judges:

His Honour Judge Serota

Citations:

[2006] UKEAT 0054 – 06 – 2408, UKEAT/0054/06

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 98

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: 07 July 2022; Ref: scu.244752

Scottish Shellfish Marketing Group Ltd v Connelly: EAT 7 Jul 2006

EAT The claimant was dismissed on the basis of a medical report which found that he was unfit to return to work. The tribunal found that the respondents should not have relied on the report as it was prepared on the basis of an erroneous view as to his job content. They concluded that that erroneous view must have come from a communication to its author from the respondents. The EAT held that the decision of the tribunal was perverse; that conclusion was central to their decision but was not open to them. They should, also, have granted the respondents’ application for review.

Judges:

The Honourable Lady Smith

Citations:

[2006] UKEAT 0008 – 06 – 0707, [2006] UKEAT 0082 – 05 – 0707

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 July 2022; Ref: scu.244569

The Print Factory (London) 1991 Ltd v Millam: EAT 1 Aug 2006

EAT Was there a transfer of an undertaking when company A acquired the shares in company B and then ran it so as to facilitate the interrelationship of the two companies to their mutual benefit? The Employment Tribunal held that there was; there was more than a simple share sale. The new controllers had effectively brought the two operations under one umbrella. Accordingly, the employer had changed notwithstanding that there had been no formal transfer of the business. The EAT upheld the appeal on the basis that mere control by the holding company does not amount to a transfer of the business; and that the approach of the Tribunal impermissibly involved lifting the corporate veil in circumstances where the two businesses remained separate as a matter of law, and the relationship of holding and subsidiary company was not a mere sham.

Judges:

Elias J P

Citations:

[2006] UKEAT 0253 – 06 – 0108

Links:

Bailii

Employment

Updated: 07 July 2022; Ref: scu.244571

Ezsias v North Glamorgan NHS Trust: EAT 25 Jul 2006

EAT Employment Tribunal struck out unfair dismissal claims stating they were bound to fail. The employers had made two applications, one for a deposit to be ordered pursuant to rule 20 of the Employment Tribunal rules, and the second for a strike-out pursuant to rule 18(7)(b) on the grounds that the appeal had no reasonable prospect of success. At the first hearing only the rule 20 application was formally before the Tribunal because no notice had by then been given in relation to the rule 18 matter. In fact the Tribunal concluded that the claim was bound to fail, but fixed a second hearing to consider the question of strike-out and also the means of the claimant. Means had to be considered before any deposit was ordered. At the second hearing an order to strike-out all the claims was granted. The claimant alleged that the Chairman had come to the second hearing have prejudged the issue, given her trenchant comments at the first hearing, and that in any event there were fundamental factual disputes which made the strike-out wholly inappropriate. The EAT upheld the appeal on both grounds.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0705 – 05 – 2507, UKEAT/0612/05, UKEAT/0705/05, [2007] ICR 1126

Links:

Bailii, EAT

Citing:

Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .

Cited by:

Appeal from – Ezsias v North Glamorgan NHS Trust CA 7-Mar-2007
The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT.
Held: A claim should not be struck out where, as here, there were facts . .
See Also – Ezsias v The Welsh Ministers QBD 23-Nov-2007
The Claimant claimed under Section 7(9) of the 1998 Act for failures to disclose data to him following several requests. He sought (i) a declaration that the National Assembly had failed to comply with their obligations under the 1998 Act, (ii) . .
See Also – Ezsias v Welsh Ministers CA 24-Jun-2008
Renewed application for leave to appeal against orders making a limited declaration that there were certain breaches on the defendant’s part of their obligations under the Data Protection Act 1998 in that they did not disclose all disclosable . .
See Also – Ezsias v North Glamorgan NHS Trust EAT 18-Mar-2011
EAT CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
(1) An employee who has been dismissed because of the . .
Applied – Pillay v Inc Research UK Ltd EAT 9-Sep-2011
EAT (Practice and Procedure : Striking-Out or Dismissal) The Employment Judge ought not to have struck out the Claimant’s claim for unfair dismissal under section 103A of the Employment Rights Act 1996. Ezsias v . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.244568

Quigley v University of St Andrews: EAT 9 Aug 2006

EAT The claimant, a university lecturer, claimed that he had been unfairly constructively dismissed. The tribunal held that the university had acted reasonably throughout the period of his employment, that they had not breached his contract in any respect and that he had not, in any event, resigned due to what he perceived to be their breach of contract. The EAT dismissed an appeal based on grounds that they had misapplied and misunderstood the test for constructive dismissal, that they ought to have applied the principle in Peyman v Lanjani [1985] C.L. 457, that their decision was perverse and that they had failed to take account of relevant evidence. Observations made to the effect that Peyman did not apply in the employment law field.

Judges:

The Honourable Lady Smith

Citations:

[2006] UKEAT 0025 – 05 – 0908, UKEATS/0025/05/RN

Links:

Bailii, EATn

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

Employment

Updated: 07 July 2022; Ref: scu.244572

Babula v Waltham Forest College: CA 21 Jul 2006

Renewed application for permission to appeal.

Judges:

Buxton LJ, Maurice Kay LJ

Citations:

[2006] EWCA Civ 1154

Links:

Bailii

Statutes:

Employment Rights Act 1996 47B

Jurisdiction:

England and Wales

Citing:

Cited – Kraus v Penna Plc and Another EAT 20-Nov-2003
The claimant said that his dismissal was automatically unfair on the basis that he had made a qualifying disclosure.
Held: ‘the worker’s reasonable belief in s.43B(1) relates to the information which he is disclosing and not to the existence . .
Cited – Babula v Waltham Forest College CA 7-Mar-2007
The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. . .
Appeal from – Babula v Waltham Forest College EAT 31-Mar-2006
EAT Public Interest Disclosure . .

Cited by:

Cited – Babula v Waltham Forest College CA 7-Mar-2007
The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. . .
Leave – Babula v Waltham Forest College CA 7-Mar-2007
The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.244461

Fernandez v The Office of the Parliamentary Commissioner for Administration and Another: EAT 28 Jul 2006

EAT Discrimination – burden of proof – whether Bahl v Law Society still good law – significance of first tribunal’s findings on unfair dismissal claim when second tribunal conducted discrimination hearing following remission by EAT.

Citations:

[2006] UKEAT 0180 – 06 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – J Fernandez v The Office of the Parliamentary Commissioner for Administration and the Health Service Commissioner EAT 20-Jul-2006
EAT Race Discrimination – Direct . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Cited by:

Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.244142

NSM Music Ltd v Leefe: EAT 20 Jun 2006

EAT Unfair Dismissal – Polkey deduction
Appeal on basis that Chairman failed to consider whether a Polkey deduction was appropriate in a failure to consult redundancy unfair dismissal. Respondent had been debarred from taking part after late ET3 and Rule 9 decision. Need for care by Tribunals in such circumstances. Appeal on this ground successful. Other grounds alleging insufficient evidence and/or inadequate reasoning all dismissed.

Judges:

Cox J

Citations:

[2006] UKEAT 0663 – 05 – 2006, [2006] ICR 450

Links:

Bailii

Citing:

See Also – NSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
Cited – Wolesley Centers Ltd v Simmons EAT 24-May-1993
The EAT considered the Polkey principle: ‘a finding that a dismissal is unfair does not mean that an employee is entitled to full compensation for the loss resulting from the loss of his job. He is only entitled to the loss he has sustained which is . .

