Category: Employment

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 in the Tribunal members holding a meeting in the absence of the parties for the purposes of reaching their decision on evidence and argument already before them.
As to the affect of the receipt of statutory sick pay: ‘In our judgment, the industrial tribunal correctly applied the law in deducting from the estimated loss of earnings the statutory sick pay received by Mr Puglia over the relevant period. The law on this topic was settled by the Appeal Tribunal in Sun and Sand Ltd v Fitzjohn [1979] IRLR 154 . . It was not suggested in this case that Mr Puglia’s contract of employment provided that he would be entitled to his full wages in addition to any statutory sick pay which he received. The industrial tribunal were therefore correct in making a deduction for the statutory sick pay received by Mr Puglia.’

Judges:

Mummery J

Citations:

[1995] UKEAT 777 – 93 – 2410, [1996] ICR 301, [1996] IRLR 70

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – 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. . .
Cited – Sun and Sand Ltd v Fitzjohn 1979
The EAT considered the deduction of sickness benefit from the compensatory award. Arnold J said: ‘The appellants before us say that that amount of sick ness benefit should be deducted from the amount awarded within the compensatory award for the 13 . .
Cited – Hilton International Hotels (UK) Ltd v Faraji EAT 10-Jan-1994
No reduction in compensation for unfair dismissal was to be made for invalidity benefit. . .
Cited – SH Muffett Ltd v Head EAT 1986
The Tribunal was asked to award damages for the loss of statutory protection and also loss of notice period, ‘what is generally referred to as the ‘loss of the right to long notice’ or, more particularly, it is the loss of a right in the event of . .

Cited by:

See Also – C James and Sons v Puglia CA 19-Feb-1997
. .
Cited – Langley and Another v Burso EAT 3-Mar-2006
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 . .
Cited – Knapton and others v ECC Card Clothing Ltd EAT 7-Mar-2006
EAT Unfair Dismissal: Compensation
Reversing the Employment Tribunal, in the assessment of compensation for unfair dismissal under Employment Rights Act 1996 section 123, an employee who took early receipt . .
Lists of cited by and citing cases may be incomplete.

Employment, Benefits

Updated: 18 June 2022; Ref: scu.209414

United Arab Emirates v Abdelghafar and Another: EAT 10 Jul 1995

The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
Held: The tribunal had erred. Though Sengupta had been decided under common law, it remained instructive. Though the tribunal had cited the section, it had not applied it correctly. This was a case of state immunity which had to be clearly distinguished from diplomatic immunity. The fact that he had been employed by a British citizen did not mean that state immunity was not available.
Mummery P J considered the principles applied by the Courts in considering whether to grant extensions of time under the Rules of the Supreme Court. He drew attention to two intersecting principles; the first that rules [and orders] should be obeyed, and the second that a party should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. The application of these principles is sensitive to the stage at which the application is made. Applications to extend time made at an early stage in proceedings are far more likely to receive sympathetic consideration than those made in relation to an appeal: ‘the approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.
(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.’
. . ‘In accordance with the general principles stated above, the Appeal Tribunal follows the guidelines for the exercise of its discretion to extend time. They are only guidelines. They do not fetter the exercise of the discretion. They are intended to ensure, as far as possible, consistency of treatment, predictability of result and the attainment of justice.(1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance. When parties are notified of the reasons for the industrial tribunal’s decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.
(2) The tribunal’s discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later. (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time.

Judges:

Mummery P J

Citations:

[1995] UKEAT 768 – 94 – 1007, [1995] ICR 65, [1995] IRLR 243

Links:

Bailii

Statutes:

State Immunity Act 1978 1(2) 4 16(1)(a)

Citing:

Cited – Sengupta v Republic of India 1983
India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it.
Held: The court has a duty under statute to give the effect to the immunity conferred, even though . .
See Also – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.

