Category: Employment

Alemo-Herron and Others v Parkwood Leisure Ltd: ECJ 19 Feb 2013

ECJ Opinion – Transfer of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(3) – Collective agreement applicable to the transferor and to the employee at the time of the transfer – Dynamic clauses referring to current and future collective agreements – Scope of the judgment of the Court of Justice in Werhof – Negative aspect of the fundamental right to freedom of association – Freedom to conduct a business – Articles 12 and 16 of the Charter of Fundamental Rights of the European Union)

Judges:

Cruz Villalon AG

Citations:

C-426/11, [2013] EUECJ C-426/11

Links:

Bailii

Citing:

At SC – 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 . .
At CA – 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 . .
At EAT – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 14 November 2022; Ref: scu.471042

Drysdale v Department of Transport (The Maritime and Coastguard Agency): EAT 13 Feb 2013

EAT Practice and Procedure : Withdrawal, dismissal, and costs
On the second day of a hearing the Claimant’s representative, his wife, withdrew the Claimant’s claim; the Respondent applied for the claim to be dismissed on withdrawal; the ET dismissed it; the Respondent applied for costs; the Claimant and his wife left during the application despite being asked to listen to it; and the ET made an order for costs against the Claimant in the sum of andpound;1050.
It was argued that in the circumstances the Claimant’s representative did not have ‘capacity’ to withdraw his claim when she did, and the ET should have considered and enquired into her state of health and authority to withdraw the proceedings before treating the withdrawal as valid and in any event before dismissing the claim. It was further argued that the claim should not have been dismissed in the absence of a written application. It was further argued that the ET should have afforded the Claimant an opportunity to make submissions on the question of costs. Affidavits were lodged as to what took place at the hearing and the comments of the Employment Judge and ET members were sought.
Held: Appeal dismissed. In the circumstances as the EAT found them to be the ET did not have a duty to enquire into the health of the Claimant’s representative; the Claimant’s representative had authority to withdraw the claim and the ET did not have a duty to enquire into her authority or to see whether the Claimant agreed with her decision. The ET was entitled to determine the question of dismissal without a written application. The Claimant and his representative having left during the making of the application for costs, the ET was not under a duty to give them a further opportunity to make submissions.

Judges:

Richardson J

Citations:

[2012] UKEAT 0171 – 12 – 1302

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 14 November 2022; Ref: scu.470963

Singh v Reading Borough Council: EAT 12 Feb 2013

EAT UNFAIR DISMISSAL – Constructive unfair and discriminatory dismissal
RACE DISCRIMINATION
PRACTICE AND PROCEDURE – Judicial proceedings immunity
The Claimant headteacher is alleging in proceedings currently adjourned part-heard that she was the victim of a concerted campaign of racial discrimination, harassment and victimisation, pursued by parents, staff and governors at the school, and encouraged by senior employees of the council, in order to remove her from her post.
Before the hearing began the Respondents served a witness statement from the School Business Manager, who is to be called as a witness on their behalf. The Claimant alleges that the statement contains lies as a result of improper pressure being put upon the witness by the Respondents to make a statement unhelpful to the Claimant. The Claimant resigned from her employment and her ET1 was amended to include claims of constructive dismissal.
The ET held on a PHR that the contents of this witness statement and the conduct connected with its preparation attracted absolute judicial proceedings immunity; that the Claimant could not rely upon this allegation in support of her complaints of constructive dismissal; and that the offending paragraphs of her amended claim should be struck out, on the basis that there was no jurisdiction to determine them.
On the Claimant’s appeal, on the basis that the ET erred in holding that the immunity applied in these circumstances, the law relating to judicial proceedings immunity and its rationale was considered in detail. On analysis the Tribunal’s reasoning and conclusions were held to be correct. The appeal was therefore dismissed.

Judges:

Cox J

Citations:

[2012] UKEAT 0540 – 12 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cutler v Dixon KBD 1585
‘It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he . .

