Category: Employment

Gefco UK Ltd v J S Oates Car and Delivery Co Ltd: EAT 17 Jun 2005

EAT TUPE
Employment Tribunal correctly applied relevant European Court of Justice authorities in assessing the Spijkers factors and holding there was a relevant transfer of part of an undertaking.

Judges:

McMullen QC J

Citations:

[2005] UKEAT 0014 – 05 – 1706

Links:

Bailii

Citing:

Cited – Spijkers v Gebroeders Benedik Abattoir ECJ 18-Mar-1986
ECJ Social policy – approximation of laws – transfers of undertakings – safeguarding of employees’ rights – Directive no 77/187 – transfer – meaning
(Council Directive no 77/187, art. 1(1).
The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.229187

Fergusson and Another v Shepherd Neame Brewery Ltd: EAT 28 Apr 2005

EAT Claimants complained of constructive dismissal by reason of breach of the implied term of trust and confidence. The Employment Tribunal looked for a ‘continuous course of conduct’ – as constituting the breach rather than considering the cumulative effect of the Respondent’s conduct.

Judges:

Serota QC J

Citations:

[2005] UKEAT 0859 – 04 – 2804

Links:

Bailii

Employment

Updated: 01 July 2022; Ref: scu.229182

Harding v Hampshire County Council: EAT 10 May 2005

EAT Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s investigation; they had relied almost entirely on evidence compiled by the police and had not re-investigated. The Employment Tribunal found that the investigation was reasonable. Held that the Employment Tribunal had correctly directed itself as to law and had reached a decision on facts which was open to it, having considered A v B. A v B does not require a re-investigation in every case or lay down that an employer in such a case may not rely on the police evidence; whether the employer has in so doing acted reasonably is a matter of fact in each case.

Judges:

Burke QC J

Citations:

[2005] UKEAT 0672 – 04 – 1005

Links:

Bailii

Citing:

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 – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
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 . .
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.229184

Imperial Tobacco Ltd v Wright: EAT 22 Jul 2005

EAT Whether the Employment Tribunal Chairman misdirected himself in concluding that it was not ‘reasonably practicable’ for the unfair dismissal complaint to be presented before the end of the three month period specified in section 111 of the Employment Rights Act 1996.

Judges:

Rimer J

Citations:

[2005] UKEAT 0919 – 04 – 2207

Links:

Bailii

Statutes:

Employment Rights Act 1996 111

Jurisdiction:

England and Wales

Employment

Updated: 01 July 2022; Ref: scu.229192

Unison v Gallagher: EAT 13 Jun 2005

EAT Appellant was disciplined by her Union and debarred from any union office for 5 years. The Union subsequently determined that persons subject to penalties including debarring from office should not be entitled to attend the National Delegate Conference as members of the public. This was a decision made to preserve order following disturbances the previous year. Appellant complained to the Certification Officer under Section 108A TULR(C)A 1992. He upheld her complaint. On appeal: held that the Union’s decision was not a disciplinary penalty imposed on Ms Gallagher and her complaint should have been dismissed.

Judges:

His Honour Judge J R Reid QC

Citations:

UKEAT/0280/05, [2005] UKEAT 0280 – 05 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 July 2022; Ref: scu.229160

Criddle v Epcot Leisure Ltd: EAT 24 Jun 2005

EAT Practice and Procedure – Costs. 2004 Employment Tribunal Rules – transitional provisions – interaction between old costs rule
(R14. 2001 Rules) and sanction for non-payment of costs under R.13(2) 2004 Rules. Two stage process for costs order under old R.14.

Judges:

His Honour Judge Peter Clark

Citations:

[2005] UKEAT 0275 – 05 – 2406, UKEAT/0275/05 and 0276/05

Links:

Bailii, EAT

Employment

Updated: 01 July 2022; Ref: scu.229244

Bernard Matthews Ltd v Mack: EAT 29 Jul 2005

EAT Unfair Dismissal – Reasonableness of dismissal. – Appellant dismissed Respondent for alleged breaches of his managerial duty and/or aiding and abetting fraud. Employment Tribunal held the dismissal process was unfair, his breach of managerial duties was small and it had no proper reason to believe him guilty of aiding and abetting fraud. It further held that in relation to the alleged breach of managerial duty the employer had no genuine belief in the existence of the breach. Appellant appealed asserting the Employment Tribunal had failed to give adequate reasons as to why it had disregarded an apparent confession.
Held: the Employment Tribunal held there had been no such confession and had given adequate reasons for so holding. Appeal dismissed.

Judges:

His Honour Judge J R Reid QC

Citations:

[2005] UKEAT 0177 – 05 – 2907, UKEAT/0177/05

Links:

Bailii, EAT

Employment

Updated: 01 July 2022; Ref: scu.229189

British Bakeries Ltd v Nascimento: EAT 24 May 2005

EAT Unlawful Deduction from wages and Working Time Regulations – Interesting point on C/M alone jurisdiction to consider WTR points on ‘Wages Act’ claim. See Ainsworth (CA). Jurisdiction of Employment Appeal Tribunal Judge alone to consider substantive WTR argument.

Judges:

His Honour Judge Peter Clark

Citations:

[2005] UKEAT 0888 – 04 – 2405, UKEAT/0888/04

Links:

Bailii, EAT

Employment

Updated: 01 July 2022; Ref: scu.229243

Krasner (Administrator of Globe Worsted Company Ltd and Huddersfield Fine Worsteds Ltd.) v Mcmath (Representing All Employees of the Companies): ChD 27 Jul 2005

Judges:

Peter Smith J

Citations:

[2005] EWHC 1682 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Krasner v McMath; in Re Huddersfield Fine Worsteds Limited CA 12-Aug-2005
The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Employment

Updated: 01 July 2022; Ref: scu.229037

The Trustees of Mama East African Women’s Group v J Dobson: EAT 23 Jun 2005

EAT Unfair Dismissal and Public Interest Disclosure – PIDA Employment Tribunal made firm findings of fact connecting dismissal to protected disclosure and its judgment was upheld. Nor did it err in the approach to the assessment of compensation. Respondent could not rely on its own wrongful act in orchestrating opposition to Claimant to reduce or cap her compensation and say she would have been dismissed anyway.