Cited by:

Cited – Peters v Sat Katar Co Ltd (in liquidation) CA 20-Jun-2003
The claimant had sent a notice of appeal, but it was lost in the post. He now appealed a refusal of leave to apply out of time.
Held: The EAT should look at the circumstances. Here a litigant in person would not have been alerted to the need . .
Approved – Aziz v Bethnal Green City Challenge Company Limited CA 25-May-1999
The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
Held: Permission to appeal was refused. Sir . .
Cited – Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker EAT 10-Apr-2003
The appellant challenged a finding of race discrimination against the respondent, saying the court had no jurisdiction. . .
Cited – Clancy v Cannock Chase Technical College EAT 1-Feb-1999
The claimant sought to appeal against refusal to allow him an extension of time for appeal. He miscalculated the date.
Held: Reasons given for failure to apply in time often did not excuse the failure. That applied here. ‘The time limits, it . .
Cited – Clancy v Cannock Chase Technical College CA 11-Jun-1999
The claimant appealed refusal of leave to appeal to the EAT out of time. He had miscalculated the closing date by ten days.
Held: ‘the existence of a ground of appeal does not in itself justify an extension of time. It has been held repeatedly . .
Cited – Dolega-Ossowski v Harvey Nichols EAT 20-Mar-2003
The EAT considered applications for leave to appeal out of time from both parties.
Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
1) What is the explanation for the default?
2) Does it . .
Cited – Dolega-Ossowski v Harvey Nichols EAT 20-Mar-2003
The EAT considered applications for leave to appeal out of time from both parties.
Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
1) What is the explanation for the default?
2) Does it . .
Cited – The Federal Republic of Nigeria v Ogbonna EAT 12-Jul-2011
nigeria_ogbonnaEAT2011
EAT JURISDICTIONAL POINTS – State immunity
A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .
Cited – Khudados v Leggate and others EAT 16-Feb-2005
Application was made to make extensive amendments to the notice of appeal.
Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .
Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction

Updated: 18 June 2022; Ref: scu.209281

Winter v St Helens Metropolitan Borough Council: EAT 28 Jul 1995

Appeal by Mr Winter against a decision of the Industrial Tribunal. The Tribunal decided that he had not been dismissed and in those circumstances did not have to go on to consider the question as to whether a dismissal had been unfair.

Judges:

Butter QC J

Citations:

[1995] UKEAT 736 – 94 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 June 2022; Ref: scu.209287

Sirdar v Ministry of Defence: EAT 15 Sep 1995

The claimant had brought a sex discrimination claim, saying that she had bee refused opportunity to work as a chef with the Royal Marines. She and the defendants had had sought an adjournment of the claim, but this had been refused.
Held: Appeal allowed.

Judges:

Hicks QC HHJ

Citations:

[1995] UKEAT 978 – 95 – 1509

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Cited by:

See Also – Sirdar v Army Board and Another ECFI 27-Oct-1999
It was possible for the Royal Marine unit to exclude the employment of a woman as a chef. The requirement not to discriminate was overriding save where the nature of the work makes the sex of the worker a determining factor. The nature and rules of . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Armed Forces

Updated: 18 June 2022; Ref: scu.209310

Barnett v Mipac Ltd (In Receivership) and Another: EAT 16 Oct 1998

Preliminary hearing of an appeal at the instance of Dr Barnett who seeks effectively a redundancy payment from the Secretary of State for Trade and Industry under the statutory insurance scheme with regard to failed companies and redundancy payments, the Employment Tribunal having ruled as a matter effectively of jurisdiction that Dr Barnett was not an employee of his company and therefore was not entitled to an order for payment of money.

