Category: Employment

C James and Sons v Puglia: EAT 15 Jan 1992

The claimant had been made redundant after many years. He had worked for a farming partnership, and there had been recent changes in the partnership constitution.

Judges:

Wood J P

Citations:

[1992] UKEAT 96 – 90 – 1501

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978

Citing:

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

Cited by:

See Also – 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 . .
See Also – C James and Sons v Puglia CA 19-Feb-1997
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210897

Independent Research Services Ltd v Catterall: EAT 26 Jun 1992

The claimant was a director of the employer’s company. He claimed that the relationship of trust and confidence with the company had been undermined so far as to be a repudiatory breach of the contract. Before his complaint of unfair dismissal, he wrote without prejudice to the employers offering to stay a full time employee with a payment for ceasing to act as a director. At an interlocutory hearing the Chairman refused to admit the letter in evidence. The employers appealed saying that the ‘without prejudice’ letter was inconsistent with the his assertion that the relationship of trust and confidence had been undermined and that it should be admitted as an exception to the general principle of exclusion.
Held: The employee’s appeal failed. The principles for excluding ‘without prejudice’ correspondence in a Court applied equally to proceedings in Industrial Tribunals. The letter would only be admissible if it came within a recognised exception to the general principle, namely that there would be an abuse of the rule if it was applied to exclude the ‘without prejudice’ correspondence. The appropriate test was whether, if the ‘without prejudice’ material were suppressed, something amounting to a dishonest case would be prosecuted, and that since there was no such dishonesty in the present case, the privilege should remain.
Knox J said: ‘As often happens in difficult cases two well established and valuable legal principles collide. One is that it is desirable that courts and tribunals should have all the available material before them with which to arrive at a just conclusion in accordance with law. The other is that it is desirable that parties should be in a position freely to negotiate a compromise of their disputes without having what they say in the course of those negotiations revealed subsequently and used against them in litigation or proceedings before a tribunal. There is inevitably going to be a contradiction or conflict where an admission, or a statement of present intention, is made which conflicts with the parties’ pleaded case and we quite see that in the present circumstances there is going to be a difficult conflict between the proposition that the applicant’s trust and confidence was destroyed in late April 1991 and remained destroyed to 13 May and on the other hand his willingness to continue as an employee if certain financial inducements were forthcoming. But the existence of the conflict is not of itself, in our view, sufficient to warrant our giving priority to the first of the two principles, namely, that the courts should have all available material before them, over the other, namely, protection for ‘without prejudice’ correspondence. It seems to us, particularly having regard to the authorities that are collected in Mr. Foskett’s book, that the yardstick that should be applied in this category of cases is whether the ‘without prejudice’ material involves, if it is suppressed, something amounting to a dishonest case being prosecuted if the pleaded case continues. The nearest example amongst the quoted cases in Mr. Foskett’s book, to which we were referred, is a decision of Mr. Anthony May Q.C., Hawick Jersey international Ltd. v. Caplan, The Times, 11 March 1988, and the account given of it is this:
‘P claimed a repayment of a loan to D of andpound;10,000 made by means of a cheque. D denied the transaction was a loan because he had supplied andpound;10,000 cash. D secretly tape recorded a ‘without prejudice’ meeting at which (a) P did not dispute and indeed accepted D’s repeated assertions that the transaction was not a loan but one involving an exchange for andpound;10,000 in cash and (b) P expressly or impliedly said that the proceedings were brought to persuade D to reach a fairer settlement or to settle other differences.’
and Mr. May, sitting as a deputy judge of the Queen’s Bench Division, held that P was threatening to persist with dishonest proceedings and accordingly that ‘without prejudice’ privilege did not apply to the discussion. Other more extreme examples are given of threats in the nature of blackmail and other wholly undesirable and, indeed, criminal activities which cannot be indulged in cloaked under the privilege of ‘without prejudice’.
We have therefore looked to see whether we are of the view that the exclusion of the ‘without prejudice’ material and persistence in the applicant’s case as pleaded in his originating application involves something in the nature of dishonest conduct on his part. Tested by that test we conclude that the material should remain hidden from the industrial tribunal because we do not think that there is dishonesty involved in such an attitude.’