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0219/05, [2005] UKEAT 0219 – 05 – 2306, UKEAT/0220/05

Links:

Bailii, EAT

Employment

Updated: 01 July 2022; Ref: scu.229158

Pendragon Plc T/A CD Bramall Bradford v Copus: EAT 11 Jul 2005

EAT Practice and Procedure
Response served by Respondent out of time and judgment in default entered. Chairman found that pursuant to Rule 33 of the new Rules he had no discretion to review the default judgment and allow an extension of time if no good reason for the delay was put forward. If he had had a discretion, given the presence of merit in the response, he would have granted the extension.
Held: that the principles laid down by Mummery P in Kwik Save v Swain [1997] ICR 49 still apply under the new Rules, namely that, although the reasons for delay must be considered and there must be shown to be merit in the proposed defence, the discretion is a broad just and equitable one.
Burton P applied Kwik Save, concluding: ‘In any event, as I commented above, I note the caveat that the chairman himself put forward – ‘in almost all cases’ – which makes any such argument difficult to accept. It is quite plain that the wording of rule 33(6) is not, as the chairman concluded it was, one which renders the absence of a good reason determinative of an application. It simply makes it a matter which the tribunal considering an extension must have regard to. But, it does not in my judgment rule out consideration of all the other matters, which inevitably must be considered on a discretionary decision by the tribunal, including, but not limited to, the reasonable prospect of success.’

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/0317/05, [2005] UKEAT 0317 – 05 – 1107, [2005] ICR 1671

Links:

Bailii, EATn

Citing:

Cited – Moroak T/A Blake Envelopes v Cromie EAT 19-Apr-2005
moroak_cromieEAT2005
EAT Response lodged at the Employment Tribunal 44 minutes late and the Employment Tribunal ordered that the Respondent could take no part in the proceedings and refused to review that order on the basis it had no . .
Still good law – Kwik Save Stores Ltd v Swain EAT 1997
An appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors.
When considering barring a party for . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.229157

Murray v Leisureplay Plc: CA 28 Jul 2005

The court considered the extent to which the content of negotiations leading up to the signing of a contract were admissible. Arden LJ said: ‘Lord Dunedin in the Dunlop case makes the point that, although the issue is one of construction, the court is not confined to the terms of the agreement and may look at the ‘inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not at the time of the breach . . ‘. In my judgment, the inherent circumstances to which the court may have regard extend beyond those which may be adduced in evidence for the purposes of determining the true interpretation of the agreement under the well known test in the Investors’ Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. But the purpose of adducing that evidence is not so that the parties can demonstrate that they agreed to opt out of the remedies regime provided by the common law but rather that the reasons that they had for doing so constitute adequate justification for the discrepancy between the contractual measure of damages and that provided by the common law.’
The claimant’s employment contract provided for payment of a year’s gross salary, pension contributions and other benefits in kind if his employment were determined without one year’s notice. The defendant argued that the clause was unenforceable as a penalty, since it provided for the payment of a greater amount than could conceivably have been recovered by the claimant as damages for breach of contract.
Held: The clause was not a penalty.
Buxton LJ (and Clarke LJ) said that the two alternatives, deterrent penalty or genuine pre-estimate of loss, are indeed alternatives which underlie the requirement that in order to be enforceable the clause should be compensatory rather than deterrent. However, the court should take a broad view of the matter and he deprecated excessive concentration on the difference between the amount payable under the clause and the measure of damages recoverable at common law, because it overlooked the principal test formulated by Lord Dunedin in Dunlop by reference to extravagance and unconscionability.

Judges:

Lord Justice Buxton, Lady Justice Arden Lord Justice Clarke

Citations:

[2005] EWCA Civ 963, [2005] IRLR 946

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Appeal from – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .

Cited by:

Appplied – General Trading Company (Holdings) Ltd v Richmond Corporation Ltd ComC 3-Jul-2008
. .
Cited – Azimut-Benetti Spa (Benetti Division) v Healey ComC 3-Sep-2010
The claimant sought summary judgment under a guarantee. The defendant said that the liquidated damages clause under which the claim was made was a penalty clause and unenforceable.
Held: The request for summary judgment was granted.
Cited – Cleeve Link Ltd v Bryla EAT 8-Oct-2013
EAT Unlawful Deduction From Wages – The principles enunciated in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 1979 and re-stated in Lordsvale Finance PLC v Bank of Zambia [1996] QB 752, . .
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 01 July 2022; Ref: scu.229093

Rose v Dodd: CA 27 Jul 2005

The Law Society had intervened in the claimant’s employer’s solicitors practice. The claimant appealed refusal of an award of a redundancy payment.
Held: The intervention did not necessarily bring to an end the employer’s business, and therefore there was no necessary redundancy situation implied only because of the intervention. The contracts of employment were not frustrated by a temporary interruption in the supply of services by the employer.

Judges:

Lord Phillips of Worth Matravers MR, Waller LJ, Mummery LJ

Citations:

[2005] EWCA Civ 957, Times 16-Aug-2005

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Citing:

Appeal from – Rose v Dodd EAT 30-Nov-2004
. .
Cited – Brace v Calder 1895
The dissolution of the employing partnership brings a contract of employment to an end.
Rigby LJ said: ‘a contract to serve four employers cannot, without express language, be construed as being a contract to serve two of them . . the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 01 July 2022; Ref: scu.229028

Copsey v WWB Devon Clays Ltd: CA 25 Jul 2005

The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, so far as working hours are concerned, an employer is entitled to keep the workplace secular. In such cases an employee is not in general entitled to complain that there has been a material interference with his Article 9 rights.’ A reasonable employer, acting fairly was entitled to change his work practices.

