EAT The claimant, a service manager employed on the respondents’ trains, was dismissed on conduct grounds for having sworn at and been threatening towards a customer. She claimed she had been unfairly dismissed and the tribunal upheld her complaint. They found the respondents’ investigation to have been inadequate in respect that although they had a written complaint by the customer and had interviewed her by telephone, they had not conducted a face to face interview and should not have accepted the customer’s word.
Held: the tribunal had erred in relying on their own assessment of what had happened between the customer and the claimant, in relying on the Linfood guidelines in a case which did not involve an informant, in failing to apply the ‘range of reasonable responses’ test on the stage of investigation, and in making a qualitative assessment thereby substituting their own subjective views. The case was remitted to a freshly constituted tribunal for a rehearing.

Judges:

The Honourable Lady Smith

Citations:

[2006] UKEAT 0064 – 05 – 0404, UKEATS/0064/05

Links:

Bailii, EATn

Citing:

Cited – Linfood Cash and Carry v Thomson EAT 1989
One employee had informed his employer that a fellow employee had stolen two books of credit notes. He refused to allow his identity to be disclosed for fear of reprisals. The Tribunal had held that the dismissal was unfair because although the . .
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.241492

Judges:

Lord Justice Mummery Lord Justice Scott Baker The Right Honourable Sir Charles Mantell

Citations:

[2006] EWCA Civ 537

Links:

Bailii

Statutes:

Working Time Regulations 1998

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.241572

EAT Unfair Dismissal
Appeal v ET dismissal of complaint of UD under s.100(1)(c) ERA (employee having raised health and safety concerns). Crucial finding of fact underpinning decision as to the reason or principal reason for dismissal was unsupported by the evidence contained in the agreed note. Appeal allowed and case remitted.

Judges:

Cox J

Citations:

[2006] UKEAT 0024 – 06 – 0903

Links:

Bailii

Employment

Updated: 06 July 2022; Ref: scu.241481

EAT Transfer of Undertakings: Transfer and Continuity of Employment
Relevant transfer under TUPE – employees dismissed for misconduct with internal appeals pending at date of transfer. Appeals heard by Transferor and allowed; reinstatement directed. Whether employed by Transferor immediately before transfer and employment transferred to Transferee.

Judges:

His Honour Judge Peter Clark

Citations:

[2006] UKEAT 0698 – 05 – 3003, UKEAT/0698/05, [2006] IRLR 588

Links:

Bailii, EAT

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981

Jurisdiction:

England and Wales

Cited by:

Cited – Bangura v Southern Cross Healthcare Group Plc and Another (Transfer of Undertakings : Transfer) EAT 12-Mar-2013
EAT TRANSFER OF UNDERTAKINGS – Transfer
The Claimant was summarily dismissed on grounds of misconduct about 6 weeks before the care home at which she worked was transferred to the Second Respondent. At that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.241212

Citations:

[2001] UKEAT 0738 – 01 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Special Metals Wiggin Ltd v Moore EAT 6-Mar-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.204391

Employment contract tainted with illegality.

Citations:

[2002] EWCA Civ 1597

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.217750

Citations:

[2004] EWHC 1854 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 July 2022; Ref: scu.227081

Citations:

[2002] EWHC 1006

Jurisdiction:

England and Wales

Cited by:

Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.194035

The claimant had brought an action uunder the section with respect to his right to be accompanied at a disciplinary hearing. The employer lodged an appeal.
Held: The jurisdiction of the EAT was purely statutory. The powers to hear appeals were wide, but did not include any grant of right to hear such an appeal, and it could not do so.

Citations:

Times 02-Mar-2004

Statutes:

Employment Relations Act 1999 10

Jurisdiction:

England and Wales

Citing:

Cited – London Underground Ltd v Ferenc-Batchelor; Harding v London Underground Ltd EAT 10-Jul-2003
The employees argued that they should be allowed to be accompanied by a representative to a meeting where they might receive an oral warning.
Held: A disciplinary warning becomes a formal warning within the section where it is recordable as . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 July 2022; Ref: scu.194096

Judges:

Longmore, Gloster, Underhill LJJ

Citations:

[2014] EWCA Civ 1373, [2014] WLR(D) 442, [2015] ICR 272, [2015] IRLR 57

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.537983

Judges:

Lightman J

Citations:

[1999] EWHC 846 (Ch), [1999] IRLR 508, [2000] ICR 1354, [1999] 4 All ER 83

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.347726

Judges:

Morison J

Citations:

[2006] EWHC 785 (Comm)

Links:

Bailii

Cited by:

Appeal from – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.240346

EAT Unfair Dismissal: Automatically Unfair Reasons; Working Time Regulations: Holiday Pay and Health and Safety
The five Appellants appealed against the Tribunal’s decision that none of them had been automatically unfairly dismissed for health and safety reasons and three of them had not been dismissed at all but had resigned on protest at the dismissal of the other two – which dismissal the Tribunal found to be for refusing to attend their work site at the contractual time. One Appellant appealed against the rejection of his holiday pay claim.
Held:
(i) an amendment to the Notice of Appeal to allow reliance on s100(i)(c) for the first time at EAT level would not be permitted; s100(i)(c) raised a new case with new factual issues.
(ii) The Tribunal’s findings were not perverse or otherwise based on error of law.
(iii) The holiday pay claim failed because a sufficient payment had been made; that payment could not have been a payment in lieu of notice because the employee had not been dismissed but resigned; the payment was referable to holiday pay.

Judges:

Burke QC HHJ

Citations:

[2006] UKEAT 0424 – 05 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.240252

The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by a Court of Appeal decision which seems to the majority to conflict with a later analysis of the relevant statutory provision by the House of Lords. We think that in these circumstances we are justified in not following the decision of the Court of Appeal . . We also consider that it would be undesirable for us to leave in place a principle which the majority believe is now legally unsustainable, given that Tribunals will no doubt follow this decision pending a resolution of this issue by the Court of Appeal.’ The practice was no longer good law following Dunnachie. The Tribunal would have been neither obliged nor entitled to grant compensation for the full notice period as part of the unfair dismissal compensation.