Cited by:

Applied – VMI (Blackburn) Ltd v Camm EAT 2-Jun-2011
EAT Practice and Procedure : Right To Be Heard – Where an Employment Tribunal has applied rule 9 of its rules of procedure, the Respondent not having lodged a response in time, is not permitted to participate in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.244141

Laing v Manchester City Council: EAT 28 Jul 2006

The Tribunal considered whether there was a need rigidly to approach the test for discrimination by application of the two stage test in Igen v Wong. Elias J said: ‘where the tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever.’ The boundary between fact and explanation is not clear cut.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0128 – 06 – 2807, [2006] IRLR 748, UKEAT/0128/06, [2007] ICR 1519

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Cited by:

Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
See Also – I Laing v Manchester City Council EAT 16-Nov-2004
EAT Practice and Procedure – Case Management. . .
Cited – Gay v Sophos Plc EAT 16-Sep-2011
EAT AGE DISCRIMINATION
Senior employee aged 55 dismissed for redundancy following restructuring – Not considered for possible alternative roles – Younger colleagues, affected by same restructuring or other . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.244049

Corus Hotels Plc v Williams: EAT 28 Jun 2006

EAT The employee, a black woman of West Indian origin, was found to have been unfairly dismissed and to have suffered race discrimination. The former finding rested on the fact that the employers had failed to act reasonably in assisting the employee to find alternative employment when she was made redundant and had not given priority in appointment to her as a redundant employee. The latter was based on her rejection for two posts for which she was interviewed and for which she appeared well qualified. The employers appealed both findings. As to the unfair dismissal finding, it was said that the employers had acted reasonably. As to the race discrimination finding, it was alleged that there were innocent non-discriminatory explanations for failing to appoint her which the tribunal should have accepted, or at least the tribunal should have said why they rejected them. The EAT held that the tribunal was entitled to conclude that the employers had acted unreasonably; and that reading the decision fairly it was plain that the tribunal had found the explanations unconvincing and unreliable such that the tribunal was obliged to infer race discrimination. Appeal dismissed.

Judges:

Elias J P

Citations:

[2006] UKEAT 0014 – 06 – 2806

Links:

Bailii

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.244046

Khan v Heywood and Middleton Primary Care Trust: CA 27 Jul 2006

Does an Employment Tribunal have jurisdiction to set aside a notice of withdrawal of a claim given under rule 25(2) of the 2004 Regulations?
Held: Once a notice of withdrawal of a claim was served the employment tribunals had no jurisdiction to set it aside. The rules were lamentably drafted, but the decision was correct.

Judges:

Wall LJ

Citations:

Times 28-Aug-2006, [2006] EWCA Civ 1087

Links:

Bailii

Statutes:

Employment Tribunals (Constitution and Rules of Procedure Regulations 2004

Jurisdiction:

England and Wales

Employment

Updated: 07 July 2022; Ref: scu.243979

Sivanandan v London Borough of Enfield and others: CA 7 Oct 2002

Citations:

[2002] EWCA Civ 1443

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sivanandan v London Borough of Enfield EAT 1-May-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Oct-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Feb-1999
. .
See Also – Sivanandan v Enfield and others EAT 25-Apr-2001
. .
See Also – Sivanandan v Enfield and Another EAT 11-Jul-2001
. .
Cited – Sivanandan v Enfield and others EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and Another EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 23-Jul-2002
EAT Procedural Issues – Employment Tribunal . .

Cited by:

See Also – London Borough of Enfield v Sivanandan QBD 5-Apr-2004
. .
See Also – London Borough of Enfield v Sivanandan CA 20-Jan-2005
The employee first issued a claim in the employment tribunal, and then in the High Court. The defendant company argued that the tribunal proceedings were not concluded before the High Court proceedings were issued, but only later when they were . .
See Also – London Borough of Enfield v Sivanandan EAT 12-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal.
EAT Practice and Procedure – Striking-out/dismissal. . .
See Also – London Borough of Enfield v Sivanandan CA 29-Jun-2006
Application for civil restraint order. . .
See Also – Sivanandan v London Borough of Enfield EAT 19-Oct-2006
EAT Practice and Procedure – Estoppel or Abuse of Process. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.217749

O’Flynn v Airport Coach Company Ltd: CA 24 Sep 2002

Renewed application for leave to appeal.

Citations:

[2002] EWCA Civ 1570

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – K O’Flynn v Airlinks the Airport Coach Company Limited EAT 15-Mar-2002
EAT Unfair Dismissal – Reason for Dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .

Cited by:

Appealed to – K O’Flynn v Airlinks the Airport Coach Company Limited EAT 15-Mar-2002
EAT Unfair Dismissal – Reason for Dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.217604

Johnson v Queen Elizabeth Hospital NHS Trust: EAT 7 Aug 2002

Citations:

[2002] UKEAT 1331 – 01 – 0708

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Johnson v Queen Elizabeth Hospital NHS Trust EAT 11-Sep-2003
EAT Sex Discrimination – Inferring discrimination. . .
See Also – Johnson v Queen Elizabeth Hospital NHS Trust EAT 10-Apr-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.203046

Johnson v Queen Elizabeth Hospital NHS Trust: EAT 11 Sep 2003

EAT Sex Discrimination – Inferring discrimination.

Judges:

His Hon Judge Prophet

Citations:

[2003] UKEAT 1331 – 01 – 1109, EAT/1331/01

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Johnson v Queen Elizabeth Hospital NHS Trust EAT 7-Aug-2002
. .
See Also – Johnson v Queen Elizabeth Hospital NHS Trust EAT 10-Apr-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.191813

Wandsworth NHS Primary Care Trust v Obonyo: EAT 14 Jul 2006

EAT ET upheld Claimant’s complaints of direct race discrimination; victimisation; harassment and constructive unfair dismissal. Following Burns/Barke reference back and ET Response the findings of direct discrimination and victimisation were set aside and the remaining findings upheld.

Judges:

Peter Clark J

Citations:

[2006] UKEAT 0237 – 05 – 1407

Links:

Bailii

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.243448

Palmer v Dunedin Canmore Housing Association Ltd: EAT 6 Jul 2006

EAT The claimant alleged that she had been victimised contrary to the provisions of s.2(1) of the Race Relations Act 1976. The tribunal were satisfied that the claimant had carried out a protected act and that she had been treated less favourably than an appropriate comparator. The tribunal were of the view that the respondents acted unreasonably in disciplining the claimant but they were not satisfied that there was any direct evidence or evidence from which it could be inferred that that treatment was by reason of her having carried out a protected act. The Employment Appeal Tribunal were not persuaded that their conclusion was a perverse one nor that they should have considered whether the claimant had carried out a protected act under a subparagraph of s.2(1) of the 1976 Act that was not founded on.

Judges:

Lady Smith

Citations:

[2006] UKEAT 0004 – 06 – 0607, UKEATS/0004/06

Links:

Bailii, EAT

Statutes:

Race Relations Act 1976 2(1)

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.243446

Humphries v Chevler Packaging Ltd: EAT 24 Jul 2006

EAT The Appellant left her employment and claimed (a) unfair constructive dismissal and (b) disability discrimination. On a preliminary point the ET held the disability discrimination claim was out of time as time ran from the date the employer made it clear no further adjustment could be made and not from the date of termination of employment. ET further held it would not extend time.
Held: the decision as to the time limit was correct and the ET was entitled not to extend time.
Reid J said: ‘the failure to make adjustments is an omission. The respondents are omitting to do what (on the appellant’s case) they are obliged to do. They are not doing any act, continuing or otherwise.’ and ‘There is no requirement of motive in paragraph 3(3) and (4) as is suggested by the Claimant. Under paragraph 3(3)(c) the question is whether there has been a decision not to do something. If there has been an inconsistent act, then (in absence of evidence to the contrary) the paragraph provides that the decision is to be taken as having been made when the inconsistent act is done. If there is no inconsistent act, then the person is taken (to paraphrase) to have decided upon the omission at the end of a reasonable time. Thus, in the absence of evidence to the contrary, if there is no evidence of a deliberate decision, a deliberate decision is imputed to the person.’

Judges:

His Honour Judge Reid QC

Citations:

[2006] UKEAT 0224 – 06 – 2407

Links:

Bailii

Citing:

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

Cited by:

Cited – Matuszowicz v Kingston Upon Hull City Council CA 10-Feb-2009
The appellant was employed as a teacher. He became disabled on losing part of his arm. He had been located at a prison and was unable to manage the heavy doors. He complained that the respondent had not made reasonable adjustments by transferring . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.243443

Network Rail Infrastructure Ltd v Booth: EAT 22 Jun 2006

EAT Compensation for sex discrimination. Tribunal assessed future pension loss using the substantial loss method but without giving any credit in the overall loss assessment for pension benefits likely to be acquired in future employment. In addition there was a challenge to the loss referable to loss of private health insurance. Was the Tribunal entitled to use the method it did, and did it err in failing to give credit to future benefits? The EAT answered both questions in the affirmative.