Citations:

[1998] UKEAT 582 – 98 – 1610

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 June 2022; Ref: scu.206717

Bradstock Group Pension Scheme Trustees Ltd v Bradstock Group plc and Others: ChD 17 Jun 2002

The company found itself unable to fund the pension scheme it had committed itself to. If it sought to pay the money due, the company would have to go into liquidation. It did not meet the minimum funding requirements of the Act. The company proposed a scheme of compromise with the trustees.
Held: There was no reason in law why a compromise could not be approved. In a liquidation, the pension trustees would stand as unsecured creditors, and accordingly receive a smaller sum. This was the best practical way forward, and within the powers of the trustees.

Judges:

Mr Charles Aldous QC

Citations:

Times 10-Jul-2002, Gazette 19-Sep-2002

Statutes:

Trustee Act 1925 15, Pensions Act 1995 75

Jurisdiction:

England and Wales

Financial Services, Employment, Trusts

Updated: 18 June 2022; Ref: scu.174309

Graham v Glendale Management Service Ltd: CA 16 May 2003

The employee’s employment had been transferred to the respondent subject to his terms and conditions as with the local authority employer. Those terms included a clause applying normally national agreed rates of pay, but subsequent increases had not been applied.
Held: The term meant that the national rate of pay could be imposed without consultation, but if the employer wished to depart from that rate, it was necessary to notify the employee.

Citations:

Times 04-Jun-2003, [2003] EWCA Civ 773, [2003] IRLR 465, [2003] ICR 465

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981

Jurisdiction:

England and Wales

Cited by:

Cited – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.183241

North West Ambulance Service NHS Trust v Rice: EAT 30 Jan 2019

TRADE UNION MEMBERSHIP
The Respondent below appealed against the Judgment of the Employment Tribunal (‘ET’) upholding the Claimant’s claim that he was subjected to a detriment for the sole or main purpose of penalising him for his trade union activities contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.
The appeal was upheld. The ET had erred in its application of section 146 in that it did not set out the correct test of ‘sole or main purpose’, and its analysis did not focus on the factors operating on the minds of the relevant decision-makers; instead it based much of its analysis on the acts and omissions of others. Furthermore, several of the key findings of fact relied upon by the ET were unsupported by the evidence and/or were based on irrelevant considerations. For these reasons, it was concluded that the ET reached a decision as to the motivation of the Respondent that was not supported by its own findings of fact.

Citations:

[2019] UKEAT 0152 – 18 – 3001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 June 2022; Ref: scu.635817

Bluestones Medical Recruitment Ltd v Swinnerton: EAT 18 Feb 2019

Unlawful Deduction From Wages – The Claimant claimed sums that he said were due to him by way of unpaid bonus. His written contract of employment stated that any bonus was discretionary but there had been a further agreement regarding his bonus when he was promoted to General Manager in April 2015. The Respondent argued that the bonus remained discretionary; it had been intended that the Claimant would become a shareholding Director and would be paid these sums by way of dividend but, until that had been put into place, the monies due were advanced by way of Director’s loan. The ET held that the method by which the sums were paid to the Claimant did not detract from his entitlement (as agreed and as arising from custom and practice) to the bonus in question; on that basis, it upheld the Claimant’s unauthorised deduction of wages claim.
The Respondent appealed, contending the ET had failed to make the relevant findings of fact or carry out the requisite assessment to support any conclusion that the discretionary nature of the Claimant’s bonus entitlement had been varied (see the guidance laid down in Park Cakes Ltd v Shumba [2013] IRLR 800 CA); its decision failed to have regard to the unchallenged evidence adduced by the Respondent and, given the evidence of the loan payments made to the Claimant, its conclusion was perverse. In support of its arguments on appeal, the Respondent further raised the question whether the ET had jurisdiction to determine the Claimant’s claim given that subsection 27(2)(a) Employment Rights Act 1996 did not extend to loan payments.
Held : allowing the appeal
It was unclear whether the ET had made any finding as to whether there had been an express agreement in April 2015 that varied the previous discretionary quality of the Claimant’s bonus entitlement. In any event, it had failed to make the necessary findings of fact or to carry out the requisite assessment to support its decision that an entitlement had arisen from custom and practice and it had made no finding as to the nature of any agreement reached in April 2015, which was necessary in order to determine whether the payments made to the Claimant were in fact loans (and therefore excluded by subsection 27(2)(a) ERA ). The unauthorised deductions claim would be remitted to a differently constituted ET to determine afresh.