Citations:

Times 03-Apr-2006, [2006] UKEAT 0572 – 05 – 0303

Links:

Bailii

Statutes:

Employment Rights Act 1996 88

Jurisdiction:

England and Wales

Citing:

Cited – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Scotts Company (Uk) Ltd v Budd EAT 5-Nov-2002
. .
Cited – Hilti (Great Britain) Ltd v Windridge EAT 1974
EAT The employer appealed against the tribunal’s decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period.
Held: The award was upheld. Lord . .
Cited – Tradewinds Airways v Fletcher EAT 1981
The employee, an airline pilot, was entitled to three months contractual notice. The Tribunal had awarded compensation for the full three months even although he had earned a salary from other employment during part of that period.
Bristow J . .
Cited – Vaughan v Weighpack Ltd NIRC 1974
(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. . .
Cited – Everwear Candlewick Ltd v Isaac EAT 2-Jan-1974
Sir John Brightman referred to Norton Tool, Stepek and Hilti and then said: ‘The principle behind these three cases is clear. If an employee is unfairly dismissed without due notice and without pay in lieu of notice, he is prima facie entitled to . .
Cited – TBA Industrial Products Ltd v Locke EAT 1984
The employee had been unfairly dismissed with 12 weeks pay in lieu of notice.
Held: The court re-affirmed the narrow principle of Norton Tool v Tewson. Browne Wilkinson J P said: ‘It seems to us that the decision in the Tradewinds [1981] IRLR . .
Cited – Hardy v Polk (Leeds) Ltd EAT 2-Feb-2004
EAT Practice and Procedure – Bias, misconduct and procedural irregularity
The amount of the respondent’s entitlement to pay in lieu will be relevant to the question of any compensatory award. . .
Cited – Isleworth Studios v Rickard EAT 1988
The claimant had on dismissal gone into business on his own account and earned some andpound;10,000 more than he would have done had he remained employed. The employer appealed the award of damages.
Held: The tribunal had erred in awarding . .
Cited – Babcock FATA Ltd v Addison CA 1987
The employee was unfairly dismissed for redundancy. He was given 5 weeks pay in lieu, a statutory redundancy payment and a severance payment under the employers’ own scheme. He did not obtain another job until well after his period of notice had . .
Cited – Cerberus Software Ltd v John Anthony Rowley CA 18-Jan-2001
Where a contract of employment gave the employee a right to six months notice but provided that the employer might pay salary in lieu, and the employee was wrongfully dismissed instantly, but found work within weeks, he was entitled to his full six . .
Cited – Puglia v C James and Sons EAT 24-Oct-1995
The EAT considered the effect of the receipt of benefits during a period of sickness when calculating loss of earnings, and whether a hearing was properly conducted without the presence of the parties.
Held: There is no procedural irregularity . .
Cited – Morgans v Alpha Plus Security Ltd EAT 17-Jan-2005
The Tribunal had given credit for the full amount of incapacity benefit which the employee had received during the notice period. He appealed on the grounds that it ought not to have done so. There was a conflict of authority on the point in the . .
Cited – Cerberus Software Ltd v J A Rowley EAT 14-Jul-1999
EAT Contract of Employment – Breach of Contract . .
Cited – Rubenstein and Another (T/A McGuffies Dispensing Chemists) v McGloughlin EAT 28-Dec-1995
Half only of invalidity benefit received by the employee during his period of notice was to be deducted from an unfair dismissal award. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.240254

EAT Contract of Employment: Sick Pay and Holiday Pay
The Employment Tribunal did not err in law when it construed the Claimants’ contracts based upon 1,930 annual hours in exchange for an annual salary as not including a right to an additional 22/24 days’ pay in respect of holidays.

Judges:

McMullen QC J

Citations:

[2006] UKEAT 0604 – 05 – 1703

Links:

Bailii

Employment

Updated: 05 July 2022; Ref: scu.240247

EAT Tribunal found (i) no transfer of undertaking between employer A, owned by B, and employer C owned by C and in part by B’s wife and (ii) employer A was not a stable economic entity. The appeal was based on alleged misdirection – which we did not accept – and, for the most part, on perversity arguments. The circumstances were certainly suspicious; the Tribunal took that into account; it reached a factual conclusion that there had been no transfer which were, on the findings, permissible options. Appeal dismissed.

Judges:

Burke J QC

Citations:

UKEAT/0300/05 and UKET/0550/05, [2006] UKEAT 0300 – 05 – 0102

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240239

EAT The Tribunal ought to have struck out the underlined words in paragraph 47 of the Amended Response, for which no permission to amend had been granted. In all other respects the Tribunal’s decision was correct.

Judges:

Richardson J

Citations:

[2006] UKEAT 0393 – 05 – 1703

Links:

Bailii

Employment

Updated: 05 July 2022; Ref: scu.240244

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 was highly arguable that a finding that disciplinary proceedings had been commenced in bad faith was incapable of being remedied on appeal and a failure to carry out a preliminary investigation could not be remedied on appeal. The question is whether the employer has proved that a particular allegation is the real reason for dismissal. Elias P said: ‘It does not follow . . that whenever there is misconduct which could justify a dismissal a Tribunal is bound to find that this is indeed the operative reason’ and
‘The EAT must respect the factual findings of the employment tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine tooth comb’ to subject the reasons of the employment tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the tribunal has essentially properly directed itself on the relevant law.’

Judges:

Elias P

Citations:

[2006] UKEAT 0057 – 06 – 3103, UKEAT/0057/06 and UKEAT/0130/06, [2006] IRLR 576

Links:

Bailii, EATn

Statutes:

Employment Rights Act 1996 98

Citing:

Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
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 – Timex Corporation v Thomson EAT 1981
The tribunal had found the employee claimant to have been unfairly dismissed when the employer dismissed for redundancy or reorganisation. Although there was a redundancy situation they were not satisfied that the employee was dismissed for that . .
Cited – Maund v Penwith District Council CA 1984
The employee alleged that he had been dismissed for trade Union activities. The Industrial Tribunal held that he had the burden of proving that. The EAT disagreed.
Held: The appeal against the decision of the EAT failed.
Griffiths LJ . .
Cited – Jacques v Amalgamated Union of Engineering Workers 1986
The rules of a Trades Union are not to be construed as if they were a statute but are ‘to be given a reasonable interpretation which accords with their intended meaning; bearing in mind their authorship, their purpose and the readership to which . .
Cited – Hamlet v General Municipal Boilermakers and Allied Trades Union 1987
Union rules should not be interpreted literally or like statutory provisions but in a looser and more benign way . .
Cited – Rowe v Radio Rentals Ltd 1982
It was not in general necessary that the manager hearing an appeal in a disciplinary matter should insulate himself from the manager who has recommended or implemented a dismissal, and treat himself as a judge hearing two contending parties. The . .
Cited – Paul v East Surrey District Health Authority CA 1995
Only in exceptional cases will different treatment of employees of itself amount to an unfairness. . .
Cited – Slater v Leicestershire Health Authority CA 1989
The appellant had been employed as a Staff Nurse. He was dismissed after being found to have slapped an elderly patient twice across the buttocks. That incident had been report to the Director of Nursing Services by another Nurse. He was suspended . .
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 by:

Cited – 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 . .
Cited – McCall v Northern Rail Ltd EAT 25-Jan-2007
EAT Unfair Dismissal – Reasonableness of dismissal
Practice and Procedure – 2002 Act and pre-action requirements
The Respondent dismissed the Claimant for three reasons. On appeal, two of the most . .
Cited – Dr Kuzel v Roche Products Ltd EAT 2-Mar-2007
EAT Unfair Dismissal – Automatically unfair reasons
Public Interest Disclosure
Section 103A of the Employment Rights Act 1996 inadmissible reason for dismissal – burden of proof – whether Protected . .
See Also – Brady v Norman QBD 20-Oct-2008
. .
Cited – Corus UK Ltd v Mainwaring EAT 22-Jun-2007
EAT Unfair Dismissal:
Reasonableness of dismissal / Contributory fault / Constructive dismissal
The Claimant was dismissed for misconduct, namely pretending that he was unfit to return to work when . .
Cited – Fleming v PFG Plant Hire Ltd NIIT 9-Apr-2009
. .
Cited – Readman v Devon Primary Care Trust EAT 1-Dec-2011
EAT Redundancy : Suitable Alternative Employment – Did the Employment Tribunal err in law in concluding that the Appellant had unreasonably refused an offer of alternative employment for her own reasons, when it . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.240243

EAT 10, 8R
Unlawful Deduction from Wages
Practice and Procedure; appellate jurisdiction

Judges:

Peter Clark J

Citations:

[2006] UKEAT 0460 – 05 – 3003

Links:

Bailii

Employment

Updated: 05 July 2022; Ref: scu.240248

EAT Contract of Employment – Incorporation into Contract – Appellant asserted ET was in error in holding he had been employed by R1 and not R2. On facts he believed he was entering into a contract with R2, but offer of employment was by R1. No error of law by ET. Appeal dismissed.

Judges:

His Honour Judge J R Reid QC

Citations:

UKEAT/0628/05, [2006] UKEAT 0628 – 05 – 2001

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240210

EAT The employee was made redundant while working a 3-day week, on one day of which she worked at home, after a fall at work. The redundancy pool consisted of the employee and one colleague only; the colleague had less experience in the industry although more experience with the employers. The selection exercise did not take into account the employees previous experience. The Tribunal found that the employers had failed to make reasonable adjustments in relation to the relevant exercise, in the provisions for working from home and in respect of alternative employment and that the employer had been unfairly dismissed in a flawed selection exercise, without proper consultation and efforts to find alternative employment. There was also a finding of part-time worker discrimination.
The Tribunal’s conclusions on the central issue, the selection exercise were flawed because their reasons for so concluding were insufficient, as were their reason for some of the conclusions as to working arrangements. We remitted the issues as to which we allowed the appeal to a fresh tribunal. The appeal as to consultation and alternative employment failed.

Judges:

J Burke QC

Citations:

[2006] UKEAT 0120 – 05 – 2701

Links:

Bailii

Employment

Updated: 05 July 2022; Ref: scu.240216

EAT Practice and Procedure – Striking-out/dismissal. – The parents of a child at a nursery where the claimant was employed complained to the respondent, the claimant’s employer, that she had struck their child. They and their child were interviewed by the respondent’s solicitor who promised to preserve their anonymity. He provided a report to the respondent which was copied to the claimant. The identities of the child and its parents were duly anonymised. The claimant was dismissed. She had been pregnant at the time and she claimed in respect of automatic unfair dismissal on grounds of pregnancy. She also asserted that her claim covered a claim for unfair dismissal simpliciter. At a case management hearing, a tribunal chairman had ordered disclosure of the identities of the parents and their child. The respondent appealed the order and the Employment Appeal Tribunal upheld the appeal in respect that it was not necessary for either aspect of the claimant’s claim that she know those identities. The issue of whether or not the claimant had in fact struck the child was irrelevant. In these circumstances, the tribunal should have been slow to interfere with the promise of anonymity. The interests of justice did not require that it be breached.

Judges:

The Honourable Lady Smith

Citations:

UKEATS/0069/05, [2006] UKEAT 0069 – 05 – 2001

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240208

EAT Unfair Dismissal: Reasonableness of Dismissal/Procedural Fairness/Automatically Unfair Dismissal
Whether Employment Tribunal in error in concluding that Claimant ‘did not know until a very late date that he would (suffer a loss of pay while off sick)’ when the evidence agreed to have been given was that he had known for nearly three months prior to his return to work, and the dismissing officer accepted that had she realised this, she might possibly not have dismissed. Employment Tribunal treating the factual issues which were for the employer to determine as their own to decide. Held in error.

Judges:

The Honourable Mr Justice Langstaff

Citations:

UKEAT/0321/05, [2006] UKEAT 0321 – 05 – 1701

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240221

EAT Practice and Procedure – Striking-out/dismissal. Practice and Procedure – damages for breach of contract
Owing to a misunderstanding between Chairman and advocate, claim for breach of contract treated as withdrawn when the advocate only conceded one head of damages was not reasonable. Claim for breach of contract reinstated.

Judges:

His Honour Judge Reid QC

Citations:

UKEAT/0545/05, [2006] UKEAT 0545 – 05 – 1201

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240209

The claimant received an email from his employers and resigned claiming unfair dismissal saying that it was repudiatory. The employers objected to the admission of the email into evidence saying that it was marked without prejudice and subject to contract. The claimant appealed.
Held: The email should have been admitted: ‘If the attachment did no more than set out settlement proposals, privilege would attach to it. But the e-mail plainly went further. It set out in clear terms what MSP would do in the absence of any response to the settlement terms. It was, in effect, an ultimatum; if you do not accept option 2 or option 3, option 1 will be imposed upon you. Option 1 was not in accordance with Mr Jamie’s existing contractual rights. ‘ The case was remitted to the tribunal for reconsideration.