Cited by:

Appeal from – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 November 2022; Ref: scu.470906

Felicien v Metropolitan Police Authority and Another: EAT 23 Jan 2013

EAT Practice and Procedure : Costs – Appeal against decision to hear wasted costs application prior to completion of proceedings – Dismissed because decision superseded by subsequent developments – Observations about undesirability of delay in producing a written record of Tribunal judgments.

Judges:

Underhill J

Citations:

[2013] UKEAT 0362 – 12 – 2301

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 14 November 2022; Ref: scu.470962

Mills v London Borough of Brent: EAT 12 Feb 2013

EAT Practice and Procedure : Striking-Out or Dismissal – Allegations of apparent bias by an Employment Judge dismissed on the facts. The Employment Judge was entitled to strike out the Claimant’s third claim against the local education authority when she had withdrawn her first two claims against her employer school based on the same facts.

Judges:

Birtles J

Citations:

[2012] UKEAT 0545 – 11 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 14 November 2022; Ref: scu.470905

Heafield v Times Newspaper Ltd: EAT 17 Jan 2013

EAT Religion or Belief Discrimination – The Appellant, a sub-editor, who was a Roman Catholic, was offended by an editor referring to ‘the fucking Pope’ when chasing a delayed article and brought a claim for harassment on the grounds of religious belief. The Tribunal held that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Held: The Tribunal’s decision was unarguably correct – Richmond Pharmacology v Dhaliwal and Land Registry v Grant applied.

Judges:

Underhill J

Citations:

[2013] UKEAT 1305 – 12 – 1701

Links:

Bailii

Statutes:

Employment Equality (Religion or Belief) Regulations 2003

Jurisdiction:

England and Wales

Citing:

Cited – Richmond Pharmacology v Dhaliwal EAT 12-Feb-2009
EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the . .
Cited – Grant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 14 November 2022; Ref: scu.470904

London Borough of Harrow v Cunningham: EAT 2 Nov 1995

The council appealed a finding that the claimant had been unfairly dismissed. He worked in the Cleansing Department, but took on additional private work in refuge disposal in breach of his contract. A co-worker who had done the same was not dismissed because of his exemplary record.
Held: The appeal succeeded. The tribunal, when considering the two employees had not ‘asked itself whether the distinction made between the two cases by [the employer] was irrational’.

Judges:

Clark P J

Citations:

[1995] UKEAT 1098 – 94 – 0211, [1996] IRLR 256

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Securicor Ltd v Smith CA 1989
When the tribunal looks at the decision by the employer to dismiss, it should ask not what its own opinion was but whether the employers response was within the band of reasonable responses open to in acting on its findings. Where two employees are . .

Cited by:

Cited – Cunningham v Oaklands College EAT 6-Nov-2003
. .
Cited – Epstein v Royal Borough of Windsor and Maidenhead EAT 15-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Dismissal by Employment Tribunal of Appellant lifeguard’s claim for unfair dismissal challenged, because the Tribunal is said to have erred in not . .
Cited – Strouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.209508

Asda Stores Ltd v Thompson, Pullan, and Caller: EAT 16 Jun 2003

The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of anonymous witnesses. The employer had successfully appealed against an order for disclosure of all the statements taken.
Held: Burton P said: ‘It is plainly the case, on what we understand of the facts that the allegations of drug taking and violence are serious, and that the fears of witnesses, whether or not justified in the absolute sense, are real, and the concerns of the respondent are real, and the obligations of the respondent have been upheld by this Appeal Tribunal in October 2001. Of course it is right that the tribunal has the final say, subject to appeal, but the tribunal cannot be in a position to make as informed a judgment as the respondent would be.’