Citations:

[2019] UKEAT 197 – 18 – 1802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 June 2022; Ref: scu.635819

Kouchalieva v London Borough of Tower Hamlets: EAT 24 Jan 2019

PRACTICE AND PROCEDURE – Case Management
DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal did not err in law either (1) in the way in which it dealt with an existing list of issues or (2) in the way in which it addressed a reasonable adjustments claim.

Citations:

[2019] UKEAT 0188 – 18 – 2401

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 18 June 2022; Ref: scu.635816

Owners of The Ship ‘Swansea Yale’ v Rice: HL 5 May 1911

A ship’s officer was on duty upon deck on a ship at sea on a fine calm day. He disappeared. Earlier upon the same day he had complained of being sick and giddy. There was no further evidence to explain the disappearance. The County Court Judge held that his death had occurred by accident arising out of and in the course of the employment.
Held that the facts warranted the conclusion of the County Court Judge.

Judges:

Lord Chancellor (Loreburn), Lords Ashbourne, Alverstone, and Shaw

Citations:

[1911] UKHL 1095, 48 SLR 1095

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Employment

Updated: 18 June 2022; Ref: scu.619196

Burrett v West Birmingham Health Authority: CA 3 Mar 1994

Application for leave to appeal.

Citations:

Unreported, 3 March 1994

Jurisdiction:

England and Wales

Citing:

Approved – Schmidt v Austick’s Bookshops EAT 1977
The bookshop company’s employment rules prohibited trousers for female workers, a dress code which was upheld by the Tribunal.
Held: There was no detriment. As there was no comparable restriction for men it was not possible to say that women . .
Appeal from – Burrett v West Birmingham Health Authority EAT 6-Dec-1993
Female nurses had to wear a cap whereas male nurses did not, though male nurses had to wear a tunic with epaulettes. They claimed discrimination.
Held: A requirement for female to wear a nurse’s cap where no similar rule applied for men, was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.408523

D Woodrup v London Borough of Southwark: CA 2003

Simon Brown LJ said: ‘As will readily be seen, it provides (perhaps rather surprisingly) that someone is to be treated as disabled even though they are not in fact disabled (even, that is, where they suffer no substantial adverse effect on their ability to carry out normal day-to-day activities) if, without the medical treatment they are in fact receiving, they would suffer that disability. One asks the question whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect?’ and in a ‘deduced effect’ case ‘clear medical evidence would be expected, not just the Applicant’s own testimony’.

Judges:

Simon Brown LJ

Citations:

[2003] IRLR 111

Statutes:

Disability Discrimination Act 1995 3(2)(a)

Jurisdiction:

England and Wales

Citing:

Appeal From – Woodrup v London Borough of Southwark EAT 4-Feb-2002
EAT Disability Discrimination – Disability . .

Cited by:

Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – J v DLA Piper UK Llp EAT 15-Jun-2010
EAT DISABILITY DISCRIMINATION – Disability
Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 18 June 2022; Ref: scu.416810

Lloyd v Brassey: CA 1969

A farm was sold as a going concern with land and all stock-in-trade.
Held: This was a ‘transfer of a trade, business, or undertaking.’ It was the same business being carried on both before and after the transfer. The same staff were employed. Lord Denning MR considerd the nature of a redundancy payment: ‘As I read the Act, a worker of long standing is now recognised as having an accrued right in his job ; and his right gains in value with the years. So much so that if the job is shut down, he is entitled to compensation for loss of the job – just as a Director gets compensation for loss of office. The director gets a golden handshake. The worker gets a redundancy payment. It is not unemployment pay. I repeat ‘not’. Even if he gets another job straightaway, he nevertheless is entitled to full redundancy payment. It is, in a real sense, compensation for long service.’
Salmon LJ said: ‘Of the many factors to be taken into account in considering whether or not a change in the ownership of a business has occurred, none by itself nor a combination of any of them together is necessarily conclusive. Everything depends on a broad view of all the circumstances of each particular case. In this case, having come to the conclusion that there was ample evidence to support the tribunal’s finding, I would allow the appeal.’