Judges:

Richardson J

Citations:

[2006] UKEAT 0404 – 05 – 3101

Links:

Bailii

Citing:

Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Cantor Fitzgerald International v Callaghan and Others CA 21-Jan-1999
The failure or emphatic refusal by a company to pay the wages under the contract as agreed would normally amount to a fundamental breach and repudiation of the contract, which would allow the employee to act on the basis that he had been . .
Cited – Barke v Seetec Business Technology Centre Ltd CA 16-May-2005
Challenge to the lawfulness of the practice of the EAT in referring back to the IT deficient reasons with an invitation to expand upon them.
Held: The words ‘disposing of’ in the section meant ‘dealing with conclusively’ rather than . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Somatra Limited v Sinclair Roche and Temperley (a Firm) etc CA 26-Jul-2000
In an action between clients and their solicitors, the solicitors produced at an interlocutory hearing evidence derived from without prejudice discussions. The claimants applied for disclosure of all such documents, but this was rejected on the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.240212

EAT Unfair Dismissal: Mitigation of Loss and Public Interest Disclosure
The Tribunal found that, after dismissal, the employee had unreasonably ‘taken herself out of the world of work’ by enrolling on a 4 year university course and calculated her compensation for loss of earnings and loss of pension for unfair dismissal only to the start of that course without considering when, if she had acted reasonably, she would have obtained employment and at what rate etc. The Tribunal also considered only one of four aspects of the employee’s aggravated damages claim arising from the employer’s admitted subjecting her to detriment for making a protected disclosure.
Remission on both points to same Tribunal, which had heard the evidence or much of it. Remission to a new Tribunal disproportionate and unnecessary.

Judges:

Burke QC J

Citations:

[2006] UKEAT 0415 – 05 – 3101

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240222

EAT Practice and Procedure: Restriction of Proceedings Order/Vexatious Litigant
Litigant who had instituted 78 applications containing 80 claims, only two of which were successful, made subject to a Restriction Order. Court did not accept that he was entitled to make a claim that he had been discriminated against simply upon rejection at interview.

Judges:

Langstaff J

Citations:

[2006] UKEAT 0586 – 05 – 3101, UKEAT/0586/05

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240211

EAT Practice and Procedure – bias, misconduct and procedural irregularity; striking-out/dismissal – Lay member asked to recuse himself because he sat on PH in this case. Application refused. No appearance of bias. ET strike out order – no reasonable prospect of success. Misdirection as to test for instructive Unfair Dismissal. Strike-out inappropriate. Appeal allowed.

Judges:

Peter Clark J

Citations:

[2006] UKEAT 0530 – 05 – 0902, UKEAT/0530/05

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240235

EAT The claimant had worked as an adviser for the respondent identifying investment opportunities. He said he had been unfairly dismissed after disclosing that the company had overpaid for an investment. He now appealed against a finding that any disclosures were not made in good faith and were not qualifying disclosures. Though his dismissal had been found to be procedurally unfair, he was awarded nil damages for a 100% contribution to his dismissal. The EAT considered where the burden of proof lay in establishing whether a disclosure was made in good faith.
Held: The claimant’s appeal failed. It is for the Respondent to show that the Claimant acted in bad faith. However the factual findings made by the tribunal were not dependent on their mistaken view on the burden. They had found that the dismissal was not the result of the disclosures but because of the claimant’s misconduct.

Judges:

Peter Clarke J

Citations:

UKEAT/0288/05, [2006] UKEAT 0288 – 05 – 2701

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 103(A), Public Interest Disclosure Act 1998 5

Citing:

See Also – Bachnak v Emerging Markets Partnership (Europe) Ltd EAT 29-Jan-2002
Acceptance that case to go forward to full appeal. It was arguable that: ‘in the way set out its Extended Reasons [the tribunal] misdirected itself in law, in not holding that the terms and conditions of fixed term employment were, on their true . .
See Also – Bachnak v Emerging Markets Partnership (Europe) Ltd EAT 25-Mar-2003
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
See Also – Emerging Markets Partnership (Europe) Ltd v Bachnak CA 19-Dec-2003
The claimant asserted unfair dismissal. The company denied that he was an employee. The company now appealed against the decision of the EAT to grant the claimant’s appeal. The claimant had been an employee, but the arrangement had been varied so . .
Cited – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .
Cited – Street v Derbyshire Unemployed Workers’ Centre CA 21-Jul-2004
The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed . .
Cited – Lucas v Chichester Diocesan Housing Association Ltd EAT 7-Feb-2005
EAT Public Interest Disclosure – On the evidence and on the chronology presented to the Employment Tribunal there were no grounds for finding that the Claimant’s protected disclosures were not made in good faith. . .
Cited – GMB Union v M Fenton EAT 12-Oct-2004
EAT Sex Discrimination
S4(2) SDA 1975: was A’s allegation false and not made in good faith? The allegation was plainly false and the ET did not, or did not clearly, so find; but insofar as the ET concluded . .
Cited – Bryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.240201

EAT Unfair Dismissal: Contributory Fault and Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke
Quantum of compensation – employee said illness was aggravated in part from dismissal. Tribunal found dismissal unfair but employee would have been dismissed 13 months later for sickness absence. Tribunal did not address in its reasons employee’s contention that illness was in part a consequence of dismissal, even after being invited to give further reasons. Matter remitted to fresh Tribunal (Chairman having retired a year ago).

Judges:

Elias P J

Citations:

[2006] UKEAT 0350 – 05 – 3001

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240217

EAT Unfair Dismissal: Reasonableness of Dismissal and Compensation
Employment Tribunal correctly applied the objective test of the band of reasonable responses to the facts it found. Appeal against liability dismissed.
On the basic award of compensation, it did not err when it did not reduce the award by 50% as it had for contributory fault in respect of the compensatory award. It was aware of the different statutory provisions. Employment Rights Act 1996 s 122(2) is not regulated by loss as s 123(1) is but reflects redundancy pay. It was open to the Employment Tribunal to exercise its discretion not to reduce the award in the light of the possibility of redundancy had the dismissal not occurred. There is no restriction on what factors the Employment Tribunal hold to be a just and equitable reason for refusing to reduce. Impending redundancy at the time of the unfair dismissal canot be said to be an error of law.
The Employment Tribunal did not err in holding that had a fair procedure been adopted, as the employer accepted it was not, the employee would not have been dismissed, and there was an apt direct comparator for this purpose.
The Employment Tribunal erred in failing to apply its findings on the prospect of redundancy when considering Polkey v A E Dayton Services Ltd [1987] IRLR 503. This aspect is remitted to the Employment Tribunal and it will be at liberty to reconsider its finding as to the prospect of the employee obtaining new employment.