Judges:

Burton P

Citations:

[2003] EAT 0063 – 03 – 1606, [2003] UKEAT 0063 – 03 – 1606, EAT/0063/03, [2004] IRLR 598

Links:

Bailii, Bailii, EATn

Jurisdiction:

England and Wales

Citing:

See Also – Asda Stores Ltd v Thompson and others EAT 11-Oct-2001
. .
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 – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – 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 – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – 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 – Secretary of State for Trade and Industry v Cook and others EAT 13-Dec-1996
Employees who are otherwise qualified employees will transfer with their undertaking even though they are unaware of the identity of their new employer. Morison J considered the situation where there was a transfer of the undertaking, but the . .
Cited – British Railways Board v Natarajan EAT 1979
Arnold J considered when it was appropriate for the company’s confidential material to be disclosed to employee claimants in tribunal proceedings: ‘We think that before deciding whether an examination is necessary, the judge or chairman of the . .
Cited – Prince PLC v Prince Sports Group Inc ChD 1998
In a threat action for trade mark infringement, the plaintiff had only supplied services. The defendant made a general threat without limiting it to proceedings in respect of goods or services. The defendant argued that the threat would be . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.191623

Gdynia American Shipping Lines (London) Ltd v Chelminski: CA 8 Jul 2004

The employers had sought to appeal from a decision of the employment tribunal. The EAT had refused it as out of time.
Held: The rules required the appellant to file within 42 days of receiving the decision, the notice of appeal together with a copy of the tribunal’s written reasons. ‘Sent’ meant the date on which the order is posted by the Employment Tribunal; the date on the document when the order was sent to the parties. The appellants had failed to include the decision. Other rules as to deemed time of delivery were inapplicable when the issue was the absence of a necessary document. The appeal was out of time.

Judges:

Lord Justice Pill Lord Justice Longmore Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 871, Times 21-Jul-2004, [2004] IRLR 725, [2004] ICR 1523, [2004] 3 All ER 666

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Wrongly decided – Immigration Advisory Services v Oommen EAT 19-Mar-1997
The claimant had been ordered to pay a deposit as a condition of being allowed to proceed with the claim which the tribunal had judged to have no reasonable prospect of success. The claim was struck out after the tribunal had been wrongly told that . .
Applied – Hammersmith and Fulham London Borough Council v Ladejobi EAT 2-Sep-1999
The time limits for lodging appeals against Employment tribunal rulings are strict. The date of promulgation is the operative date from which the date sent is to be calculated. The rules set aside the normal rules on interpretation as to when a . .
Applied – Sian v Abbey National Plc EAT 25-Jun-2003
EAT Practice and Procedure – Time for appealing . .

Cited by:

Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.198602

Attorney-General v Blake: CA 16 Dec 1997

A former member of the security services, convicted for spying, had written a book. The AG appealed a refusal to prevent publication. The court upheld denied the appeal on the breach of fiduciary claim. The Attorney General amended his statement of claim and advanced a public law claim to asserted, not a private law right on behalf of the Crown, but a claim for relief in his capacity as guardian of the public interest.
Held: In this latter capacity the Attorney General may, exceptionally, invoke the assistance of the civil law in aid of the criminal law. The jurisdiction of the civil courts was not limited to an injunction restraining the commission or repeated commission of an offence. If a criminal offence has already been committed, the jurisdiction extends to enforcing public policy with respect to the consequences of the commission of that crime, e.g. restraining receipt by the criminal of a further benefit as a result of or in connection with that crime. This was an exceptional case in which the Attorney General could intervene by civil proceedings, in aid of the criminal law, to uphold the public policy of ensuring that a criminal does not retain profit directly derived from the commission of his crime. The court made an order that the defendant be restrained from receiving any payment resulting from the exploitation of the book in any form or any information therein relating to security and intelligence which is or has been in his possession by virtue of his position as a member of the Secret Intelligence Service.

Judges:

Lord Woolf M.R., Millett and Mummery L.JJ

Citations:

Times 22-Dec-1997, Gazette 28-Jan-1998, [1997] EWCA Civ 3008, [1998] Ch 439, [1998] EMLR 309, [1998] 1 All ER 833

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Attorney General v Blake ChD 23-Apr-1996
The Crown claimed that in writing a book and authorising its publication, Blake, a former security services employee, was in breach of fiduciary duties he owed to the Crown.
Held: Blake was not to be prevented from earning money from the . .