Judges:

Elias P J

Citations:

[2006] UKEAT 0071 – 06 – 2206

Links:

Bailii

Employment

Updated: 07 July 2022; Ref: scu.243440

May Gurney Ltd v Adshead and others: EAT 26 Jul 2006

EAT Calculation of holiday pay in circumstances where the employees were entitled to a fixed and variable bonus. Did the pay vary with the work done? The Employment Tribunal held that it did and that both pursuant to contract and under the Working Time Regulations 1998 the holiday pay should be determined by averaging the pay over the twelve weeks preceding the holiday. EAT agreed. Consideration of the Court of Appeal decision in Evans v The Malley Organisation Ltd (trading as First Business Support) [2003] ICR 432

Judges:

Elias PJ

Citations:

[2006] UKEAT 0150 – 06 – 2607

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 July 2022; Ref: scu.243445

Hardman and Co v Urmston and others: EAT 14 Jul 2006

EAT Appeal by employers on the ground of inadequate reasoning by the ET following findings of unfair dismissal after dismissal immediately before a TUPE transfer.
Appeal dismissed on the facts. No inadequate reasoning by ET. A claim of perversity was also dismissed.

Judges:

Birtles J

Citations:

[2006] UKEAT 0620 – 05 – 1407

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 July 2022; Ref: scu.243222

Ansar v Lloyds TSB Bank Plc and others 0152 – 06 – 1407: EAT 14 Jul 2006

ECJ Appeal against dismissal of claims of race discrimination and victimisation on grounds of apparent bias/judicial misconduct of ET and perversity/error of law. Appeal on both grounds dismissed. No reason why, consistent with Lodwick, such an appeal could not be disposed of by EAT, after operation, where appropriate, of paragraph 11 of EAT Practice Direction without cross-examination or full, or even preliminary, hearing.

Citations:

[2006] UKEAT 0152 – 06 – 1407

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ansar v Lloyds TSB Bank Plc and others 0609 – 05 – 1407 EAT 14-Jul-2006
EAT Appeal, on basis that Chairman ought to have recused himself from pre-hearing review of a second action, because of outstanding complaints against him of apparent bias/alleged misconduct in respect of an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.243220

Ansar v Lloyds TSB Bank Plc and others 0609 – 05 – 1407: EAT 14 Jul 2006

EAT Appeal, on basis that Chairman ought to have recused himself from pre-hearing review of a second action, because of outstanding complaints against him of apparent bias/alleged misconduct in respect of an earlier hearing between the same parties in the first action, which was being appealed. Neither the existence nor the nature of those complaints made it necessary or appropriate for the Chairman to recuse himself, and there was no merit in the two other points raised by way of challenge to the Chairman’s decision on the pre-hearing review. Locabail, Lodwick, Amec and Dobbs in the CA, and the robust approach to recusal applications based upon the existence of outstanding complaints, followed: and dicta in Breeze Benton and Deman disapproved. The careful and proper consideration by the EAT of a bias allegation or a recusal application should not necessarily require, particularly if the EAT Rule 11 procedure was operated at the sift stage, cross-examination or a full, or even a preliminary, hearing and might well be capable of being dealt with under Rule 3(7) and (10) of the EAT Rules.

Judges:

Burton J

Citations:

[2006] UKEAT 0609 – 05 – 1407

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Ansar v Lloyds TSB Bank Plc and others 0152 – 06 – 1407 EAT 14-Jul-2006
ECJ Appeal against dismissal of claims of race discrimination and victimisation on grounds of apparent bias/judicial misconduct of ET and perversity/error of law. Appeal on both grounds dismissed. No reason why, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.243221

Whitehouse v North Bristol NHS Trust: EAT 10 Jul 2006

EAT This case concerns the construction of certain terms and conditions of employment of Junior Hospital Doctors, in particular with regard to pay protection. I was told that the case is of general importance to many Doctors and Health Authorities. I was told that varying constructions have been placed on the relevant conditions by different Health Authorities.

Judges:

Serota QC J

Citations:

[2006] UKEAT 0133 – 06 – 1007

Links:

Bailii

Employment, Health Professions

Updated: 07 July 2022; Ref: scu.243224

Waters v Bankside Leisure Ltd: EAT 1 Jun 2006

EAT Practice and Procedure – Bias, misconduct and procedural irregularity
Unfair Dismissal – Reason for dismissal including substantial other reason; Polkey deduction
Appellant was dismissed by Company, in which he was 1/3 shareholder, by the other 2/3 shareholders following a disciplinary hearing which had been pre-determined. Employment Tribunal (ET) held this was a procedural error, that he would have been dismissed anyway, and section 98(A) applied. Respondent had not relied on s.98(A), but on assertion disciplinary procedure was not pre-judged. ET had heard no argument or submissions on s.98(A) or Polkey. Case remitted to new Tribunal.

Citations:

[2006] UKEAT 0175 – 06 – 0106

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 July 2022; Ref: scu.243219

Mehta v London Borough of Haringey: EAT 3 Jul 2006

EAT held that on the factor of this case the letter of dismissal was unambiguous and there was therefore no place for the application of the contra proferentem rule of construction. There was therefore no need to follow Chapman v Letheby and Christopher Ltd [1981] IRLR 441.
For UKEAT/0636/05/LA
At the hearing of this Appeal there was a dispute between the parties as to what documents were before the Chairman when she refused a review. Order made under Barke v Seetec Business Technology Centre Ltd [2005] ICR 1373.

Judges:

Birtles J

Citations:

[2006] UKEAT 00095 – 06 – 0307

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Adams v GKN Sankey Ltd EAT 1980
The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.243223

Danlardy v Southwark Race Equalities Council: EAT 19 May 2006

EAT Practice and Procedure – Striking-out/dismissal
Unfair Dismissal – Automatically unfair reasons
Employment Tribunal failed to properly analyse the relevant questions which it had to ask itself in order to decide whether or not there was an automatically unfair dismissal under s.104 Employment Rights Act 1996. In particular it failed to ask itself (a) whether Appellant was asserting a statutory right (even though one did not exist) and (b) whether he acted in good faith.

Judges:

Birtles J

Citations:

[2006] UKEAT 0159 – 06 – 1905

Links:

Bailii

Statutes:

Employment Rights Act 1996 104

Jurisdiction:

England and Wales

Employment

Updated: 07 July 2022; Ref: scu.243218

Unison v Leicestershire County Council: CA 29 Jun 2006

The council had dismissed all workers within a group of employees, and invited them to re-apply for their jobs. The council now appealed a protective award made on the basis that there had been inadequate consultation with the union.
Held: The court refused permission to raise a new point of law not argued below as to the relevence of European Law. Generally a new point will not be allowed to be advanced on appeal if it was not advanced below, but exceptionally a hard-edged question of law may be, but a case which requires further investigation by an Employment Tribunal would be most unlikely.

Judges:

Brooke LJ, Laws LJ, Scott Baker LJ

Citations:

[2006] EWCA Civ 825, [2006] IRLR 810, [2007] BLGR 208

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 188

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – The Blackpool Fylde and Wyre Society for the Blind v Begg EAT 31-Mar-2005
EAT Practice and Procedure -and- Disability Discrimination
Appellant’s application to raise a new point on appeal (that the Law Reform (Contributory Negligence) Act 1945 applies to Disability Discrimination . .
Cited – Junk v Kuhnel ECJ 27-Jan-2005
ECJ Social Policy – Directive 98/59/EC – Collective redundancies – Consultation with workers’ representatives – Notification to the competent public authority – Concept of ‘redundancy’ – Time at which redundancy . .
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – 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. . .
Appeal from – Leicestershire County Council v Unison EAT 2-Sep-2005
EAT Redundancy: Protective Award
Employment Tribunal correctly applied the judgment in Susie Radin v GMB [2004] ICR 893 in its approach to the calculation of a protective award for one group of workers, . .

Cited by:

Cited – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Cited – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.242905

Commissioners of Revenue and Customs v Leisure Employment Services Limited: EAT 28 Mar 2006

The defendant employed seasonal workers. They deducted from their salaries before payment, fees for accomodation provided.
Held: The deductions reduced the payments below the national minimum wage and were unlawful.
Elis J said: ‘I take the purpose here to be specifically the elimination of payment by benefits in kind and a desire to ensure that workers should receive cash in hand or at least the national minimum wage, save where carefully . . circumscribed exceptions apply. .’