Judges:

McMullen QC J

Citations:

[2006] UKEAT 0447 – 05 – 0501

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240204

EAT Contract of Employment: Notice of Pay in Lieu and Damages for Breach of Contract
Issue of contractual interpretation and application on the facts to the circumstances of the employee’s dismissal. The Tribunal failed to give adequate reasons to show why the notice period should be one month rather than three (the issue left to them by an EAT decision).

Judges:

Langstaff J

Citations:

UKEAT/0661/05, [2006] UKEAT 0661 – 05 – 2001

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240223

EAT Unfair Dismissal: Reason for Dismissal including Substantial Other Reason:
Practice and Procedure: Appellate Jurisdiction / Reasons / Burns-Barke
ET did not state what acts or omissions constituted the misconduct in which they held the employer to have had a genuine belief based on reasonable grounds after a reasonable investigation. In the absence of this, the EAT could not know what the ET were evaluating, and the matter had to be remitted. An ET should always indicate the substance of that which the employer believed.
Following the application of the overriding objective into the Employment Tribunal Rules of Procedure 2001: there was no indefeasible right of a party to require the Tribunal to examine evidence which is of relevance, but may in the proper exercise of its discretion, exclude evidence which, although strictly relevant, is of peripheral relevance or is, for instance, repetitive.

Judges:

Langstaff J

Citations:

[2006] UKEAT 0568 – 05 – 2701, UKEAT/0568/05, [2006] All ER (D) 166

Links:

Bailii, EAT

Citing:

Cited – Snowball v Gardner Merchant EAT 1987
The employee claimed that she had been sexually harassed by her manager. In the course of her evidence the employers sought to cross-examine her as to her general attitude towards sexual matters, based on events which had occurred during the course . .
Cited – Rosedale Ltd v Sibley EAT 1980
The tribunal had ruled that a document sent by a Union District Secretary to head office claiming dispute benefit for the Claimant and other employees of the Appellant employer; although admissible in evidence at common law, would not be received . .

Cited by:

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

Employment

Updated: 05 July 2022; Ref: scu.240213

EAT Unfair Dismissal – Reasonableness of dismissal. – Employment Tribunal wrongly distinguished Securicor Ltd v Smith [1985] IRLR 356 CA and perversely found the employer did not act rationally when it treated employees, whose circumstances were different, differently.

Judges:

His Honour Judge Mcmullen QC

Citations:

[2006] UKEAT 0645 – 05 – 3001, UKEAT/0645/05

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240207

EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] IRLR 102 applied.
The Tribunal erred in law in holding that the Appellant was not working for the purpose of the Working Time Regulations 1998 during the whole time when she was on duty on call. SIMAP [2000] IRLR 845 and Landeshaupstadt Kiel v Jaeger [2003] IRLR 804 applied; South Holland District Council v Stamp (EAT/1097/02) not followed.,br />The Tribunal erred in law in holding that the Appellant was undertaking ‘unmeasured work’ for the purposes of the National Minimum Wage Regulations 1999.

Judges:

Richardson J

Citations:

[2006] UKEAT 0500 – 05 – 3101, UKEAT/0500/05, [2006] IRLR 514, [2006] ICR 510

Links:

Bailii, EAT

Statutes:

Working Time Regulations 1998 12, National Minimum Wage Regulations 1999

Citing:

Reconsidered – South Holland District Council v Stamp and 13 others EAT 14-Apr-2003
EAT National Minimum Wage . .
Cited – Sindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana ECJ 3-Oct-2000
Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health . .
Cited – Landeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
Applied – Gallagher and others v Alpha Catering Services Ltd CA 8-Nov-2004
The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and . .
Cited – British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) CA 2002
The employers provided ‘bank nurses’ for nursing homes and other institutions on an emergency basis, including a 24 hour telephone booking service. At night employees were based at home. The ‘duty nurse’ would answered a diverted phone call and then . .

Cited by:

Cited – Hughes v Jones and Another EAT 3-Oct-2008
EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.240215

EAT Redundancy: Protective Award
On the facts (on fresh evidence not available to the ET) here had been a proposal for more than 20 redundancies before the date of the Appellant’s dismissal and he was entitled to a 90 day protective award, there having been no attempt at consultation.

Judges:

His Honour Judge Reid QC

Citations:

[2006] UKEAT 0535 – 05 – 2601, UKEAT/0535/05

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.240220

The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user company’s appeal failed. The ET was entitled to hold that Mr Muscat had been an employee throughout the period of work for EIL and CandW. They did not misdirect themselves in law; they properly applied the guidance given in Dacas, which guidance was itself correct. ‘If ETs apply their minds to the possibility of an implied contract between the worker and end-user, there will be some cases in which they find that relationship, as in this present case. There will no doubt also be many cases in the future in which ETs will conclude that a worker in the triangular relationship is not an employee of the end-user. That may be because they find that he or she is an independent contractor.’

Judges:

Lady Justice Smith MR, Maurice Kay LJ

Citations:

Times 10-Apr-2006, [2006] EWCA Civ 220

Links:

Bailii

Statutes:

Employment Rights Act 1996 94(1) 230(1) 230(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Cable and Wireless Plc v Muscat EAT 17-Nov-2004
EAT Practice and Procedure – Bias, misconduct and procedural irregularity – Employment Tribunals and the Employment Appeal Tribunal are bound by the Decision of the Court of Appeal in Dacas v Brook Street Bureau . .
Approved – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Raymond Franks v Reuters Limited, First Resort Employment Limited CA 10-Apr-2003
The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – The Aramis CA 1989
The court considered the circumstances under which a contract might be implied: ‘As the question whether or not any such contract is to be implied is one of fact, its answer must depend upon the circumstances of each particular case – and the . .
Cited – Stevedoring and Haulage Services Limited v A M Fuller and others CA 9-May-2001
The claimants were stevedores whose contracts were intermittent. The employer denied that they were employees.
Held: There was no contract while the claimants were not at work. There was no overarching or global contract, and it was not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238927

EAT National Minimum Wage
Employment Tribunal correctly construed the relevant clause in a contract of employment as entitling the Claimant to be paid at the rate of the NMW, albeit, as an apprentice, he was excluded from the statutory right. Appellant had not produced evidence on appeal, as directed, to show a different conclusion.