Judges:

Mummery, Rix, Neuberger LJJ

Citations:

[2005] EWCA Civ 932, Times 25-Aug-2005, [2005] 1CR 1789, [2005] IRLR 811

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Jurisdiction:

England and Wales

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 – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Bell v The Chief Constable of Greater Manchester Police CA 19-Jul-2005
The claimant had sued over the way he was treated by the respondent in a fraud investigation. The court had dismissed his claims for wrongful arrest and false imprisonment. A prosecution had been commenced but dropped. The judge had held the arrest . .
Cited – Stedman v United Kingdom ECHR 9-Apr-1997
(Commission) The applicant alleged that her dismissal for refusal to work on Sundays constituted a violation of her freedom to manifest her religion in worship, practice and observance, contrary to Article 9.
Held: The Commission first had to . .
Cited – Ahmad v United Kingdom ECHR 1981
(Commision) The applicant was a devout Muslim. His religious duty was to offer prayers on Fridays and to attend a mosque if possible. He was employed as a full time primary school teacher. He complained that he was forced to resign because he was . .
Cited – Konttinen v Finland ECHR 3-Dec-1996
(Commission) The applicant was a civil servant and a Seventh-day Adventist. He was dismissed for his refusal to continue working after sunset on Fridays. His contract required him to work on Friday evenings after sunset.
Held: The claim was . .
Cited – Ahmad v Inner London Education Authority EAT 1976
The appellant was a moslem junior school teacher. The Authority appealed an acceptance of his claim for unfair dismissal, having left his employment because he was not given time off to attend the mosque on Fridays. The Tribunal considered whether, . .
Cited – Ahmad v Inner London Education Authority CA 1977
The appellant said that his human rights were infringed when, as a moslem, he was refsued time off from his work as a primary school teacher to attend prayers at the mosque on Fridays. He had subsequentlly been re-instated part-time, but complained . .
Cited – SB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
Cited – Kalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .
Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Appeal from – Copsey v WWB Devon Clays Ltd EAT 26-Nov-2003
EAT Disability Discrimination – Disability . .

Cited by:

Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – McFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 01 July 2022; Ref: scu.228994

Forshaw v Archcraft Ltd: EAT 13 Dec 2004

Dismissal for ‘some other substantial reason’ – employees refusal to sign new contracts.

Judges:

The Honourable Mr Justice Rimer

Citations:

UKEAT/0677/04, [2004] UKEAT 0677 – 04 – 1312, [2006] ICR 70

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 98(1)(b)

Cited by:

Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.228679

Laing v Manchester City Council: EAT 16 Nov 2004

EAT Practice and Procedure – Case Management – ET Chairman adjourned case without reference to claimant using his powers under new ET Rule 12. The ET, however, failed to comply with R12.2 and did not notify claimant of his right of his right to apply to vary or discharge. Had this been done claimant would have responded and the order would almost certainly have been revoked.

Judges:

His Honour Judge Serota QC

Citations:

[2004] UKEAT 0830 – 04 – 1611, UKEAT/830/04

Links:

Bailii, EAT

Employment

Updated: 01 July 2022; Ref: scu.228662

Khan v Royal Mail Group Plc: EAT 30 Sep 2004

Practice and Procedure – There is no reasonable prospect of success in an appeal against refusal to exercise discretion to extend time for an appeal under Rule 21 (1) and 37 (1) when it is common ground that UAE and Aziz principles apply and no explanation was given for solicitors’ failure, a fortiori in an appeal on a limitation point. Cooke v SoS would inform the CA’s approach to the judgment of this specialist tribunal.

Judges:

McCitations: [2004] UKEAT 0893 – 04 – 3009

Links:

Bailii

Citing:

Cited – Mock v Inland Revenue EAT 1-Mar-1999
In the context of the time for appealing to the EAT under Rule 3(3) EAT Rules 1993, as amended, ‘sent’ referred to the date appearing on the ET ‘decision’.
Morison P said: ‘Industrial Tribunal chairmen are required to produce reasons. When . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.228654

Southwark Carers v Parsons: EAT 9 Dec 2004

EAT Practice and Procedure
An Employment Tribunal Chairman had no power on remission by the EAT of one point of an appeal to make a Decision different from that made by the first Chairman and not appealed.

Judges:

McMullen QC HHJ

Citations:

[2004] UKEAT 0775 – 04 – 0912

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 July 2022; Ref: scu.228693

Douglas v Manchester City Council and Another: EAT 28 Sep 2004

EAT Race Discrimination – Victimisation – Whether the Appellant was victimised by reason of previous litigation against the Respondent and others and whether there was direct and / or indirect discrimination on grounds of race.
EAT Race Discrimination – Victimisation.

Judges:

Her Honour Judge Wakefield

Citations:

[2004] UKEAT 0839 – 03 – 2809, UKEAT/0839/03

Links:

Bailii, EAT

Discrimination, Employment

Updated: 01 July 2022; Ref: scu.228653

Dr Thatcher v Middlesex University, Secretary of State for Education: EAT 10 Jun 2005

EAT Equal Pay Act – Part-time worker’s pension. – The Employment Tribunal Chairman erred in concluding the claim was submitted out of time when a stable employment relationship had been established. The analysis of the contractual differences alone was inaccurate, and this failure to consider and apply unchallenged evidence was an error.
McMullen J said that: ‘a stable employment relationship ceases where the terms of the new contract or (and I emphasise the word ‘or’) the work done under it radically differs.’