Judges:

Lord Denning MR, Salmon LJ

Citations:

[1969] 2 WLR 310, [1969] 1 All ER 382, [1969] 2 QB 98

Jurisdiction:

England and Wales

Cited by:

Cited – Melon v Hector Powe Ltd HL 6-Nov-1980
Appeals on the ground of perversity will only succeed where it is shown that no reasonable Tribunal, properly directed in law, could have reached the decision made. The court set out the duties and powers of appellate courts in employment law: ‘It . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.402545

Kores Manufacturing Co Ltd v Kolok Manufacturing Ltd: CA 1959

When considering a post employment restrictive covenant on an employee, the court should allow that an employer has a legitimate interest in maintaining a stable and trained workforce. However, even accepting that interest, an employer has no legitimate interest to prevent an employee, upon termination from taking employment with a competitor.
Jenkins LJ said: ‘Apart from the question of trade secrets and confidential information, we have described the matter requiring protection as being the adequacy and stability of the plaintiffs’ and defendants’ respective complements of employees. That, no doubt, is an interest which employers are entitled to protect by all legitimate means, as by paying good wages and making their employment attractive. We have further described the danger against which that interest required protection as being the unimpeded secession of employees of either of the parties to that of the other of them under the inducement of higher wages or better working conditions. But an employer has no legitimate interest in preventing an employee, after leaving his service, from entering the service of a competitor merely on the ground that the new employer is a competitor. The danger of the adequacy and stability of his complement of employees being impaired through employees leaving his service and entering that of a rival is not a danger against which he is entitled to protect himself by exacting from his employees covenants that they will not, after leaving his service, enter the service of any competing concern. If in the present case the plaintiffs had taken a covenant from each of their employees that he would not enter the service of the defendants at any time during the five years next following the termination of his service with the plaintiffs, and the defendants had taken from their employees covenants restraining them in similar terms from entering the employment of the plaintiffs, we should have thought that (save possibly in very exceptional cases involving trade secrets, confidential information and the like) all such covenants would on the face of them be bad as involving a restraint of trade which was unreasonable as between the parties. Here the plaintiffs and the defendants have, as it seems to us, sought to do indirectly that which they could not do directly, by reciprocal undertakings between themselves not to employ each other’s former employees, entered into over the heads of their respective employees, and without their knowledge. It seems to us to be open to question whether an agreement such as that, directed to preventing employees of the parties from doing that which they could not by individual covenants with their respective employers validly bind themselves not to do, should be accorded any greater validity than individual covenants by the employees themselves would possess.’

Judges:

Jenkins LJ

Citations:

[1959] Ch 109

Jurisdiction:

England and Wales

Cited by:

Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.416383

Octavius Atkinson and Sons Ltd v Morris: CA 1989

The employee claimed unfair dismissal. He had been dismissed without notice at 2:00pm. Later the employer discovered that it might have offered alternate employment. The Tribunal had found that the opportunity emerged before the employee got home, and that until then he remained employed.
Held: The employer’s appeal succeeded. The summary dismissal took effect instantly, and by the time of the discovery the claimant was no longer an employee. At that point the employer’s contractual duty to make the alternate offer to an employee was no longer binding on it.

Judges:

Browne-Wilkinson VC

Citations:

[1989] ICR 431

Jurisdiction:

England and Wales

Citing:

Appeal from – Octavius Atkinson and Sons Ltd v Morris EAT 1988
The employee, a steel erector, was summarily dismissed at 2:00. He arrived home at 4:00pm by which time the employer had discovered that alternate work was available which it would have been obliged to offer to him as an employee.
Held: An . .