Judges:

His Honour Judge Mcmullen QC

Citations:

UKEAT/0547/05, [2005] UKEAT 0547 – 05 – 1511

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

See Also – J P Garrett Electical Limited v Cotton; Woodward v Abbey National Plc (No 2) EAT 26-Jul-2005
EAT Practice and Procedure – Time for appealing.
Unlike in Midland Packaging v Clark [2005] 2 AER 66, the EAT fax receipt log was made available, by reference to which para 1.8.2. of the EAT Practice . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238816

EAT Practice and Procedure – Striking-out/dismissal – Contract of Employment: Damages for Breach of Contract
On Respondent’s application the Employment Tribunal struck out a variety of the Appellant’s claims, though the factual substratum remained to be investigated in connection with race discrimination and sex discrimination claims.
Held: ET correct to strike out claims that were out of time or otherwise hopeless but should not have struck out one very minor claim for travel expenses which was in time and could theoretically succeed even if the race and sex discrimination claims failed.
EAT Practice and Procedure – Striking-out/dismissal.

Judges:

His Honour Judge Reid QC

Citations:

UKEAT/0573/05, [2006] UKEAT 0573 – 05 – 1601

Links:

Bailii, EAT

Citing:

Cited – Hogg v Dover College EAT 1990
The claimant asserted unfair dismissal after his contract was changed to provide that his post as head of the history department would be part time. He had been ill, and the head teacher reduced his teaching periods. He accepted the change in . .

Cited by:

See Also – Edem v Egg Plc and Another EAT 26-Jun-2007
EAT Practice and Procedure – Striking-out/dismissal and Case management – Appeals against interim Judgments of Employment Tribunals were dismissed when the Employment Tribunal subsequently struck out the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238809

EAT Transfer of Undertakings – Transfer. The Appellant’s grounds of appeal are based on perversity and an error of law in the construction of the TUPE regulations.

Judges:

His Honour Judge Pugsley

Citations:

[2005] UKEAT 0354 – 05 – 2112, UKEAT/0354/05

Links:

Bailii, EAT

Employment

Updated: 05 July 2022; Ref: scu.238820

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 reasonable. Disciplined for that reason and resigned in protest and being disciplined. Was it a protected disclosure? Was there a constructive dismissal? If so, was automatically or unfair or in any event unfair under general unfair dismissal principles?

Judges:

The Honourable Mr Justice Elias

Citations:

UKEAT/0648/05, [2006] UKEAT 0648 – 05 – 0702

Links:

Bailii, EAT

Cited by:

Appeal from – 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. . .
At EAT – 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. . .
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. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238794

EAT Unfair Dismissal – procedural fairness/automatically unfair dismissal
Appellant was dismissed for (allegedly) serious misconduct. ET held disciplinary process flawed but remedied by an appeal which looked only at ‘new’ material. ET held dismissal within range of reasonable responses in light of matters not considered by the employer.
Held: ET could not properly have held appeal remedied original procedural defects. Appellant was unfairly dismissed. Case remitted to a new tribunal to consider compensation and contribution.

Judges:

His Honour Judge Reid QC

Citations:

UKEAT/0454/05, [2006] UKEAT 0454 – 05 – 2102

Links:

Bailii, EATn

Employment

Updated: 05 July 2022; Ref: scu.238804

EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, or whether the just and equitable discretion under DDA Schedule 3 Part 3 may be exercised. It is the latter.
Discretion to permit/refuse amendment.
EAT Practice and Procedure – Striking-out/dismissal.
EAT Practice and Procedure – 2002 Act and pre-action requirements.
EAT Practice and Procedure – Striking-out/dismissal.

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0475/05, [2006] UKEAT 0475 – 05 – 2202, UKEAT/0554/05, [2006] IRLR 248

Links:

Bailii, EATn, EATn

Statutes:

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

Citing:

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 – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Ali v Office of National Statistics CA 21-Oct-2004
The court set out the proper approach to an application for leave to amend an originating application before the Employment Tribunal. . .
Cited – Mark Warner Ltd v Aspland EAT 8-Dec-2005
EAT Practice and Procedure
Statutory Grievance Procedure. Whether express intention to lodge grievance required. Covering all claims. Without prejudice letters. Whether solicitor may act as party’s agent. . .
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 – Galaxy Showers Ltd v Wilson EAT 10-Nov-2005
The EAT upheld the view of an ET that a resignation letter giving notice of termination was a sufficient compliance with the requirement to set out the grievance in writing. If an employee had raised a grievance about alleged misbehaviour by the . .

Cited by:

Cited – Abram v Yellow Pages Sales Ltd NIIT 10-Jun-2008
The tribunal does not have jurisdiction to consider the claimant’s complaint of race discrimination. The claimant did not raise a grievance with the first-named respondent and present his complaint with the first-named respondent within the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238797

EAT Leave to amend claim to include certain unfair dismissal complaints rejected by Tribunal Chairman. Attempt made before another Chairman to contend that the amendment should be permitted because it merely gave a label to what had already been identified in the body of the claim. This was a fresh argument. Ought the second Chairman to have reconsidered the original Chairman’s decision? Observation made on the distinction between review and reconsideration of Tribunal case management rulings and the circumstances where reconsideration is permissible.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

UKEAT/0074/06, [2006] UKEAT 0055 – 06 – 2302, UKEAT/0055/06, [2006] ICR 655

Links:

Bailii, EAT

Citing:

Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .

Cited by:

Cited – Tradition Securities and Futures Sa and Another v Times Newspapers Ltd and others EAT 10-Nov-2008
EAT PRACTICE AND PROCEDURE: Restricted reporting order
Restricted Reporting Order relating to allegations of sexual misconduct – Whether Tribunal entitled to vary order in order to permit naming of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238795

Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time workers had substantially similar contract and did substantially similar work. What was meant by similarity in this case had to be tested in the light of the Directive looked at purposively.