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0134/05, [2005] UKEAT 0134 – 05 – 1006, [2005] All ER(D) 82

Links:

Bailii, EATn

Statutes:

Equal Pay Act 1970 2 2ZA

Cited by:

Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Cited – North Cumbria University Hospitals NHS Trust v Fox and Others CA 30-Jun-2010
The employer had altered existing employment contracts. The claimants having commenced discrimination claims then sought to add to the existing proceedings comparators from different job groups. The tribunal had been asked whether, given that this . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 July 2022; Ref: scu.228617

Shergill v NTL Group Ltd: EAT 11 Apr 2005

EAT Unfair Dismissal – Polkey deduction. Employment Tribunal found unfair dismissal but upheld an employer’s submission that there should be a 100% Polkey reduction.
EAT dismissed appeal on the ground that the Employment Tribunal had correctly applied the law.

Judges:

His Honour Judge Birtles

Citations:

[2005] UKEAT 0036 – 05 – 1104, UKEAT0036/05

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 01 July 2022; Ref: scu.228639

Newage Transmission Ltd v Transport and General Workers Union and others: EAT 25 May 2005

EAT Redundancy – Protective award – adequacy of reasons (BARKE) – maximum protective award for redundancies where 20 – 99 employees involved – TULRCA s189(4) – vires of s.1 1925/99.

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0131/05/MAA, [2005] UKEAT 0131 – 05 – 2505, UKEAT/0132

Links:

Bailii, EATn

Citing:

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. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.228619

Kerry Foods Ltd v Lynch: EAT 20 May 2005

EAT Constructive Dismissal. Whether lawful termination of contract can give rise to breach of implied term of Tand C. Johnson v Unisys. SORS – alteration of Terms. Hurdle to be crossed by employer.

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0032/05, [2005] UKEAT 0032 – 05 – 2005, [2005] IRLR 680

Links:

Bailii, EATn

Cited by:

Cited – Roberts v Acumed Ltd EAT 25-Nov-2010
roberts_acumedEAT10
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Claimant area sales manager . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.228640

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 Act 1995 section 8(3) damages) was refused as the Employment Tribunal had already decided, at its liability hearing, to deduct 40% from unfair dismissal compensation and had not said the same in respect of disability discrimination and this was not appealed. Alternatively, no exceptional circumstance existed: Kumchyk applied. Appeal allowed by consent on deducting incapacity benefit: Morgans applied. If the principle of contributory conduct approved in Fife Council v McPhee EAT/750/00 were to be applied, it would be useful first to have the intervention of the statutory commissions.

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0035/05, [2005] UKEAT 0035 – 05 – 3103

Links:

Bailii, Bailii, EATn

Citing:

Cited – Fife Council v McPhee EAT 21-Feb-2001
EAT The council appealed against a finding of unfair dismissal and disability discrimination, subject to a deduction of 50% for the claimant’s contribution. He had been found to have breached a council policy for . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 01 July 2022; Ref: scu.228622

Lewisham Hospital NHS Trust v Diffang: EAT 4 May 2005

EAT Unfair Dismissal – Compensation. ET (1) failed to apply correct test in ascertaining whether the implied form of trust and confidence was involved.
(2) gave no reasons for finding a 3 year period for loss of future earnings when Applicant was making no arrangements to find full time employment. Appeal allowed.

Judges:

His Honour Judge Birtles

Citations:

UKEAT/0022/05, [2005] UKEAT 0022 – 05 – 0405

Links:

Bailii, EAT

Citing:

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

Employment

Updated: 01 July 2022; Ref: scu.228203

London Borough of Enfield v Sivanandan: QBD 5 Apr 2004

Judges:

Jowitt Sir E

Citations:

[2004] EWHC 672 (QB)

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
. .
See Also – 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 . .
See Also – Sivanandan v London Borough of Enfield and others CA 7-Oct-2002
. .

Cited by:

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: 01 July 2022; Ref: scu.227080

Rahmeh and Another v Royal College of Obstetricians and Gynaecologists and others: EAT 26 May 2005

EAT Time Limits; Practice and Procedure – The Employment Tribunal did not err in law when it decided by agreement that it should hold a preliminary hearing to determine time limits and correctly applied the judgment of the Court of Appeal in Chaudhary v Royal College of Surgeons and Others [2003] ICR 1510.

Citations:

[2005] UKEAT 0625 – 04 – 2605

Links:

Bailii

Employment

Updated: 01 July 2022; Ref: scu.227028

Cornwall County Council v Prater: EAT 8 Jun 2005

EAT Contract of Employment – In this case we have held that where a Claimant teacher has accepted a succession of short term special teaching assignments, in circumstances where the Respondent employer was not obliged to offer further assignments and the teacher was not obliged to accept them, she was to be regarded nevertheless as having been continuously employed by the Respondent by virtue of S.212 of the Employment Rights Act 1996. On the particular facts of the case any gaps between the assignments were to be disregarded because the Claimant was only absent on account of a temporary cessation of work. The lack of mutuality of obligation before and after the completion of assignments did not of itself prevent the assignments from constituting contracts of employment.

Judges:

HHJ Serota QC

Citations:

[2005] UKEAT 0055 – 05 – 0806

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Employment

Updated: 01 July 2022; Ref: scu.227031

Jones v Rotherham Metropolitan Borough Council and others: EAT 9 Feb 2005

EAT Practice and Procedure – Costs.

Judges:

His Honour Judge Pugsley

Citations:

[2005] UKEAT 0441 – 04 – 0902, UKEAT/0441/04

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Jones v Rotherham Metropolitan Borough Council and others EAT 18-Aug-2004
EAT Practice and Procedure – Costs . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.227007

Ibrahim v Ethnic Minority Enterprise Centre and others: EAT 18 May 2005

EAT PRACTICE AND PROCEDURE – Costs – Case management – Claim for disability discrimination and breach of contract. Preliminary hearing at which claimants’ solicitors found liable in expenses and pre hearing review fixed under Rule 7 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001. Claimant appealed against both determinations. Employment Appeal Tribunal held that award of expenses against claimant’s solicitor was incompetent but that the Employment Tribunal had not erred in determining that there should be a pre- hearing review.