Cited by:

Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Lists of cited by and citing cases may be incomplete.

Administrative, Media, Employment

Updated: 13 November 2022; Ref: scu.180885

Kwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited: CA 20 Jan 1998

Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had not been unfairly dismissed.
Held: The legislation provided ‘special protection for the security of employment of pregnant women’. It had to be construed accordingly. The issue was whether the claimants had exercised the right to return to work under section 42, and ‘The provisions relating to the exercise of the right to return to work in section 42 do not expressly require an actual return to work, an actual presence at work on the notified day of return, for the exercise of the right to be complete and effective. They do not expressly state that the right will be terminated, divested or avoided by the employee’s non-attendance at work.’ A worker on maternity leave but unable to return to work on the day she had fixed for her return because of temporary incapacity, did not thereby lose right to return to work. The right to return was exercised on the sending of the notice fixing the day she intended to return.

Judges:

The Master of The Rolls Lord Woolf Lord Justice Aldous Lord Justice Mummery

Citations:

Gazette 18-Mar-1998, Times 05-Mar-1998, Gazette 16-Apr-1998, [1998] EWCA Civ 43, [1998] ICR 848, [1998] IRLR 245

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 42 57, Employment Rights Act 1996 71

Jurisdiction:

England and Wales

Citing:

Cited – Crouch v Kidsons Impey 1996
. .
Cited – Kolfor Plant Ltd v Wright CA 1982
The court considered a claim for Maternity leave.
Lord McDonald said: ‘In our opinion an employee who claims to have been dismissed through the failure of her employer to permit her to return to work after absence due to pregnancy or . .
Cited – Lavery v Plessey Telecommunications Ltd 1983
The court considered a claim for maternity leave where the employee had failed to give the full notice required. . .
Cited – McKnight v Addlestones (Jewellers) CANI 1984
. .
Cited – Dowuona v John Lewis Plc 1987
. .
Cited – Kelly v Liverpool Maritime Terminals Limited CA 1988
An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant’s maternity . .
Cited – Hilton International Hotels (Uk) Ltd v Kaissi EAT 7-Mar-1994
A failure to comply with the Act does not automatically terminate the contract. . .
Cited – Brown v Stockton-on-Tees Borough Council HL 1989
The House construed the statutory provisions relating to the return of a female employee after maternity leave.
Held: The legislation provided ‘special protection for the security of employment of pregnant women’. ‘It was the Employment . .

Cited by:

Cited – Halfpenny v IGE Medical Systems Ltd HL 19-Dec-2000
A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given . .
Cited – Halfpenny v IGE Medical Systems Ltd CA 18-Dec-1998
Where an employee had taken extended maternity leave but was then unable to return for post-natal depression, but she was dismissed, the resumption of her contract on issuing her notice of intention to return revived her sickness rights anew.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.143521

Barry v Midland Bank Plc: CA 18 Dec 1997

No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time

Citations:

Gazette 26-Feb-1998, Times 29-Dec-1997, [1998] 1 All ER 805, [1997] EWCA Civ 3037, [1999] ICR 319, [1998] IRLR 138

Links:

Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Appealed to – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Appeal from – Barry v Midland Bank Plc EAT 25-Oct-1996
It was not sex discrimination to calculate severance pay for an employee on her current part time earnings. . .

Cited by:

Appeal from – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 13 November 2022; Ref: scu.143436

Captain Friend v Civil Aviation Authority: CA 29 Jan 1998

Employee who had consented to disciplinary process by contract could not sue for defamation for publication of details of accusation.

Citations:

Times 05-Feb-1998, [1998] EWCA Civ 94

Jurisdiction:

England and Wales

Citing:

See Also – Friend v Civil Aviation Authority EAT 24-Jul-1995
. .
Lists of cited by and citing cases may be incomplete.