Judges:

Knox J

Citations:

[1992] UKEAT 279 – 92 – 2606, [1993] ICR 1

Links:

Bailii

Statutes:

Industrial Tribunals (Rules of Procedure) Regulations 1985 (SI 1985 NO 16)

Cited by:

Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Brodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 19 June 2022; Ref: scu.210996

Associated Newspapers Ltd v Wilson: EAT 26 Mar 1992

Citations:

[1992] UKEAT 612 – 90 – 2603

Links:

Bailii

Cited by:

See Also – Associated British Ports v Palmer and Others; Associated Newspapers Ltd v Wilson EAT 23-Jul-1992
It was wrongful treatment to give differential pay rises according to whether or not an employee chose to be a member of a trade union. An offer of personal contracts to abandon union membership was not a penalty. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210934

Limb Group of Companies v Baxter and others: EAT 30 Jul 1993

Citations:

[1993] UKEAT 209 – 91 – 3007

Links:

Bailii

Cited by:

Appeal from – Baxter and others v Limb Group of Companies CA 30-Jun-1994
The claimants had been employed at Hull Docks. They went on strike, were warned that a continuation of the strike would lead to dismissal, and after failing to return were dismissed. The Employment tribunal had found them fairly dismissed but for . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210692

Swithland Motors Plc v Clarke and others: EAT 14 Jul 1993

There could be no act of discrimination under the Section 6(1)(c) of the 1975 Act in omitting to offer employment until the person allegedly responsible for the omission was in a position to offer such employment.

Judges:

Hull J QC

Citations:

[1993] UKEAT 329 – 92 – 1407, [1994] ICR 231

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 6(1)

Cited by:

Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 June 2022; Ref: scu.210720

Bestwide Ltd (T/A Telford Hotel Golf and Country Club) v Butler: EAT 29 Mar 1993

Query as to the date of termination of employment

Judges:

Peppitt QC HHJ

Citations:

[1993] UKEAT 572 – 92 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 19 June 2022; Ref: scu.210494

East Surrey District Health Authority v Paul: EAT 4 May 1993

Judges:

Wood J P

Citations:

[1993] UKEAT 328 – 91 – 0405

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Paul v East Surrey District Health Authority CA 1995
Only in exceptional cases will different treatment of employees of itself amount to an unfairness. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210585

Duffy v Yeomans and Partners Ltd: EAT 7 Apr 1993

Citations:

[1993] UKEAT 530 – 91 – 0704

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Mentioned – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .

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 . .
Appeal from – Duffy v Yeoman and Partners Ltd CA 15-Jul-1994
Redundancy decision without consultation where ‘no difference’ was found, and there was no alternative, was not unfair. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210553

Payne and others v Port of London Authority: EAT 9 Jun 1993

Citations:

[1993] UKEAT 40 – 93 – 0906

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Port of London Authority v Payne and others EAT 17-Dec-1992
. .
See Also – Port of London Authority v Payne and Others EAT 7-May-1992
A decision as to the practicality of an order for re-engagement is to be made at time of the order. . .

Cited by:

See Also – Port of London Authority v Payne and Others CA 3-Nov-1993
The practicality of re-instatement of an employee is to be decided on the evidence immediately before the tribunal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210636