Judges:

Elias J P

Citations:

[2006] UKEAT 0106 – 06 – 2703, Times 17-May-2006, UKEAT/0106/06, [2006] ICR 1094

Links:

Bailii, EAT

Statutes:

National Minimum Wage Regulations 1999 (1999 No 584)

Cited by:

Appeal from – Leisure Employment Services Ltd v Revenue and Customs CA 16-Feb-2007
The company appealed a finding that it had been paying workers at less than the minimum hourly rate. Its workers resided at their places of work, and deductions were made toward the cost of providing accomodation etc. The company claimed that the . .
Cited – Revenue and Customs v Lorne Stewart Plc (National Minimum Wage) EAT 13-Nov-2014
EAT National Minimum Wage – Lorne Stewart paid for employees to attend courses on condition they signed an agreement to repay all or part of the cost of the course if they left within two years and providing for . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 July 2022; Ref: scu.242884

Deman v Owen and Another: EAT 15 Mar 2006

EAT Race Discrimination: Inferring Discrimination and Victimisation
Direct discrimination alleged. Employment Tribunal finding that selection panel rejected Appellant for shortlist because he did not have the specialist qualifications required upheld.
Victimisation: unclear findings by Employment Tribunal. Case remitted for rehearing by fresh Employment Tribunal.

Judges:

The Honourable Mr Justice Bean

Citations:

[2006] UKEAT 0304 – 05 – 1503, UKEAT/0304/05

Links:

Bailii, EAT

Citing:

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

Employment, Discrimination, Employment

Updated: 06 July 2022; Ref: scu.242585

Hertz (UK) Ltd v Ferrao: EAT 10 Mar 2006

EAT The Claimant was dismissed in December 2004 after defects in his performance had appeared in August 2004. Because of the delay and for other reasons which they set out in detail the Tribunal were not satisfied that the dismissal was truly for misconduct and therefore found that the dismissal was unfair.
Held: The Tribunal’s conclusion was not made in error of law and was open to them on the facts, and the appeal failed.
The Tribunal deducted 10% from compensation because the employee did not pursue an internal appeal. They erroneously held that the transitional provisions in Regulation 18 of the Dispute Regulations did not apply; but the only answer on the facts, had those transitional provisions been applied, would have been that the employers did not contemplate dismissal etc before 1 October 2004. Therefore the Tribunal were right, albeit for the wrong reasons, to make the deduction. The employee’s cross-appeal failed.

Judges:

Burke QC HHJ

Citations:

[2006] UKEAT 0570 – 05 – 1003

Links:

Bailii

Employment

Updated: 06 July 2022; Ref: scu.242586

Boulding v Land Securities Trillium (Media Services) Ltd: EAT 3 May 2006

EAT Practice and Procedure: No case to Answer and Public Interest Disclosure:
The Employment Tribunal erred in acceding to a half-time submission of no case made in a whistle-blowing claim. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04) and it should normally be heard in full: Logan v The Commissioners of Customs and Excise [2004] IRLR 63 (CA). The question under Employment Rights Act 1996 s43B of the likelihood of the employer not responding to the Claimant’s allegation of wrongdoing and stopping uncertified electrical equipment being used did not depend solely on the Claimant’s appreciation. The Employment Tribunal should have considered, by examining evidence from the Respondent, what its response was likely to be. Case remitted to same Employment Tribunal to continue the hearing. andpound;10K costs order set aside.

Judges:

McMullen QC J

Citations:

[2006] UKEAT 0023 – 06 – 0305, UKEAT/0023/06

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 43B

Employment

Updated: 06 July 2022; Ref: scu.242589

Network Rail Infrastructure Ltd v Griffiths-Henry: EAT 23 May 2006

EAT Race Discrimination – Inferring discrimination; Burden of proof
Sex and race discrimination. Was the Tribunal entitled to find that Claimant had established a prima facie case? If so, did it properly analyse the nature of the legal burden on the employer once the onus of proof had shifted? The Employment Appeals Tribunal (EAT) answered yes to the former and no to the latter. Observations on whether a Tribunal should indicate whether it is making a finding of conscious or unconscious discrimination.
EAT Race Discrimination – Inferring discrimination; Burden of proof
Sex and race discrimination. Was the Tribunal entitled to find that Claimant had established a prima facie case? If so, did it properly analyse the nature of the legal burden on the employer once the onus of proof had shifted? The Employment Appeals Tribunal (EAT) answered yes to the former and no to the latter. Observations on whether a Tribunal should indicate whether it is making a finding of conscious or unconscious discrimination.

Judges:

Elias J P

Citations:

[2006] UKEAT 0642 – 05 – 2305, [2006] IRLR 865, UKEAT/0642/05

Links:

Bailii, EAT

Cited by:

Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.242596

Deman v Coates: EAT 12 May 2006

EAT Practice and Procedure: Striking-out/dismissal – Split hearings – Employment Tribunal refused several applications for an adjournment of the liability hearing because of the Respondent’s illness and proceeded to find Respondent guilty of two acts of direct discrimination. At the remedies hearing the same Employment Tribunal found it would not be just and equitable to make an award of compensation because the Respondent was not able to be present at the hearing due to illness and struck out the claim: a clear error of law. Case remitted to a fresh Employment Tribunal to consider the reinstated claim for compensation.

Judges:

Birtles HHJ

Citations:

[2006] UKEAT 0468 – 05 – 1205, UKEAT/0468/05

Links:

Bailii, EAT

Employment

Updated: 06 July 2022; Ref: scu.242593

Moyhing and Another v Barts and London NHS Trust: EAT 28 Apr 2006

EAT The appellant was a student nurse. He was required to be chaperoned when carrying out intimate procedures on female patients whereas a female student nurse was not required to have a chaperone when carrying out intimate procedures on male patients. The respondent accepted that this was direct discrimination and therefore could not be justified as a matter of law, but submitted that the appellant had suffered no detriment. The employment tribunal agreed but the EAT held that this was an error of law. Compensation was limited to injury to feelings only, and at the behest of the appellant that was fixed by the EAT rather than being remitted to the employment tribunal. The amount was fixed at the lower end of the scale, the sum of andpound;750 being awarded.

Judges:

Mr Justice Elias (President)

Citations:

[2006] UKEAT 0085 – 06 – 2804, UKEAT/0085/06, [2006] IRLR 860

Links:

Bailii, EATn

Citing:

See Also – Moyhing v Homerton University Hospitals NHS Trust and others EAT 3-May-2005
EAT AIDING AND ABETTING; DISCRIMINATION BY OTHER BODIES
The parties took part in an Employment Tribunal hearing of a preliminary issue as to whether, in a case where the Appellant alleged a discriminatory . .

Cited by:

Cited – HM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.242588

North Wales Training and Enterprise Council Ltd v Astley and others: HL 21 Jun 2006

Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been a transfer over time, so as to diminish their periods of continuous employment. The matter had been referred to the ECJ, and now returned. The claimants now sought to argue that now that the date of the transfer was established they should be deemed to have been transferred on that date even though they remained formally civil servants.
Held: (Majority) The appeal was dismissed. The respondent employees had continuous employment with both the civil service and the appellants. ‘the sole reservation to the general rule to which the ECJ referred . . . of its judgment does not apply in this case. The respondents were in a position on or after the date of the transfer to choose of their own free will not to work for Newtec. But they did not make that choice. The fact is that they continued to do the same work in the area offices after the transfer of the undertaking to Newtec, albeit in the belief that they remained in the employment of the DoE. This leads inevitably to the conclusion that their contracts of employment were transferred automatically to Newtec with continuity of employment on the date of the transfer. ‘

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance

Citations:

[2006] UKHL 29, [2006] ICR 992, [2006] 4 All ER 27, [2006] IRLR 635, [2006] 1 WLR 2421

Links:

Bailii

Statutes:

Council Directive 77/187/EEC, Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794) 5

Jurisdiction:

England and Wales

Citing:

At ECJ – Celtec Ltd v John Astley and Others ECJ 26-May-2005
Europa Directive 77/187/EEC – Article 3(1) – Safeguarding of employees’ rights in the event of transfers of undertakings – Transferor’s rights and obligations arising from a contract of employment or from an . .
First House of Lords – Celtec Limited v Astley and others HL 10-Nov-2003
The employments of civil servants had been transferred to the defendant company. There had been some delay between their resignations and the new arrangements. The employee claimed the protection of the directive, saying that there had been a . .
At EAT – Celtec Limited v John Astley Julie Owens, Deborah Lynn Hawkes EAT 5-Oct-2001
The employer appealed a finding that there had been continuity of employment between itself and a previous employer. The employees had sought a statement as to their terms of employment. The employer was a training and enterprise council, to whom . .
At Court of Appeal – J Astley and others v Celtec Ltd CA 19-Jul-2002
Civil servants had been transferred to Training and Enterprise Councils in 1990, and resigned from the Civil Service in 1993. They appealed a decision that there had not been a transfer of an undertaking, and that they had continuity of employment. . .
Cited – Giuseppe d’Urso, Adriana Ventadori and others v Ercole Marelli Elettromeccanica Generale SpA ECJ 25-Jul-1991
Europa Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of . .
Cited – Rotsart de Hertaing v Benoidt and IGC Housing Service (In Liquidation) and Another ECJ 14-Nov-1996
ECJ Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses – Transfer to the transferee of the rights and obligations arising from a contract of employment . .
Cited – Amministrazione Delle Finanze Dello Stato v Simmenthal SpA (No 2) ECJ 9-Mar-1978
ECJ The Court of Justice considered a reference for a preliminary ruling, pursuant to article 1977 of the Treaty, as having been validly brought before it so long as the reference has not been withdrawn by the . .
Cited – Foreningen Af Arbejdsledere I Danmark v A/S Danmols Inventar, In Liquidation ECJ 11-Jul-1985
Europa Article 1(1) of Council Directive no 77/187 does not apply to the transfer of an undertaking, business or part of a business where the transferor has been adjudged insolvent and the undertaking or business . .
Cited – Arie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv ECJ 7-Feb-1985
ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, . .
Cited – Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run . .
Cited – Katsikas and others v Konstantinidis and others ECJ 16-Dec-1992
ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not . .
Cited – Berg And Busschers v Besselsen ECJ 5-May-1988
Europa Social Policy – Article 3(1) of Directive 77/187/EEC which concerns the safeguarding of employees’ rights in the event of transfers of undertakings must be interpreted as meaning that after the date of . .
Cited – Foster and others v British Gas plc ECJ 12-Jul-1990
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. . .
Cited – Redmond Stichting v Bartol and others (Judgment) ECJ 19-May-1992
Europa Article 1(1) of Council Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or . .
Cited – Foster v British Gas plc HL 1991
The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised . .

Cited by:

Cited – Royal Mail Group Ltd v Communication Workers Union CA 14-Oct-2009
Royal Mail had transferred some of its businesses. The union complained that the company’s explanation of the effect of the transfer to its members was incorrect in law. The EAT had found that the employer need only tell the employee of its honestly . .
Cited – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 06 July 2022; Ref: scu.242664

Taylor v OCS Group Ltd: CA 31 May 2006

The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior staff member’s emails. During the disciplinary hearing, he had been assisted by an interpreter for part of the hearing only.
Held: There is no rule of law that only a rehearing and not a review on a disciplinary appeal could cure a defect in fairness in the original hearing: ‘What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair.’

Judges:

Brooke LJ VP, Dyson LJ, Smith LJ

Citations:

[2006] EWCA Civ 702, [2006] IRLR 613, [2006] ICR 1602

Links:

Bailii

Statutes:

Employment Rights Act 1996, Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Citing:

Appeal from – OCS Group Ltd v Taylor EAT 23-May-2005
EAT Unfair Dismissal / Disability Discrimination – 1. The ET did not err in law when it decided that the Claimant because of his inability to participate in a disciplinary hearing on account of his profound . .
Cited – Whitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
Cited – Adivihalli v Export Credits Guarantee Department EAT 27-Mar-1998
A second disciplinary hearing by way of review rather than a rehearing might nevertheless be sufficient to remedy the defects of an earlier hearing. . .
Cited – Leary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
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 – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Cited – Sartor v P and O European Ferries (Felixstowe) Ltd CA 1992
When considering whether an employer had acted reasonably in a disciplinary hearing, all that section 57 required was (Purchas LJ) ‘that the employer should have a reason falling within the provisions and that, in reaching that reason, he acted . .
Cited – H J Heinz Co Ltd v Kenrick EAT 3-Dec-1999
EAT Disability Discrimination – Compensation. . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – E I Du Pont De Nemours and Company v S T Dupont; Du Pont Trade Mark CA 10-Oct-2003
The court considered the circumstances under which a Hearing Officer’s decision could be reversed on appeal: ‘Those experienced in cases such as these, such as the Hearing Officer, would have known that the sort of evidence normally adduced on . .

Cited by:

Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Cited – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – First Hampshire and Dorset Ltd v Parhar EAT 10-May-2012
parharEAT2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Ill health capability dismissal. Section 98(4) Employment Rights Act 1996 reasonableness judged by Employment Tribunal only as at EDT; ET ought to have . .
Cited – Adeshina v St George’s University Hospitals Nhs Foundation Trust EAT 1-May-2015
adeshinaEAT201506
EAT Unfair Dismissal: Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
RACE DISCRIMINATION – Burden of proof
Unfair dismissal
(1) Whether the ET had erred in the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.242282

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. The claimant now sought leave to appeal.
Held: Leave was granted. The single aspect under which the school had succeeded was one where the EAT remained in error.

Judges:

Sedley LJ

Citations:

[2006] EWCA Civ 710

Links:

Bailii

Statutes:

Employment Rights Act 1996, Data Protection Act 1998

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .

Cited by:

Leave – Bolton School v Evans CA 15-Nov-2006
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. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.242275

Styles v London Borough of Southwark: EAT 12 Apr 2006

EAT Dismissal for misconduct. Tribunal concluded that whilst there were certain procedural failings, the dismissal was fair. Were they entitled to reach that conclusion or were the failings, considered cumulatively, of such a nature that a reasonable Tribunal ought to have found that the dismissal was unfair? Held that the Employment Tribunal was fully entitled to reach the decision that it did.

Citations:

[2006] UKEAT 0112 – 06 – 1204, UKEAT/0112/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – RSPCA v Cruden EAT 1986
The dismissal of an employee of the RSPCA was unfair simply because of a delay with no good reason of some 7 months in initiating proceedings. This was even though the employee had suffered no prejudice as a result of the delay.
If a . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.242240

Secretary of State for Trade and Industry v Rutherford and others: HL 3 May 2006

The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few people affected by the provisions, and provisions were on their face non-dicriminatory. Was indirect discrimination established? ‘article 141 does not . . . guarantee that a man over 65 will have the same (higher) level of pay as a woman under 65 doing equal work. Parliament has decided that a younger woman, who has worked for her employer for more than a year, should have rights which a man or woman over 65 does not have. The man over 65 can claim no more than to receive pay equal to the pay of a woman over 65 for equal work. In the usual jargon, the woman over 65 is the appropriate comparator. ‘ The House had to discuss two issues, the identification of the appropriate pool for comparisons, and the choice between the advantage led and the disadvantage led approaches. In this case the use of more than one pool had led to confusion. Advantage-led claculations were to be preferred: ‘I do not express the view that some element of disadvantage-led analysis may not be appropriate in some cases. But it must be recognised that there is a difficulty here: the more extreme the majority of the advantaged in both pools, the more difficult it is, with any intellectual consistency, to pay much attention to the result of a disadvantage-led approach. ‘

Judges:

Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond

Citations:

Times 08-May-2006, [2006] UKHL 19, [2006] IRLR 551, [2006] ICR 785, [2006] 2 WLR 772

Links:

Bailii

Statutes:

Employment Rights Act 1996 109 156, Burden of Proof Directive (97/80/EC)

Jurisdiction:

England and Wales

Citing:

Appeal from – Rutherford and Another v Secretary of State for Trade and Industry CA 3-Sep-2004
The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Griggs v Duke Power Company 1971
(US) The court examined the arguments relating to indirect discrimination. . .
Cited – J P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
Cited – Nikoloudi v Organismos Tilepikinonion Ellados AE, (Social Policy) ECJ 10-Mar-2005
Europa Social policy – Male and female workers – Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) – Directive 75/117/EEC – Equal pay – Directive . .
Cited – Ingrid Rinner-Kuehn v Fww Spezial-Gebaudereinigung Gmbh and Co. Kg ECJ 13-Jul-1989
The Court heard a complaint about a German statute providing that an employer need not pay sick pay to a part-time worker. In at least seven member states part-time workers were predominantly women (the percentages ranging from 89% in the Federal . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Cited – Perera v Civil Service Commission (No 2) EAT 1982
The tribunal considered the method of selection of the pool on a claim for indirect discrimination. In this case the claimant alleged that an age test applied on his application would effectively limit the proportion of coloured who would meet the . .
Cited – Perera v Civil Service Commission (No 2) CA 1983
Upheld on Appeal. . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Jones v University of Manchester CA 10-Mar-1993
A claim for sex discrimination based on an age requirement was wrongly based. The proportion of mature graduates was irrelevant in the appropriate pool. The Court cautioned tribunals to avoid placing artificial limitations on the scope of the pool . .
Cited – London Underground Limited v Edwards CA 21-May-1998
A new driver roster imposing shift working timetables discriminated against women since significantly less in proportion of women could meet the new arrangements – indirect discrimination . .
Cited – London Underground Limited v Edwards (2) CA 21-May-1998
New rosters for underground train drivers were indirectly discriminatory because all the men could comply with them but not all the women could do so: it was a ‘striking fact’ that not a single man was disadvantaged despite the overwhelming . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Cited – Andrews v British Columbia 1989
(Canada) McIntyre J defined discrimination: ‘discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing . .
Cited – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .

Cited by:

Cited – Eweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.241417

Regina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai: CA 1985

Sir John Donaldson MR said: ‘in the context of a situation with serious implications for the conduct of international relations, the courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if ever, be for judges to intervene where diplomats fear to tread.’

Judges:

Sir John Donaldson MR

Citations:

(1985) 107 ILR 462

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.241346

St Helens Metroploitan Borough Council v Derbyshire and others: CA 29 Jul 2005

The employees commenced a series of sex discrimination claims against the appellant. Many had settled, and the council wrote directly to the remaining claimants. The claimants said this amounted to intimidation because the council had not gone through their legal representatives, and as such was victimisation.
Held: The council’s appeal succeeded. The tribunal had not found that the employer had acted other than reasonably, and had erred to concluding that there had been victimisation. Mummery LJ (dissenting): ‘The employment tribunal was entitled to conclude that the Applicants were subjected to treatment, which was less favourable and detrimental, and which was not suffered by the comparators in like circumstances. As the Applicants were still bringing their equal pay claims against the Council, they were vulnerable to pressures from the Council to abandon or settle their claims. The pressures could take the form of inducing fear of the consequences of successful claims, as asserted by the Council to them and to their colleagues in the letters. ‘

Judges:

Mummery LJ, Jonathan Parker LJ, Lloyd LJ

Citations:

[2005] EWCA Civ 977, Times 26-Aug-2005, [2006] ICR 90, [2005] IRLR 801

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 4

Jurisdiction:

England and Wales

Citing:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Cornelius v University College of Swansea CA 1987
A college declined to act on an employee’s transfer request or to operate their grievance procedure while proceedings under the 1975 Act, brought by the employee against the college, were still awaiting determination. The college was trying to . .

Cited by:

Appeal from – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.229152

Mccarron v Road Chef Motorways Ltd and Others: EAT 18 Feb 2019

PRACTICE AND PROCEDURE – Striking-out/dismissal
The Claimant’s claims included disability discrimination. The Respondents did not admit the Claimant’s disabled status in law. At a case management hearing, a further Preliminary Hearing was listed, to determine the issue of whether the Claimant was a disabled person in law. The Judge indicated that, on the basis of the current evidence, the Claimant’s case on this point looked likely to fail. Orders were made, setting a deadline for her to provide any further impact statement and any further medical or similar evidence, on which she wished to rely at that hearing. That deadline was subsequently extended, but no further evidence was provided. The Respondents then applied for the disability discrimination claims to be struck out. However, the Tribunal made an Unless Order, in equivalent terms to the original order, but setting a fresh deadline. An impact statement was provide by that deadline, but no other evidence. The Tribunal then issued a notice, under Rule 38(1), declaring that the Unless Order had taken effect and the disability discrimination claims had been dismissed. The Claimant appealed that determination.
Held: On a proper construction of the Unless Order, the direction to provide ‘any’ medical evidence or similar evidence relied upon did not require the Claimant to produce such evidence, but required her, if she wished to rely on ‘any’ such evidence, then to produce it by the deadline set in the Order. Accordingly, the Tribunal had erred in determining that, because the Claimant had not provided any such evidence, she was in breach of the order, and erred in declaring that her disability discrimination claim had therefore been dismissed.

Citations:

[2019] UKEAT 0268 – 18 – 1802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.638490

Daly v The Newcastle Upon Tyne Hospitals NHS Foundation Trust: EAT 22 Mar 2019

Appellate Jurisdiction : Reasons : Burns- Barke : Costs – The Claimant had pursued some 27 allegations of disability discrimination before the Employment Tribunal (‘ET’). After a fully contested hearing over five days, the ET had dismissed the Claimant’s claims. In providing its reasons, the ET set out its findings on each matter separately, under a summary of the allegation itself, and referred back to those findings – by paragraph number – when setting out its conclusions.
Subsequently, the ET made an order for costs against the Claimant.
The Claimant appealed both decisions. On the ET’s Judgment on Liability, he complained that its reasoning was inadequate: the ET had failed to make findings on some allegations; where it had made findings, it had failed to explain why it had formed the view that it had; it had failed to explain its position on critical documentary evidence; and it had failed to explain why it had reached the position it had when setting out its conclusions. The Claimant also raised a procedural issue regarding late disclosure by the Respondent. On the Costs Judgment, the Claimant contended that the ET had failed to demonstrate that it had considered its exercise of discretion – an essential second stage of the decision-making process.
Held: allowing the liability appeal in part and allowing the costs appeal.
In most respects, taking the ET’s reasoning as a whole, the ET’s findings were apparent and it was clear to the reader (particularly the parties, who did not come to the Judgment as strangers to the case) why the ET had preferred the evidence of the Respondent to that of the Claimant and why it had reached the view it had. As for the documentary evidence, it was unclear whether the points made on appeal had been raised below or what the oral evidence had been; in the circumstances, the Claimant could not make good his challenge to the adequacy of the reasons on this basis. The Claimant’s appeal would, however, be allowed in relation to allegations X and Y – relating to his complaint that false reports had been made against him and that statements and evidence to support those reports were not provided to him; it was not possible to see that the ET had made findings on these points and, to that limited extent, the liability appeal would be allowed. The additional objection made, in respect of what the Claimant contended was a procedural irregularity, did not, however, establish any unfairness: the new material had added nothing of substance to what was already before the ET.
As for the costs appeal, there were three stages to the ET’s consideration of costs application: (i) to determine whether its jurisdiction to make a costs award was engaged; (ii) if so, to then consider whether it should make costs award in that case (the use of the word ‘may’ made clear this was a matter of discretion); (iii) to determine the amount of any such award. In the present case, there was nothing to suggest that the ET had understood it had a discretion in making an award of costs, the reasoning moved straight from (i) to (iii). That was an error of law and the Claimant’s appeal would be allowed.

Citations:

[2019] UKEAT 0107 – 18 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 06 July 2022; Ref: scu.638491

Gunesh v The National Transport Corporation and Another: PC 13 May 2019

(From the Supreme Court of Mauritius) Appeal, with leave against the dismissal of his claim against the respondent for damages for wrongful termination of his long-standing employment as head of stores.

Judges:

Lord Kerr, Lady Arden, Lord Kitchin

Citations:

[2019] UKPC 17

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.638477

The Port Authority of Trinidad and Tobago v Daban: PC 20 May 2019

(From the Court of Appeal of the Republic of Trinidad and Tobago) Application of section 4(d) of the Constitution of the Republic of Trinidad and Tobago in an employment context.