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance

Citations:

[2006] UKHL 8, [2006] ICR 365, [2006] 2 All ER 171, [2006] IRLR 367

Links:

Bailii

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) 2(3), Council Directive 97/81/EC, Employment Relations Act 1999 19

Jurisdiction:

England and Wales

Citing:

Cited – Angestelltenbetriebsrat Der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse ECJ 20-May-1999
Where two groups worked doing similar work, but one had superior qualifications, those qualifications could justify a pay differential. They were not to be treated as doing the same work. . .
Cited – Wippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
At EAT (1) – B R Matthews and others v Kent and Medway Town Fire Authority Royal Berkshire Fire and Rescue Service the Secretary of State for the Home Department EAT 29-Apr-2003
EAT Working Time Regulations . .
At EAT (2) – Matthews and others v Kent and Medway Towns Fire Authority and others EAT 7-Aug-2003
. .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
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 . .
Appeal from – Matthews and others v Kent and Medway Towns Fire Authority and others CA 2-Jul-2004
Part time retained firefighters claimed discrimination under the Regulations when their conditions of service were compared with those of full-time firefighters. They appealed a finding that they had been employed under different types of contract . .

Cited by:

Cited – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238773

EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act 1996. Whether on the facts it substituted its own view of the occurrence and quality of misconduct for that of the employer. Whether it was appropriate to determine an issue between the parties as to whether the conduct of the claimant had contributed to his dismissal by simply saying it had not done so, without giving any further reasoning to support that view.

Judges:

The Honourable Mr Justice Langstaff

Citations:

[2006] UKEAT O412 – 05 – 1801, UKEAT/0412/05/SM

Links:

Bailii, EATn

Statutes:

Employment Rights Act 1996 98

Jurisdiction:

England and Wales

Citing:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Cited – Tran v Greenwich Vietnam Community Project CA 25-Apr-2002
The applicant had appealed the dismissal of his case for unfair dismissal. His notice of appeal did not request extended reasons from the tribunal, nor challenged the adequacy of the tribunal’s reasoning. At the EAT he sought to argue that the . .
Cited – Strouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
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 – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238289

EAT Contract of Employment – Damages for breach of contract – The Tribunal Chairman erred in law in concluding that Mrs Verdin’s breach of contract claim should be dismissed.
Rule 25 of the Employment Tribunal Rules 2004 is to be construed in the light of Ako v Rothschild Asset Management [2002] IRLR 348.
A claim should be dismissed if (a) the Claimant is intending to abandon it or (b) if the Claimant is intending to resurrect it, it would be an abuse of the process to allow that to occur.
The Tribunal may dismiss part of a claim on withdrawal.

Judges:

His Honour Judge Richardson

Citations:

UKEAT/0538/05, [2005] UKEAT 0538 – 05 – 2112, [2006] ICR 396, [2006] IRLR 339

Links:

Bailii, EATn

Statutes:

Employment Tribunal Rules 2004 25

Jurisdiction:

England and Wales

Citing:

Cited – Rothschild Asset Management Limited v Ako CA 1-Mar-2002
The applicant had, in earlier proceedings before the Employment Tribunal, withdrawn issues she had raised. She now sought to pursue them, and the respondent asserted that she was estopped from doing so, and that the matter was res judicata. The . .

Cited by:

Cited – Fox and Others v Bassetlaw District Council EAT 16-Jan-2013
EAT Practice and Procedure : Striking-Out or Dismissal – Equal pay claim withdrawn, to be replaced by a fresh equal pay claim. Whether first claim ought to be dismissed under rule 25(4) and second claim an abuse . .
Cited – Thomas Cook Airline Services Ltd v Wolstenholme EAT 16-Jan-2013
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Employment Tribunal proceedings withdrawn; High Court proceedings intimated. Application to dismiss under ET R25(4) rejected by Employment Judge. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238281

EAT The appellant sought to set aside the decision of the Employment Tribunal on grounds of (a) apparent bias of the Employment Tribunal because of alleged discussions which took place in the absence of the appellant between the respondent’s counsel and the Tribunal while the Tribunal was deliberating and (b) the failure of the Employment Tribunal to grant the appellant’s application for an adjournment on the first day of the hearing.
This appeal is dismissed because it was found after considering the written and oral evidence (a) that no meeting took place in the absence of the appellant between the respondent’s counsel and the Tribunal while the Tribunal was deliberating and (b) that an adjournment was not sought as alleged by the appellant on the first day of the hearing.

Judges:

Silber J

Citations:

[2005] UKEAT 650 – 04 – 2610

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.238256

EAT Unfair Dismissal: Reason for Dismissal and Reasonableness of Dismissal; Practice and Procedure: Bias, Misconduct, and Procedural Irregularity
Challenge to finding of finding of unfair dismissal – over 50 grounds lacking virtually every conceivable error. Include bias. Found that there were some defects in the decision.

Judges:

The Honourable Mr Justice Elias

Citations:

UKEAT/0514/05/RN, [2005] UKEAT 0514 – 05 – 2010

Links:

Bailii, EATn, 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: 05 July 2022; Ref: scu.238186

EAT Practice and Procedure – Appearance/Response – Review of default judgment. Construction of ET Rule 33 (5) and (6). Need to consider balance of prejudice in exercise of discretion (Pendragon v Copus).

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0652/05, [2005] UKEAT 0652 – 05 – 0912

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.238182

EAT Rule 25 of The Employment Tribunals Rules of Procedure 2004
(i) Does an employment tribunal have jurisdiction to set aside a notice of withdrawal of a claim given under Rule 25(2) of The Employment Tribunals Rules of Procedure 2004? Held, that it does not.
(ii) Was the Chairman’s decision to order the claimant to pay the respondent the latter’s costs of the application for such setting aside a perverse one? Held, that it was not.

Citations:

[2006] UKEAT 0581 – 05 – 2001

Links:

Bailii

Statutes:

Employment Tribunals Rules of Procedure 2004 25

Jurisdiction:

England and Wales

Citing:

See Also – Khan v Heywood and Middleton Primary Care Trust EAT 9-Dec-2005
EAT Practice and Procedure – Withdrawal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238251

EAT Practice and Procedure – Bias, misconduct and procedural irregularity. One of the lay members appeared to be asleep. Parties raised the issue with Tribunal and then agreed to continue the hearing. The lay member then appeared to resume his slumbers. No further objection made at the hearing but the losing employee, then raised issue as ground of appeal. Re-hearing ordered following Stansbury v Datapulse plc.