Citations:

[2005] UKEAT 0073 – 04 – 1805, EATS/0073/04

Links:

Bailii, EAT

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 July 2022; Ref: scu.227024

Lanarkshire Primary Care NHS Trust v Naicker: EAT 18 May 2005

EAT DISABILITY DISCRIMINATION – Disability – Reasonable adjustments -The claimant, a health visitor, claimed that she had been subjected to discrimination on account of disability and the Employment Tribunal found that they had failed in their statutory duties in respect that they should have made reasonable adjustments by offering her a post closer to her home, which would have reduced her travelling time to and from work. The Employment Appeal Tribunal found that the Employment Tribunal had failed to address the question of whether or not the claimant was suffering from a relevant disability, had failed to identify when the respondents’ knowledge or deemed knowledge of a relevant disability arose and had, in any event, in purporting to do so, relied on assumptions that they were not entitled to make. Further, with regard to the question of reasonable adjustments, they had failed to take account of relevant evidence. The case was remitted to a freshly constituted tribunal for a rehearing.

Judges:

The Honourable Lady Smith

Citations:

[2005] UKEAT 0003 – 05 – 1805, EATS/0003/05

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 01 July 2022; Ref: scu.227025

Sayers v Loganair Ltd: EAT 17 May 2005

EAT Reason for dismissal – Reasonableness of dismissal – The claimant was a pilot whose licence became restricted and he was dismissed. He claimed that he had been unfairly dismissed in respect that his dismissal was due to his having made a protected disclosure. The respondents denied that that was the reason for the dismissal, their case being that the dismissal was due to the restriction that had been imposed on his licence and that it was, in the circumstances, fair. The Employment Tribunal found that the reason for dismissal was the restriction on his licence, not the protected disclosure, but that the dismissal was unfair.

Judges:

The Honourable Lady Smith

Citations:

[2005] UKEAT 0084 – 04 – 1705, EATS/0084/04

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 01 July 2022; Ref: scu.227029

Apelogun-Gabriels v London Borough of Lambeth and Another: CA 25 Oct 2002

Application for permission to appeal against an order of the Employment Appeal Tribunal dismissing the appellant’s appeal against the decision of an Employment Tribunal

Citations:

[2002] EWCA Civ 1619

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – London Borough of Lambeth and Another v Apelogun-Gabriels CA 22-Nov-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.217631

Moore v University of Greenwich: EAT 5 Jul 2002

Preliminary hearing – appeal from dismissal of claim of race discrimination and victimisation.

Citations:

[2002] UKEAT 0942 – 01 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Philton Moore v The University of Greenwich Russell Brockett EAT 3-Jun-2003
EAT Race Discrimination – Victimisation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 July 2022; Ref: scu.203001

Mensah v Heatherwood and Wexham Park Hospitals NHS Trust and others: EAT 5 Jul 2002

Citations:

[2002] UKEAT 1393 – 01 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mensah v Heatherwood and Wrexham Park Hospitals NHS Trust and others EAT 12-May-2003
. .

Cited by:

Appeal from – Mensah v Heatherwood and Wexham Park Hospitals NHS Trust and others CA 1-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 July 2022; Ref: scu.203000

Johnson v Bank of England: EAT 10 Apr 2003

EAT Disability Discrimination – Less favourable treatment
EAT Disability Discrimination – Less favourable treatment.

Judges:

The Honourable Mr Justice Mitting

Citations:

EAT/334/02, [2003] EAT 0334 – 02 – 1004, [2003] UKEAT 0334 – 02 – 1004

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.184358

Panama v London Borough of Hackney: CA 17 Feb 2003

The claimant appealed from dismissal of her claim of unfair dismissal. She had been dismissed without a disciplinary hearing.
Held: The tribunal had asked only what might have been the outcome of a disciplinary hearing. Applying Burchell, it should also have asked whether such a dismissal itself would have been unfair. Since the respondent had failed to ask appropriate questions, a disciplinary procedure could not be imagined to be fair, and the dismissal was unfair.

Citations:

[2003] EWCA Civ 273, [2003] IRLR 278, Gazette 10-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – 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. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 June 2022; Ref: scu.181138

Leavers v The Victoria University of Manchester: EAT 21 Feb 2000

EAT Sex Discrimination – Direct
EAT Sex Discrimination – Direct

Judges:

His Honour Judge Peter Clark

Citations:

EAT/167/99, [2000] EAT 167 – 99 – 2102

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deman v Victoria University of Manchester EAT 28-Sep-1998
The claimant asserted the appearance of prejudice in the tribunal which had heard his claim.
Held: The claim was unfounded. Courts should acknowledge that there was always a risk of causing suspicion if untoward remarks were made, and a court . .
See Also – Deman v Victoria University of Manchester EAT 28-Sep-1999
. .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.171750

ADI (UK) Ltd v Willer and others: EAT 18 Apr 2000

EAT The employees appealed against a finding that there had been no transfer of an undertaking when their service business had been sold and they had been dismissed.
Held: The appeal failed. No assets, physical or otherwise had been transferred: ‘we can see no reason to doubt the Tribunal’s conclusion that there was no transfer. The operation was plainly labour-intensive. No assets at all were transferred, save for the right to use some of the client’s facilities, and no doubt the right to enter the client’s premises, which, as discussed above, amounts to nothing more than the recognition that the same operation is going to be carried out at the same premises. In those circumstances, given that the entity consisted entirely or almost entirely of the workforce dedicated to the carrying out of a single contract which terminated at the instance of ADI, it is clear that when none of that workforce transferred, it is at the very least open to the Employment Tribunal to have found, by reference to any of the tests or any of the guidelines set out above, that there was no transfer.’