Judges:

Lord Kerr, Lord Wilson, Lady Black, Lady Arden, Lord Sales

Citations:

[2019] UKPC 22

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Employment

Updated: 06 July 2022; Ref: scu.638479

Byron v Eastern Caribbean Amalgamated Bank (Antigua and Barbuda): PC 13 May 2019

(From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda) ‘The issue in this case in whether the appellant, the Eastern Caribbean Amalgamated Bank (‘the ECAB’) is liable to make the severance payment to which the respondent is entitled as a result of his dismissal by the Bank of Antigua (‘the BOA’). This depends upon the terms, express or implied, of the Purchase and Assumption Agreement under which the ECAB agreed to purchase certain assets and assume certain liabilities of the BOA’

Judges:

Lady Hale, Lord Wilson,Lady Arden, Lord Kitchin, Lord Sales

Citations:

[2019] UKPC 16

Links:

Bailii

Jurisdiction:

Commonwealth

employment

Updated: 06 July 2022; Ref: scu.638475

Argos Ltd v Reis: EAT 29 Nov 2010

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The tribunal did not err when it held that the employer unfairly dismissed the Claimant, since its investigation was not such as would entitle a reasonable employer to believe in the Claimant’s misconduct, or for it to say its dismissal of him was within the band of reasonable responses.

Citations:

[2010] UKEAT 0285 – 10 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.428713

Syed v Ford Motor Co: 1979

The actions and failures of a trade union representative can be attributed to the claimant.

Citations:

[1979] IRLR 335

Jurisdiction:

England and Wales

Citing:

Cited – Dedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .

Cited by:

Cited – Myers v T and S Stores Plc EAT 1-Dec-1998
. .
Cited – Bailie v Fire Authority for Northern Ireland NIIT 4-Mar-2004
. .
Cited – McDowell v Abbey National Plc NIIT 8-May-2008
NIIT It is the decision of the tribunal that it does not have jurisdiction to entertain the claim of the claimant as the claim was not presented within the specified time limit prescribed by Article 145 of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.428366

Riley v Tesco Stores Ltd: EAT 1979

Citations:

[1979] ICR 223

Jurisdiction:

England and Wales

Cited by:

Cited – The Royal Bank of Scotland Plc v Theobald EAT 10-Jan-2007
EAT Claim for unfair dismissal not presented timeously, within three months, but was presented thirteen days thereafter. During most of the three month period, the Claimant had an outstanding appeal process . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.383828

Turriff Construction Ltd v Bryant and others: QBD 1 Mar 1967

Appeal from a decision of the Industrial Tribunal dated 21st July, 1966, whereby they declared that for the purpose of calculating redundancy payments to be made to the seven respondents, the amount of a week’s pay in the case of each respondent should be computed upon the basis of a 51 hour normal working week.

Judges:

Lord Parker CJ, Diplock LJ, Ashworth J

Citations:

[1967] EWHC QB 1, (1967) 2 KIR 659

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.263360

Parkes Classic Confectionery Ltd v Ashcroft: QBD 7 Oct 1971

Appeal against a decision of an industrial tribunal determining that the applicant before the tribunal was entitled to a redundancy payment under the Redundancy Payments Act, 1965.

Judges:

Lord Widgery CJ, Bridge J, Shaw J

Citations:

[1971] EWHC QB 1, [1973] ITR 43

Links:

Bailii

Statutes:

Redundancy Payments Act, 1965

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.263363

Cheshire and Wirral Partnership NHS v Abbott and others: CA 4 Apr 2006

The employees alleged sex discrimination. As domestics who were mostly women, they were not paid the bonuses which went to porters. In making the claim, they excluded another group, namely caterers who were also mostly female, but also received the bonuses.
Held: When setting up the comparator groups, the advantaged groups should not be artificially reduced by omitting groups which also took the advantage claimed to be denied.

Judges:

Lord Justice Keene Lord Justice Auld Sir Christopher Staughton

Citations:

Times 10-May-2006, [2006] EWCA Civ 523, [2006] IRLR 546, [2006] ICR 1267

Links:

Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Appeal from – Cheshire and Wirral Partnership NHS Trust v S Abbott EAT 13-Sep-2005
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.242013

Serco Ltd v Redfearn: CA 25 May 2006

The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices was incompatible with his duties.
Held: The dismissal was not on racially discriminatory grounds, though considerations of race were involved. The employer’s appeal succeeded.
The claim of direct race discrimination was rejected: ‘Mr Redfearn was treated less favourably not on the ground that he was white, but on the ground of a particular non-racial characteristic shared by him with a tiny proportion of the white population, that is membership of and standing for election for a political party like the BNP. Serco was not adopting a policy which discriminated on the basis of a dividing line of colour or race. Serco would apply the same approach to a member of a similar political party, which confined its membership to black people. The dividing line of colour or race was not made by Serco, but by the BNP which defines its own composition by colour or race. Mr Redfearn cannot credibly make a claim of direct race discrimination by Serco against him on the ground that he is white by relying on the decision of his own chosen political party to limit its membership to white people. The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed Mr Redfearn’s complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws.’
The allegation of indirect discrimination failed: ‘For indirect discrimination . . it is necessary to identify a ‘provision, criterion or practice’ which Serco has applied or would apply equally to persons not of the same race or colour. . . Mr Redfearn . . failed to present the tribunal with a case, which satisfied the requisite elements of a claim for indirect race discrimination and upon which the tribunal could properly make a finding of indirect race discrimination. . . The employment tribunal appears to have attempted itself a version of a ‘provision, criterion or practice’ in paragraph 5.6 of its decision (see paragraph 28 above). However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of ‘membership of the BNP’ could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn ‘at a particular disadvantage’ when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were.’

Judges:

Mummery LJ, Dyson LJ, Sir Martin Nourse

Citations:

[2006] EWCA Civ 659, Times 27-Jun-2006, [2006] IRLR 623, [2006] ICR 1367

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Citing:

Appeal from – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .

Cited by:

Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Appeal from – Redfearn v The United Kingdom ECHR 16-Jan-2009
Statement of facts . .
Appeal from – Redfearn v The United Kingdom ECHR 6-Nov-2012
The applicant alleged that his rights had been infringed by his dismissal from his post as driver transporting children and adults with physical and/or mental disabilities. He had stood for election as a candidate for the British National Party, a . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.242184

Tesco Stores Ltd v Pryke: EAT 10 May 2006

EAT The Tribunal found that the employers’ dismissal of the employee after his lorry had turned over at a roundabout was unfair because their investigation of the facts had been ‘fundamentally flawed’. Held on appeal that the Tribunal had failed to apply the appropriate tests, in particular the range of reasonable responses test, and had decided on the basis of their own view of what was reasonable on the evidence before them. Held, further, that the Tribunal had made an order for re-instatement without considering contributory fault and erred in law in so doing. Claim remitted for new hearing by different tribunal.

Judges:

His Honour Judge Burke Qc

Citations:

[2006] UKEAT 0576 – 05 – 1005, UKEAT/0576/05

Links:

Bailii, EATn

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: 06 July 2022; Ref: scu.241833

Corus Hotels Plc v Woodward and Another: EAT 17 Mar 2006

EAT Sex Discrimination – injury to feelings
Sex discrimination – refusal of job after interview tainted by discrimination – award for injury to feelings affected by Tribunal’s indignation – size of Respondent company also wrongly taken into account – award reduced from andpound;5,000 to andpound;4,000.

Judges:

Bean J

Citations:

[2006] UKEAT 0536 – 05 – 1703

Links:

Bailii

Employment, Discrimination, Damages

Updated: 06 July 2022; Ref: scu.241832

Arora v Rockwell Automation Ltd: EAT 21 Apr 2006

EAT 10B
Unlawful Deduction from Wages – out of time
The alleged ‘deduction’ from wages was in fact an alleged underpayment some time after the termination of the contract of employment. In finding that time for claiming in respect of such deduction ran from the date of termination, the Tribunal fell into error. Time would normally begin to run from such date where there had been a complete non-payment, but where the claim was for an underpayment, time runs from the date when the underpayment was made for it was to be treated as the sum form which the deduction was made. Decision of EAT in Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398 clarified. Also there was a procedural issue on the application for a review.

Judges:

Altman J

Citations:

[2006] UKEAT 0097 – 06 – 2104

Links:

Bailii

Cited by:

Cited – Nambalat v Taher and Another EAT 8-Dec-2011
nambalatEAT2011
EAT National Minimum Wage Act 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.241630

Unison v Jervis: EAT 29 Mar 2006

EAT Sex Discrimination
Race Discrimination
Employee brought discrimination claims against employer – TU declined support – TU official gave evidence for respondents – ET rejected subsequent discrimination claims against TU based on refusal of support and the fact of official giving evidence but upheld claims based on providing witness statement to employer’s solicitors – no evidence to show even prima facie that this was discriminatory – TU’s appeal allowed and claims dismissed.