Defamation, Employment

Updated: 13 November 2022; Ref: scu.80688

Digital Equipment Co Ltd v Clements (No 2): CA 4 Dec 1997

Judges:

Bedlam LJ, Potter LJ, Sir John Balcombe

Citations:

Times 02-Jan-1998, Gazette 21-Jan-1998, [1997] EWCA Civ 2899, [1997] IRLR 140, [1998] ICR 258

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 74

Jurisdiction:

England and Wales

Citing:

Appeal from – Digital Equipment Co Ltd v Clements EAT 11-Dec-1996
An excess redundancy payment is to be deducted from damages before any per cent pro rata redeuction is to be made for any other reason. An employer paying over statutory minimum on redundancy is entitled to full credit for extra payment of had . .

Cited by:

Cited – K Singh v The Watch Security Ltd EAT 4-Mar-2004
EAT The claimant succeeded in his unfair dismissal claim, but appealed against an 80% deduction for the contribution his own behaviour and 66% for his failings at the work. The total deduction being greater than . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.143298

Steer v Stormsure Ltd (Sex Discrimination, Human Rights): EAT 21 Dec 2020

The Appellant has presented a claim in the Employment Tribunal in which she alleges that she was dismissed by the Respondent and that the dismissal amounted to sex discrimination and/or victimisation on the ground that she had done a protected act, contrary to the Equality Act 2010. She appeals against the Employment Tribunal’s refusal to permit her to apply for interim relief. The Appellant accepts that no such right appears on the face of the Equality Act 2010.
However, she says that the right to claim interim relief must be read into the Equality Act 2010, because this is required by European Law and/or by the European Convention on Human Rights (‘ECHR’), and/or that such a right should be granted by giving horizontal direct effect to fundamental principles of EU law.
European Law
The Appellant relies on three grounds relating to European Law. The first two are that the failure of domestic law to provide interim relief in discrimination/victimisation cases relating to dismissal contravenes the EU law principles of effectiveness and equivalence. She says this should be remedied by the application of a conforming interpretation to the Equality Act 2010, by reading in words to the Act, granting a right to claim interim relief in dismissal cases. The Appellant’s third contention is that the failure to provide interim relief in cases such as this is in breach of fundamental principles of EU law and, in particular, Articles 15 and 47 of the EU Charter, and that these principles should be given horizontal direct effect by reading appropriate wording into the Equality Act 2010 so as to provide a right to claim interim relief.
Effectiveness. The absence of a right to claim interim relief in discrimination/victimisation cases relating to dismissal does not infringe the EU law principle of effectiveness. Domestic law provides for full compensation, plus interest, and this complies with the requirements of effectiveness. The delays in Employment Tribunal proceedings do not necessitate the provision of interim relief.
Equivalence. The principle of equivalence requires that the procedures and remedies for claims derived from EU law should be no less favourable than those that apply to similar actions of a domestic nature. For these purposes, a claim, under the Employment Rights Act 1996, section 103A, for ‘automatic’ unfair dismissal where the principal reason for dismissal is the making of a protected disclosure, is a similar action of a domestic nature to a discrimination/victimisation claim resulting from dismissal. However, when the procedural rules and remedies are compared as a whole, the procedures and remedies for discrimination/victimisation claims resulting from dismissals are not less favourable than those that apply to claims under section 103A. Further and alternatively, the equivalence principle is complied with because the procedures and remedies that apply to discrimination/victimisation claims are no less favourable than those that apply to another similar action of a domestic nature, namely a claim for ‘ordinary’ unfair dismissal, under the Employment Rights Act 1996, section 98.
Fundamental Principles of EU law. There is no breach of fundamental principles of EU law, because domestic law provides an effective remedy for discrimination/victimisation cases. Further and alternatively, fundamental principles of EU law, as they apply to procedural rules and remedies, do not go further than the principles of effectiveness and equivalence, which have been complied with by domestic law. The question of horizontal direct effect does not, therefore, arise.
Conforming interpretation. Even if the EAT had found that there was a breach of the principles of effectiveness or equivalence, it was not possible for a conforming interpretation to be applied to the ERA 2010, by reading in a right to apply for interim relief in discrimination/victimisation cases arising from dismissals, because that would cross the line between interpretation and quasi-legislation, and because to do so would require the EAT to take decisions for which it is not equipped and would give rise to important practical repercussions which the EAT is not equipped to evaluate.
The ECHR
The Appellant contends that the failure to grant a right to claim interim relief in discrimination/victimisation cases arising from dismissals infringes the ECHR, Article 14, when read with Articles 6, 8 and Article 1 of Protocol 1.
Article 14 is engaged, because the matter in question comes within the ambit of Article 6, as it relates to judicial remedies for the enforcement of civil rights. The Appellant has an ‘other status’ for the purposes of Article 14, namely that of being an individual who wishes to bring a claim of dismissal/victimisation arising from dismissal.
It is appropriate to consider together the questions of whether those who wish to bring a claim under s103A are in an analogous situation, and whether the difference in treatment can be justified. The difference has not been justified. No legitimate aim has been advanced for the difference in treatment. The Respondent, being a private employer, is not in a position to say why the difference exists, and the Government did not respond to an invitation to intervene in this appeal. In these circumstances, it would be inappropriate for the EAT to speculate about whether, and, if so, why, the difference in treatment is a proportionate means of achieving a legitimate aim. The burden rests with the Respondent to justify the difference and, through no fault of its own, it has been unable to do so.
Accordingly, the Appellant has made out a breach of Article 14, ECHR.
However, the EAT has no power to make a declaration of incompatibility under the Human Rights Act 1998, section 3, and, for the same reasons as apply to the European Law part of the appeal, it would be wrong for the EAT to apply a conforming interpretation to the ERA 2010, in order to read in a right to apply for interim relief in discrimination/victimisation claims arising from dismissals. Therefore, the EAT cannot grant any relief for this breach.
For these reasons, the appeal is dismissed. Leave to appeal has been granted to appeal to the Court of Appeal, so that the Court of Appeal can consider whether to grant a declaration of incompatibility for the breach of Article 14.