Judges:

The Honourable Mr Justice Burton

Citations:

EAT/11/99, [2000] EAT 11 – 99 – 1804

Links:

EATn, Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 3, Council Directive 77/187 1(1)

Jurisdiction:

England and Wales

Citing:

See Also – ADI (UK) Ltd v Willer and others EAT 8-Mar-1999
The appeal is to go ahead to a full inter partes hearing. . .

Cited by:

Appeal from – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 June 2022; Ref: scu.171839

Gbaja-Biamila v DHL International (UK) Ltd and others: EAT 1 Mar 2000

EAT Race Discrimination – Injury to Feelings
EAT Race Discrimination – Injury to feelings.

Judges:

Mr Justice Lindsay (President)

Citations:

EAT/1224/98, [2000] UKEAT 1224 – 98 – 0103

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gbaja-Biamila v DHL International (UK) Ltd and others EAT 10-Feb-1999
. .

Cited by:

Compared – Bennett T/A Foxbar Hotel v Reid EAT 26-Sep-2001
The employer appealed an award of ten thousand pounds for injured feelings, following a finding of sex discrimination. It was said that the award went beyond compensation to punishment. To vary such an award, the EAT must find some error of . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.171777

Philander v Leonard Cheshire Disability: EAT 1 Nov 2018

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
CONTRACT OF EMPLOYMENT – Wrongful dismissal
DISABILITY DISCRIMINATION – Direct disability discrimination
The Employment Tribunal (‘ET’) was entitled to conclude that the Respondent had established a conduct reason for dismissal on account of the Claimant before the ET’s gross negligence. The reason had not been mislabelled by the Tribunal and its finding of not unfair dismissal stands.
The Tribunal was also entitled to conclude that the Claimant had not been wrongfully dismissed on the evidence before it and on its findings of fact.
There was no error in the Tribunal’s approach to the comparator exercise both in considering disparity of treatment for the purposes of the unfair dismissal claim and for the exercise of the statutory comparison under section 23 Equality Act 2010 in considering the Claimant’s complaint of direct discrimination.
Employment Tribunal decision upheld.

Citations:

[2018] UKEAT 0275 – 17 – 0111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.630737

Campbell v British Airways Plc: EAT 13 Nov 2018

UNLAWFUL DEDUCTION FROM WAGES
PRACTICE AND PROCEDURE – Reasons
CONTRACT OF EMPLOYMENT – Construction of Terms
The claimant raised a claim alleging unlawful deduction of wages. In response, the respondent raised issues of whether the relevant term of a collective agreement was still in force (and so incorporated into the current contract) and even if it was, whether the term could be construed as applicable to the claimant. The Tribunal dismissed the claim. On appeal, an amended ground of appeal by the claimant made a reasons challenge and in particular an alleged failure to comply with Rule 62(5) of the 2013 Rules
Held:
(1) The Tribunal’s judgment did not set out properly the issues for determination and some of its purported findings were simply a narration of evidence given rather than that accepted as established fact. However, reading the judgment as a whole, there was just sufficient to convey what material parts of the evidence had been relied on for the conclusion. The substance of the rule had been complied with and the claimant would know why he had lost. Greenwood v NWF Retail Limited 2011 ICR 896 applied.
(2) It was sufficient for the Tribunal’s conclusion that the claimant had no contractual entitlement to the additional pay claimed. However, insofar as construction of the term under discussion was required, the tribunal had been entitled to take into account the overall purpose of the term – Arnold v Britton and others [2015] 2 WLR 1593.
Appeal dismissed

Citations:

[2018] UKEAT 0015 – 17 – 1311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.630734

Northampton Borough Council v Wolstenholme: EAT 4 Oct 2018

An Employment Tribunal erred in law in ordering disclosure which would, if given, have put the Respondent in breach of section 19(5) of the Anti-Terrorism, Crime and Security Act 2001, by which the Respondent was prevented from further disclosing information obtained by it from HMRC pursuant to subsection 19(2) except in certain circumstances and with the consent of the Commissioners of HMRC. No reasons for the decision had been given despite there having been sought.

Citations:

[2018] UKEAT 0130 – 18 – 0410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.630730

Barnard v Hampshire Fire and Rescue: EAT 12 Oct 2018

EQUAL PAY
An Employment Tribunal was charged with determining whether a ‘stable working relationship’ was preserved when an employee had been promoted through a series of ranks. The concept of a ‘stable employment relationship’ was created by the European Court of Justice in Preston and Others v Wolverhampton Healthcare NHS Trust and Others [2000] ICR 961, a case concerned with women whose equal pay claims had been held to be time limited because their employment had not been continuous. The term was inserted into the Equal Pay Act 1970, in 2003, and, in the Equality Act 2010, was changed to ‘stable working relationship’. In neither Act was the relevant term defined, and, in the Authorities which have considered it, the focus has been on the temporal nature of the employment relationship, and any breaks therein, and not on a changing work pattern over a continuous period of employment. Although words such as ‘fundamental’ ‘radical’ and ‘significant’ have been used in describing the degree of change in terms of employment required to bring an end to the stable employment/working relationship, there has been no guidance as to the practical application of the test.
In the present case, the Employment Tribunal (which had very limited assistance from the case law) made only brief factual findings and failed to identify the proper nature of the test which it was purporting to apply. Accordingly, the findings under appeal were held to be perverse and also not ‘Meek’- compliant, in failing properly to explain the basis for the Tribunal’s decision. The case would be remitted to a fresh Employment Tribunal, with the recommendation that a constitution which included Lay Members would be advisable.