Judges:

The Honourable Mr Justice Bean

Citations:

[2006] UKEAT 0134 – 06 – 2903, UKEAT/0134/06

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241629

Direct Timber Ltd v Hayward: EAT 26 Apr 2006

EAT Practice and Procedure – review
Application of ET Rule 33 review procedure. Mandatory requirement for written application for review not fulfilled. Review refused. Appeal allowed; case remitted to consider (1) whether time for review application should be extended and (2) if so, whether default judgment should be set aside.

Judges:

His Honour Judge Peter Clark

Citations:

[2006] UKEAT 0646 – 05 – 2604, UKEAT/0646/05

Links:

Bailii, EAT

Employment

Updated: 06 July 2022; Ref: scu.241631

Van Dieren v Edwards and others: EAT 23 Mar 2006

EAT Unfair Dismissal
The Appellant was dismissed for alleged gross misconduct. The Employment Tribunal held that his ET1 was presented one day late and that it was reasonably practicable to have presented it in time. They rejected his claim to be entitled to an extension of time under Rule 15 of the Dispute Regulations 2004 on the grounds that he had not attended an appeal meeting and therefore was in breach of the Standard Grievance Procedure, 2002 Act Schedule 2, Part 2.
Held on appeal:
(i) that the Standard Dismissal and Disciplinary Procedure and not the Grievance Procedure applied: see Regulation 3(1) and 6(5);
(ii) that the Tribunal ought therefore to have considered Regulation 15(2) and not Regulation 15(3) in deciding whether the extension of time in regulation 15(i) applied; Regulation 15(2) raised different factual questions.
(iii) That it was possible that on the facts the Appellant might not have been in breach of the Disciplinary and Dismissal Procedure by virtue of Regulation 11(1) and (3) or Regulation 13(1);
(iv) that therefore the time extension issue should be remitted to the Tribunal.

Judges:

Burke QC HHJ

Citations:

[2006] UKEAT 0166 – 06 – 2303

Links:

Bailii

Employment

Updated: 06 July 2022; Ref: scu.241483

Whitbread Hotel Co Ltd v Bayley: EAT 3 Apr 2006

EAT Disability Discrimination: Disability
The Chairman erred in rejecting the evidence of a clinical diagnosis of severe dyslexia for reasons which were not sustainable. Once this diagnosis is accepted, pursuant to Guidance C12 it is ‘obvious’ that the effect is substantial on day-to-day activities. The parties agreed that since the Chairman otherwise directed herself correctly, she reached the correct result.

Citations:

[2006] UKEAT 0131 – 06 – 0304, UKEAT/0131/06

Links:

Bailii, EAT

Cited by:

See Also – Bayley v Whitbread Hotel Co Ltd (T/A Marriott Worsley Park Hotel) and Another EAT 16-Aug-2007
EAT PRACTICE AND PROCEDURE
Striking-out
The Employment Tribunal struck out a claim for disability discrimination because the Claimant’s father (acting as his representative) had withheld potentially . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241493

Airbus UK Ltd v Wilson: EAT 25 Apr 2006

EAT (1) The Appellants dismissed the Respondent after a long period of post-accident sickness, including a phobic anxiety about returning to the Appellants’ workplace. The Employment Tribunal found that the Respondent had been unfairly dismissed and that there had been disability discrimination. They awarded andpound;15,000 for disability discrimination and a basic award; no compensatory award was sought.
(2) The Appellants’ appeal against the disability discrimination finding was not opposed; the Employment Tribunal had based it on an act of discrimination which had neither been pleaded nor relied upon before them. The consequential award was set aside.
(3) The Appellants’ appeal against the unfair dismissal finding was rejected; the Tribunal had been entitled to conclude on the facts that, despite the strength of the medical evidence, because the Appellant had offered to provide further rehabilitative treatment which was rejected on the basis that the Respondent had just started his own course of such treatment, it was unfair to dismiss before the outcome of such treatment was known.

Judges:

Burke QC HHJ

Citations:

[2006] UKEAT 0061 – 06 – 2504

Links:

Bailii

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241484

Project v Hutt: EAT 6 Apr 2006

Lady Smith discussed the limits of case management powers when it came to persuading the parties to settle: ‘There are, of course, occasions when a judge or tribunal can quite properly explore difficulties that have become apparent from the evidence in a case, prior to the point at which all evidence has been led and submissions made, whether with a view to encouraging parties to consider settlement or narrowing the issues between them, or otherwise. There must, though, be few occasions when that can properly be done at a point prior to the leading of any evidence in the case since, at that stage, there is, by definition, no evidence before the court or tribunal on which it can comment. Moreover, if minded to make such a comment, it is plain that the risk of giving an impression of prejudgment will arise if it is not made clear to the parties that any views expressed are but provisional, that the tribunal’s mind is not yet made up and that it remains open to persuasion.’

Judges:

Lady Smith

Citations:

[2006] UKEAT 0065 – 05 – 0604, (2006) UKEAT S/0065/05/RN

Links:

Bailii

Cited by:

Approved – Steadman-Byrne v Amjad and others CA 27-Jun-2007
In the course of a personal injury trial, the judge asked counsel to his room, where he said that having been conviced that the claimants were not lying, the defence had no prospect of success, and complained that ‘Insurance companies are trying to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.241490

High Quality Lifestyles Ltd v Watts: EAT 10 Apr 2006

EAT The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator for the Claimant who was an HIV+ care worker dismissed because of the risk of transmission to users of the Respondent’s health care facilities. Further, the Tribunal had erred in finding that the Claimant had been treated less favourably when, in the absence of his area manager, his line manager had attended a meeting with him and with his director. Such disclosure to her was not a breach of confidentiality.
The Tribunal had not erred in its approach to disability related discrimination and to the duty to make reasonable adjustments under s3A(1) and 3A(2) for the Respondent had failed to justify its admittedly less favourable treatment of the Claimant who, following disclosure of his HIV+ status, was suspended and dismissed.

Judges:

His Honour Judge Mcmullen QC

Citations:

[2006] UKEAT 0671 – 05 – 1004, UKEAT/0671/05, [2006] IRLR 850

Links:

Bailii, EAT

Statutes:

Disability Discrimination Act 1995 3A(5), Directive 2000/78/EC Establishing a general framework for equal treatment in employment and occupation

Citing:

Cited – Post Office v Jones CA 5-Jun-2001
The employee had become diabetic. Upon his coming to require insulin, the employer undertook a new risk assessment, and restricted his duties as a driver. He claimed disability discrimination. At the tribunal, both employer and employee brought . .
Cited – Williams v J Walter Thompson Group Ltd CA 17-Feb-2005
In giving their decision, the court reminded tribunals when preparing their judgments, to make sure the reasons were user friendly. Here time had been wasted with confusion about the Roman Numerals used to number the reasons. . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – H J Heinz Co Ltd v Kenrick EAT 3-Dec-1999
EAT Disability Discrimination – Compensation. . .
Cited – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – Smith v Churchills Stairlifts Plc CA 27-Oct-2005
. .

Cited by:

Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241487

Gould v Swindon Borough Council: EAT 10 Jan 2006

EAT Unfair Dismissal: Constructive Dismissal
School teacher alleging driven to resign by breakdown of trust and confidence and repudiatory breach by employer.
Employment Tribunal upheld. Ample reasoning for findings: 1) no fundamental breach and 2) teacher resigned to take new job at more pay.

Judges:

Mr Recorder Luba QC

Citations:

[2006] UKEAT 0406 – 05 – 1001

Links:

Bailii, EAT

Employment

Updated: 06 July 2022; Ref: scu.241480

Jeffery and others v Secretary of State for Education and Another: EAT 17 Mar 2006

EAT Equal Pay Act
Appellants to have membership of the employer’s pension scheme backdated to include earlier periods of part-time employment. Chairman held that the applications were out of time. Was this an error of law? Observations on what constitutes a stable employment relationship.

Judges:

Elias J P

Citations:

[2006] UKEAT 0677 – 05 – 1703

Links:

Bailii

Statutes:

Equal Pay Act 1970, Treaty of the European Union 141

Employment, Discrimination, European

Updated: 06 July 2022; Ref: scu.241482