Cited by:

Cited – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.372328

Wishart v National Association of Citizens Advice Bureaux Ltd: CA 1990

Mustill LJ said: ‘Undeniably, it is possible for an employer to make an offer conditional on something to be objectively determined (for example, the passing of a medical examination).’

Judges:

Mustill LJ

Citations:

[1990] ICR 794

Jurisdiction:

England and Wales

Cited by:

Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 18 June 2022; Ref: scu.346903

Marriott v Oxford and District Co-operative Society Ltd (No. 2): CA 1970

After pointing out that the statutory definition of ‘the relevant date’ for redundancy payment purposes . . is the date of the expiry of the notice or (if there is no notice) the date on which the termination takes effect, Winn LJ said: ‘That is consistent with the whole concept that a contract of employment for the purposes of this statute is brought to an end, i.e., it is terminated, when it is so broken that no further full performance of its terms will occur.’

Judges:

Winn LJ

Citations:

[1970] 1 QB 186

Jurisdiction:

England and Wales

Cited by:

Cited – Robert Cort and Son Ltd v Charman EAT 1981
Where an employee is dismissed summarily, the effective date of termination of his employment for the purposes of employment law is the date of the summary dismissal. It makes no difference that the dismissal might have amounted to a repudiatory . .
Cited – Kirklees Metropolitan Council v Radecki CA 8-Apr-2009
The council appealed against a finding that the claimant’s case had been brought in time. There had been negotiations for a compromise agreement which had failed. The EAT had found it unclear that the employment had ended at the point asserted by . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.331991

Corpora Software Ltd v Perry: EAT 1 May 2008

EAT Victimisation Discrimination – Unfair dismissal – Polkey deduction
The Appellants employed the Respondent as Sales Operation Director. She was dismissed on spurious grounds after she failed to agree a salary reduction and a change in her role. She complained of unfair dismissal, sex discrimination and victimisation in the grievance procedure which she launched together with the appeal against her dismissal. The ET held the appeal procedure and the grievance process were shams intended protect the employer’s position in anticipated ET proceedings. The dismissal was (as was conceded) unfair, but the sex discrimination allegations failed. However the ET found victimisation in respect of the way the grievance procedure was run. The ET held there was no basis for a Polkey reduction. The Appellants asserted the ET decision that the grievance procedure was a sham was perverse, that the ET erred in law in its criticism of the procedure, that the ET was wrong to hold there was victimisation and that it was wrong not to allow a Polkey reduction.
Held: the ET’s finding that the grievance procedure was a sham was not perverse, that since the procedure was a sham the ET was not wrong in its criticism of the process, that it was entitled to find victimisation and entitled to hold there should be no Polkey reduction, but that when it came to the assessment of compensation it would have to have regard to all the evidence which had a bearing on the loss caused including evidence suggesting the Respondent would not have remained indefinitely with the Appellants.

Citations:

[2008] UKEAT 0039 – 08 – 0105

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.267398

James Cook and Co (Wivenhoe) Ltd v Tipper: CA 1990

A number of shipyard workers were dismissed by their employers but believed credibly that there was a realistic prospect that they might be re-employed. Only later did it come to their knowledge that the shipyard at which they worked was to close down. The employer appealed a decision allowing the claims to go ahead out of time. Only then did they present their complaints to an Industrial Tribunal.
Held: It had not been reasonably practicable for the claimants to complain of unfair dismissal until the closure of the business (which occurred after the three-month time limit has passed) but it was reasonable for the claims to have been brought within 2 weeks of the date of closure. The fact that the company closed shortly after making redundancies may properly allow the capping of the compensatory award for unfair dismissal for redundancy on that first round.
Neill LJ said: ‘As has been emphasised in the authorities, the expression ‘reasonably practicable’ must be looked at in a common sense way.’