Citations:

[2018] UKEAT 00179 – 18 – 1210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.630729

Oladipo v Lush Retail Ltd: EAT 16 Aug 2018

VICTIMISATION DISCRIMINATION – Other forms of victimisation
The Tribunal’s approach to and reasons for its Judgment in relation to the Claimant’s complaint of victimisation dismissal and some of the evidence were unclear. Overall, and on the particular facts of the case, the lack of findings about the dismissing officers’ knowledge or belief of the protected acts having been done, and other concerns in the findings and reasoning for its conclusions, the victimisation complaint only is remitted to a freshly constituted Tribunal for re-hearing, for the Tribunal to consider whether the Claimant’s dismissal was because of victimisation contrary to sections 27 and 39 Equality Act 2010.
There is no challenge to the Tribunal’s clearly reasoned and impeccable decision that the Claimant was not subjected to unlawful direct race discrimination.

Citations:

[2018] UKEAT 0050 – 18 – 1608

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.630723

Twenty-Four Seven Recruitment Services Ltd and Another v Afonso and 190 Others: EAT 16 Oct 2018

The Claimant agency workers made complaints to the ET that their contracts of employment with the Respondent temporary work agencies (‘TWA’) did not comply with the requirements of Regulation 10(1)(a) of the Agency Workers Regulations 2010 (‘AWR’); and that in consequence the exemption from pay parity under Regulation 5 did not apply.
The ET upheld the claims as they related to Regulation 10(1)(a)(i) and (iii). The requirement of written terms and conditions ‘ . . relating to – (i) the minimum scale or rate of remuneration or the method of calculating remuneration’ was not satisfied by the term which provided for pay ‘at a rate at least equivalent to the then current National Minimum Wage’ (‘NMW’). The requirement relating to ‘(iii) the expected hours of work during any assignment’ was not satisfied by the term that ‘The Employee’s expected hours of work on each Assignment are:- Any 5 days out of 7’.
On appeal the EAT held that Regulation 10(1)(a)(i) was satisfied by the contractual terms, but 10(1)(a)(iii) was not. The appeal was therefore dismissed.

Citations:

[2018] UKEAT 0311 – 17 – 1610

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.630731

Cooper v West Yorkshire Police and Another: EAT 24 Jul 2006

EAT Appellant was seconded from Respondent to the Council. She became pregnant. Funding for her post ceased so she reverted to Respondent. She claimed Sex Discrimination against the Council and Respondent. The claim against Respondent was on the basis it was not protested against the Council’s decision to cut funding. At the ET hearing her claim against the Council failed because the decision to cut funding ante-dated the Council’s knowledge of her pregnancy. The existing claim against Respondent was abandoned and an attempt to amend to claim. Respondent was vicariously liable for the Council’s acts was disallowed. Respondent was awarded costs. A appealed against the refusal of permission to amend and the costs order.

Citations:

[2006] UKEAT 0035 – 06 – 2407

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.243442

Judge v Crown Leisure Ltd: CA 21 Apr 2005

The claimant appealed against dismissal at the ET and EAT of his claim for constructive dismissal. The court considered whether the employer had made a promise to the employee.
Held: Smith LJ said: ‘In my view, with respect, [the claimant’s counsel] has misunderstood the ET’s decision. The Tribunal did not hold that there was no intention to create legal relations. Indeed, in my view, that question never arose. These two men were employer and employee; in effect, legal relations already existed between them. If words had been uttered that were capable of amounting to a contractual promise, it could not sensibly have been suggested that there was no intention to create legal relations.’

Judges:

Smith LJ, Sir Martin Nourse and Mummery LJ

Citations:

[2005] EWCA Civ 571, [2005] IRLR 823

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Judge v Crown Leisure Limited EAT 28-Sep-2004
EAT The ET correctly found that a conversation between the Applicant and his manager at the office Christmas dance did not amount to an enforceable promise to increase pay, but were words of comfort. The claimant . .
Cited – Edwards v Skyways Ltd QBD 1964
There had been a negotiation between representatives of the British Airline Pilots Association and the airline company regarding pension rights of pilots who were made redundant. The company contended that the representation made by it in the course . .

Cited by:

Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 30 June 2022; Ref: scu.226052

Uzowuru v London Borough of Tower Hamlets: EAT 2 Mar 2005

EAT Race Discrimination – Victimisation. Appeal in respect of victimisation based on incorrect application of Barton; and of unfair dismissal under both Section 99 and Section 98 of the Employment Rights Act 1996 – we found Employment Tribunal had applied itself correctly on all matters and appeal dismissed.
EAT Race Discrimination – Victimisation.

Judges:

His Honour Judge Prophet

Citations:

UKEAT/0869/04, [2005] UKEAT 0869 – 04 – 0203

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 98 99

Jurisdiction:

England and Wales

Citing:

Cited – Qua v John Ford Morrison (Solicitors) EAT 14-Jan-2003
The claimant appealed the refusal of her claim for a finding that her dismissal was automatically unfair. She had been employed for less than a year, and had taken several absences to care for her child. She claimed protection saying that her . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.225909

Abbey National Plc v Dutton: EAT 20 Jan 2005

EAT Disability Discrimination
Employment Tribunal Chairman sitting alone hearing a preliminary issue as to whether Claimant was disabled erred in refusing to allow cross-examination of Claimant on what she did and could do at work, such matters also appearing on the joint expert’s report. Law Hospitals NHS Trust v Rush [2001] IRLR 611 applied. Remitted to fresh three-person Employment Tribunal.