Judges:

His Honour Judge Reid QC

Citations:

UKEAT/0390/05, [2006] UKEAT 0390 – 05 – 1301

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – J M Stansbury v Datapulse Plc Troy Holding International Plc EAT 8-May-2003
EAT Practice and Procedure – Bias, misconduct and procedural irregularity . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.238250

Citations:

[2004] UKEAT 0639 – 04 – 0311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.221506

Citations:

[1998] UKEAT 27 – 98 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.206553

Citations:

[1999] UKEAT 1344 – 98 – 2403

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Awad v British Broadcasting Corporation EAT 22-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.204905

Citations:

[1999] UKEAT 1322 – 98 – 2403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.204933

The tribunal outlined the correct approach to article 8 of the regulations: ‘Regulation 8, however, is of significance in the present case. Regulation 8(1) provides for the case where an employee either of the transferor or the transferee is dismissed, whether before or after the date of transfer. If the reason or principal reason for the dismissal is the transfer or a reason connected with it the dismissal is deemed to be automatically unfair. Prima facie the applicants fall within this provision. It is necessary, however, to consider the terms of regulation 8(2).’

Citations:

[1985] ICR 66

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 8

Jurisdiction:

England and Wales

Cited by:

Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.214600

EAT Contract of Employment – Wrongful dismissal.

Judges:

His Honour Judge Burke QC

Citations:

[2003] UKEAT 0443 – 02 – 0804, UKEAT/0443/02

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.202304

The EAT considered the decision in Mansi: ‘Looked at as a whole, paragraph 17(5) [that is the paragraph then in force] is quite clearly intended to be a comprehensive provision to cover changes in the composition of those who comprise an ’employer’ in cases of partnership, personal representatives or trustees. We think there is no reason for taking the view that the legislature intended different considerations to apply to partners from those applying to personal representatives or trustees. It is only because the word ‘partner’ has the particular attribute of ‘sharing with another’ that the observations of Sir John Donaldson have point. It is permissible, where the context so allows, to construe words used in the plural as including the singular. The clear indication, we think, of sub-paragraph (5) is that any change in the partners (which might include, for example, the retirement of one of two partners) is not to break the continuity of the period of employment. Where the sub-paragraph says ‘shall count as a period of employment with the partners’ what is meant is ‘with the partners or any one of them who was previously the employer in his capacity of partner in the organisation, trade or business, as the case may be’. So we would have declined to follow the observations in Harold Fielding Ltd v Mansi [1974] ICR 347.’ and ‘Where the sub-paragraph says ‘shall count as a period of employment with the partners’ what is meant is ‘with the partners or any one of them who was previously the employer in his capacity of partner in the organisation, trade or business, as the case may be.’

Judges:

Beldam J

Citations:

[1985] ICR 389

Jurisdiction:

England and Wales

Citing:

Obiter – Harold Fielding Ltd v Mansi NIRC 1974
An employee had been employed by two partners and later by one of them.
Held: Mr Mansi could not bring himself within the provision because: ‘Where one of two partners leaves the partnership, there are no partners, but only a sole proprietor, . .
Applied – Allen and Son v Coventry EAT 1980
. .

Cited by:

Cited – Bower v Stevens and Another CA 6-Apr-2004
The claimant had been employed by the respondents, partners in a former firm of solicitors. On the retirement of one partner, the practice was continued by the sole remaining partner, who claimed that the dissolution broke the continuity of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.197757

EAT Practice and Procedure – Appearance

Judges:

His Hon Judge Ansell

Citations:

UKEAT/897/03, [2004] UKEAT 0897 – 03 – 0602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.194448

EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke.
Four cases of delay in promulgation of ET decisions. Three allowed (7.5 months, 12 months, 14.5 months) and one dismissed (4 months). Delay does not necessarily lead to rehearing (that in itself is bound to compound the delay and injustice). Test is whether decision (or part of it) rendered unsafe by delay: inspection of Decision for errors will not pay the usual deference to the decision of the Industrial jury.
Mtize: only (surviving) claim for victimisation remitted: Connex: all three discrimination claims remitted: Kwamin: one of victimisation claims remitted with cross-appeal issue of extension of time: Martin: dismissed.
The EAT gave guidance on steps to be taken after a delay in handing down a judgment. Burton J said: ‘The Appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal i.e. necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity, but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay.
Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called ‘trawling’ through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott’s use of the words ‘probably or even possibly’, that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal, and the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal’s decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision.

Judges:

The Honourable Mr Justice Burton (P)

Citations:

UKEAT/710/03, [2004] UKEAT 0564 – 03 – 0203, UKEAT/564/03

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

Cited – Gardiner Fire Ltd v Jones Thd Manufacturing Ltd (Third Party) CA 20-Oct-1998
A delay of 22 months between a hearing and the handing down of a judgment is quite intolerable. Judges creating such delays will in future be liable to such steps as could properly be taken by those in authority over them. Mechanisms had been put in . .

Cited by:

Appeal from – Bangs v Connex South Eastern Ltd CA 27-Jan-2005
The failure of a tribunal to promulgate its decision was a matter of fact not of law, and could not therefore itself be a ground of appeal to the EAT. The EAT had allowed an appeal on the fair trial provision of the Convention. A failure to . .
Cited – Olwa v North Glasgow University Hospitals NHS Trust, McGinley EAT 22-Mar-2004
EAT Race Discrimination – Direct
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 July 2022; Ref: scu.194441

The court was asked as to about the right of an employee to take time off without pay to perform duties as a magistrate.

Judges:

His Hon Judge Mcmullen QC

Citations:

[2003] EAT 811 – 02 – 2905, [2003] UKEAT 811 – 02 – 2905, EAT811/02

Links:

Bailii, Bailii, EAT

Statutes:

Employment Rights Act 1996 50(1)

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.189456

EAT Practice and Procedure – Bias, misconduct and procedural irregularity
EAT Practice and Procedure – Amendment

Judges:

His Hon Judge Mcmullen QC

Citations:

EAT/453 03, [2003] EAT 0453 – 03 – 2409, UKEAT/453/03/MAA, [2003] UKEAT 0453 – 03 – 2409

Links:

Bailii, Bailii, EAT, EAT

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.188370

EAT Unfair Dismissal – Polkey deduction

Judges:

His Hon Judge Prophet

Citations:

EAT/23/03, [2003] EAT 0023 – 03 – 2904, [2003] UKEAT 0023 – 03 – 2904

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 05 July 2022; Ref: scu.185786