Judges:

Neill LJ, Farquharson LJ, Sir Roger Ormrod

Citations:

[1990] ICR 716, [1990] IRLR 386

Jurisdiction:

England and Wales

Cited by:

Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 18 June 2022; Ref: scu.268118

Patrick v London Borough of Lambeth: CA 1 Nov 2002

Application for permission to appeal. The application by as Miss Patrick. She was employed by the London Borough of Lambeth, the proposed respondent to this appeal, as a social worker from April 1989. She was suspended in June 1999 in circumstances which I shall mention and was dismissed on 3rd February 2000 for alleged gross misconduct.

Citations:

[2002] EWCA Civ 1721

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 June 2022; Ref: scu.217856

Duncan Webb Offset (Maidstone) Ltd v Cooper and Another: EAT 15 Jun 1995

A company owned subsidiary companies in the printing industry at Maidstone, Basildon and St Albans. Three employees worked for the group. The Maidstone business was transferred in a transfer to which the 1981 Regulations applied. The three employees who worked for the group were not on the list of those employees who were to be transferred. When they complained an Employment Tribunal found that they spent some of their time working for the undertakings at Basildon and St Albans but 80 per cent of the time, broadly speaking, in each case working for the Maidstone operation.
Held: The appeals failed. The Employment Tribunal had been entitled to conclude that those employees were transferred with the Maidstone operation notwithstanding that some of their duties, no doubt on a somewhat fluctuating basis we might add, were performed for others than Maidstone. Morison J said that it was helpful to consider as a factual situation the following: ‘X has a business in which he employs a number of people. X transfers part of his business to Y. In order to determine which employees were employed by X in the part transferred it is necessary to ask: which of X’s employees were assigned to the part transferred – see Botzen. In Gale [1994] IRLR 292 it was suggested that the question might be asked whether a particular employee was ‘part of the . . human resources’ of the part transferred, which is the same thing put another way. The contracts of employment of those who were so assigned will, unless the employees object, pass over to the transferee, thus giving effect to the purpose of the Regulations and the Acquired Rights Directive, pursuant to which they were made, that an employee should not forfeit his job because of a change in the identity of his employer. . . There will often be difficult questions of fact for Industrial Tribunals to consider when deciding who was ‘assigned’ and who was not. We were invited to give guidance to Industrial Tribunals about such a decision, but decline to do so because the facts will vary so markedly from case to case. In the course of argument a number were suggested, such as the amount of time spent on one part of the business or the other; the amount of value given to each part by the employee; the terms of the contract of employment showing what the employee could be required to do; how the cost to the employer of the employee’s services had been allocated between the different parts of the business. This is, plainly, not an exhaustive list; we are quite prepared to accept that these or some of these matters may well fall for consideration by an Industrial Tribunal which is seeking to determine to which part of his employer’s business the employee had been assigned.’

Judges:

Morrison J

Citations:

[1995] UKEAT 47 – 95 – 1506, [1995] IRLR 633

Links:

Bailii

Statutes:

Transfer of Undertaings (Prorection of Employ,ent) Regulations 1981

Jurisdiction:

England and Wales

Citing:

Applied – Arie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv ECJ 7-Feb-1985
ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, . .

Cited by:

Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.209181

Ali v Christian Salvesen Food Services Ltd: EAT 9 Jun 1995

Citations:

[1995] UKEAT 36 – 94 – 0906

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ali v Christian Salvesen Food Services Ltd EAT 19-Dec-1994
. .

Cited by:

Appeal from – Ali v Christian Salvesen Food Services Limited CA 18-Oct-1996
A collective agreement freely and exhaustively negotiated with a Union was not to have an extra term implied. Waite LJ warned that such agreements should be concise and clear, so as to be readily understood by all who are concerned to operate it . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 June 2022; Ref: scu.209166