Judges:

His Honour Judge Mcmullen QC

Citations:

UKEAT/0879/04, [2005] UKEAT 0879 – 04 – 2001

Links:

Bailii, EAT

Citing:

Applied – Law Hospitals NHS Trust v Rush SCS 13-Jun-2001
The claimant had said that the effect of her dyslexia was to inhibit her career progress.
Held:It was right for a tribunal to have regard to how an applicant could carry out duties at work in deciding whether she was within the Disability . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.225380

Secretary of State for Education and Skills v Mairs: Admn 25 May 2005

The appellant had been dismissed from the social services department of Haringey Borough Council, and her name placed on a list of persons unsuitable to work with children. She had been criticised in the statutory inquiry into the death of Victoria Climbie. She had led the team of social workers. The Secretary of State appealed her removal from the list by the Care Standards Tribunal.
Held: It was permissible for the tribunal to depart from the decision of a statutory inquiry. That inquiry was not judicial in nature and could not bind a judicial body such as the tribunal. The results of the inquiry were admissible before the tribunal, and the views expressed might be highly persuasive. If the tribunal diverged from the findings of an inquiry it should do so only with care, and should explain its reasons, but in this latter respect it was sufficient to show that it had a justifiable basis for its conclusion. That existed here.

Judges:

leveson J

Citations:

[2005] EWHC 996 (Admin), Times 15-Jun-2005

Links:

Bailii

Statutes:

Protection of Children act 1989 81

Citing:

Appeal from – Mairs v Secretary of State for Education and Skills CST 15-Nov-2004
. .
Cited – National Care Standards Commission, Regina (on the Application Of) v Jones Admn 21-Apr-2004
The Tribunal must ensure that it ‘asks itself the correct questions and then provides intelligible answers to those questions’ . .
Cited – Waddle v Wallsend Shipping Co Ltd 1952
The court considered the relationship between the findings of an inquiry and later judicial proceedings: ‘I think that the competent authorities might consider whether the useful purposes that wreck inquiries serve would not be increased if the . .
Cited – Patras v Commonwealth 1966
(Supreme Court of Victoria) The court distinguished decisions which are judicial from those which are purely administrative: ‘The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal . .
Cited – Thrasyvoulou v Secretary of State for the Environment HL 1990
A building owner appealed against enforcement notices which alleged that there had been a material change of use of his buildings in 1982. This notice was issued by a planning authority. As a result of the appeal an inspector determined that the . .
Cited – The European Gateway 1987
The court considered what use should be made by a court of a previous stautory inquiry. After referring to Waddle: ‘It is sufficient if I observe that I do not consider that this dictum (which goes to the admissibility of the report of a wreck . .
Lists of cited by and citing cases may be incomplete.

Local Government, Employment

Updated: 30 June 2022; Ref: scu.225332

Scott and Co v Richardson: EAT 26 Apr 2005

EAT REASON FOR DISMISSAL
The Tribunal erred in its approach to substantial other reason (contrary to Hollister, Banerjee, Harper and Gilham) by expressing its own view as to the commercial decision leading to the business re-organisation requiring alteration to the terms and conditions of the Applicant’s employment, rather than addressing the employer’s reasons. It consequently found the decision unfair due to lack of a statutory reason, and prevented proper consideration (in the alternative) of reasonableness. Conclusion that dismissal was for a substantial other reason substituted, and the issue as to fair dismissal remitted, and to a different Tribunal.

Judges:

The Honourable Mr Justice Burton President

Citations:

EATS/0074/04, [2005] UKEAT 0074 – 04 – 2604

Links:

Bailii

Cited by:

Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 30 June 2022; Ref: scu.225208

Parmar v McDonald Restaurants Ltd: EAT 13 Apr 2005

EAT Practice and Procedure
Alleged perversity by Employment Tribunal in the findings of fact rejecting claims of disability and sex discrimination. No basis for such appeal at all; nor for the suggestion that by cross-referring to the findings of fact on disability discrimination the Employment Tribunal in any way failed to consider the similar allegations of sex discrimination.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/0866/04, [2005] UKEAT 0866 – 04 – 1304

Links:

Bailii, EAT

Employment

Updated: 30 June 2022; Ref: scu.225215

Disability Action in the Borough of Barnet v Druker: EAT 11 Feb 2005

EAT Unfair Dismissal – Reasonableness of dismissal – Whilst purporting to remind themselves of the reasonable responses test, we are satisfied that the Employment Tribunal substituted its own views for that of a reasonable employer. On the correct test the only possible conclusion was that the dismissal was fair, and we therefore substituted a decision to that effect.

Judges:

His Honour Judge Prophet

Citations:

UKEAT/0874/04, [2005] UKEAT 0874 – 04 – 1102

Links:

Bailii, EAT

Employment

Updated: 30 June 2022; Ref: scu.225225

Marks and Spencer Plc v Williams-Ryan: CA 19 Apr 2005

The court accepted a late filing of an employment tribunal claim after the claimant had received poor legal advice.

Citations:

[2005] EWCA Civ 470, [2005] IRLR 562

Links:

Bailii

Statutes:

Employment Rights Act 1996 111(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Marks and Spencer Plc v S Williams Ryan EAT 17-Aug-2004
EAT Time Limits – Reasonable practicability . .

Cited by:

Cited – Beasley v National Grid CA 6-Jun-2008
The claimant had presented his unfair dismissal claim 88 seconds late. He appealed against refusal of jurisdiction by the Employent tribunal and the EAT.
Held: Leave was refused. The tribunal had given proper consideration to the question of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 June 2022; Ref: scu.224785

Gill v Manchester Metropolitan University: EAT 22 Feb 2005

Claimant was two days out of time in his Notice of Appeal against the Strike-out of his claim. While not contended to be dishonest, the Claimant was not convincing and, it was found, Claimant did not post it until day 42. The bank holiday could not be blamed. Further, the Notice of Appeal was bound to fail. Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111, CA applied

Judges:

His Honour Judge Mcmullen QC (Sitting Alone)

Citations:

UKEATPA/1307/04/DM, [2005] UKEAT 1307 – 04 – 2202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 June 2022; Ref: scu.224696