Wolesley Centers Ltd v Simmons: EAT 24 May 1993

The EAT considered the Polkey principle: ‘a finding that a dismissal is unfair does not mean that an employee is entitled to full compensation for the loss resulting from the loss of his job. He is only entitled to the loss he has sustained which is attributable to action taken by the employer, so that, if he would have been dismissed even if the employer had acted properly and fairly, the employee’s compensatory award is likely to be small or even nil. In Polkey v A E Dayton Services Ltd [1988] I.C.R. 142, 163 Lord Bridge of Harwich quoted with approval dicta of Browne-Wilkinson J. in Sillifant v. Powell Duffryn Timber Ltd. [1983] IRLR 91, 96:
‘There is no need for an ‘all or nothing’ decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.’
We think that it follows from the Polkey decision and from later authorities, including Red Bank Manufacturing Co. Ltd. v Meadows [1992] ICR 204; Rao v. Civil Aviation Authority [1992] I.C.R. 503; K. P. G. Computer Support Services Ltd. v Abayomi (unreported), 21 December 1992 and Dunlop Ltd. v Farrell [1993] I.C.R. 885, that the assessment of the compensatory award in this kind of case involves a two-stage process. First, the tribunal must ask itself whether if the employer had followed the proper procedures and acted fairly the employee would not have been dismissed. If the answer to that question is reasonably clear one way or the other, there is no difficulty. But in many cases the answer will be uncertain, in which situation, in order to give proper effect to section 74(1) of the Act of 1978 and the dicta of Browne-Wilkinson J. set out above, the tribunal must, as the second stage of the process, make a percentage assessment of the likelihood of the employee being retained which must then be reflected in the compensatory award.’

Citations:

[1993] UKEAT 555 – 92 – 2405, [1994] ICR 503

Links:

Bailii

Citing:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Charles Letts and Co v Howard EAT 1976
Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and . .

Cited by:

Cited – NSM Music Ltd v Leefe EAT 20-Jun-2006
EAT Unfair Dismissal – Polkey deduction
Appeal on basis that Chairman failed to consider whether a Polkey deduction was appropriate in a failure to consult redundancy unfair dismissal. Respondent had been . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210608

O’Callaghan v Notting Hill Housing Trust: EAT 18 May 1993

Citations:

[1993] UKEAT 516 – 92 – 1805

Links:

Bailii

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

Employment

Updated: 19 June 2022; Ref: scu.210594

Linbourne v B R Constable (Gatwick Moat House): EAT 9 Feb 1993

The application proceeded against one named respondent. Even though the true identity of the intended defendant was known throughout, no application to substitute the correct defendant was made. An unfair diamissal was found, but not as against the named defendant, the triunal refused an application to substitute the correct defendant and the claim was lost. The employee appealed.
Held: The EAT not only allowed the correct employer to be substituted for the original Respondent, but adopted the Employment Tribunal’s findings on unfairness against the new Respondent, ordering that Respondent to pay compensation to the Applicant. However the new Respondent was given leave to apply for a review of the Employment Appeal Tribunals decision.

Citations:

[1993] UKEAT 338 – 92 – 0902, (1993) ICR 698

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cocking v Sandhurst (Stationers) Ltd NIRC 1974
The Appellant employee had applied for leave to amend his first application by substituting the name of the parent company. The Tribunal held that the rules of procedure relating to time limits went to their jurisdiction and that the amended . .
Cited – Watts v Seven Kings Motor Co Ltd EAT 1983
The tribunal had made an award against the defendant, but only later was the true identity of the defendant company setled, and they were substituted.
Held: The EAT allowed an amendment to name the firm as Respondent; the Employment Tribunal’s . .

Cited by:

Cited – 1A Centre Community Association Ltd v Gwiazda and others EAT 14-Jul-2000
The claimants alleged an unlawful deduction from their wages, and unfair dismissal. The employer appealed, complaining that the limited company had been added late. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210461

Kaur v Brose Ltd: EAT 8 Feb 1993

Citations:

[1993] UKEAT 477 – 90 – 0802

Links:

Bailii

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

Employment

Updated: 19 June 2022; Ref: scu.210457

Discount Tobacco and Confectionary Ltd v Williamson: EAT 12 Jan 1993

The company appealed against a finding that they had made an unlawful deduction from the claimant’s salary. He was manager of a store where there had been shortfalls of stock, and had deducted part of its value from his salary on dismissing him.

Judges:

Wood P J

Citations:

[1993] UKEAT 327 – 90 – 1201, [1993] ICR 371, [1993] IRLR 327

Links:

Bailii

Statutes:

Wages Act 1986 1(4)

Jurisdiction:

England and Wales

Citing:

Cited – York City and District Travel Ltd v Smith EAT 1990
In March 1988 the employers, the bus company, York City and District Travel Limited negotiated an agreement with the trade union varying their employees contracts of employment so as to provide that the employers were entitled to deduct any cash . .
Cited – Delaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 19 June 2022; Ref: scu.210399