Citations:

[2020] UKEAT 0216 – 20 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Human Rights, European

Updated: 13 November 2022; Ref: scu.661674

Khan v Royal Mail Group and Others: EAT 29 Jan 2013

EAT RACE DISCRIMINATION AND HARASSMENT
The appellant identified 11 specific acts of discrimination against him on grounds of race or religion in dealing with which he argued the Tribunal had erred in law, by failing to find the true facts, failing to shift the burden of proof to the employer, or failing adequately to explain its reasoning. Although the Tribunal’s approach to at least one was muddled, in respect of its application of the burden of proof provisions (of which, conspicuously, it did not remind itself) properly understood the Tribunal sufficiently expressed its reasons for reaching the decisions it did, most of which turned entirely on findings of fact it was entitled to make, and none of which betrayed any error of law.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0160 – 11 – 2901

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470764

Hill v Governing Body of Great Tey Primary School: EAT 29 Jan 2013

EAT UNFAIR DISMISSAL/POLKEY DEDUCTION/HUMAN RIGHTS
A school mid-day dinner assistant told a child’s parents that the child had been tied to a railing in the playground and whipped across the legs by other pupils. She was suspended, She complained to the press about the suspension and in doing so confirmed what she had told the parents. Her claim that she was dismissed for making a disclosure in the public interest was rejected, but her dismissal was held unfair on procedural grounds. At the subsequent remedy hearing, the Tribunal concluded that she would have been dismissed fairly after 2 months if proper procedure had been followed, and compensation for that 2 months should be reduced by 80% on account of her contributory conduct, and awarded andpound;49.99.
An appeal arguing that the ET took an erroneous approach to making a Polkey deduction was upheld; as was the ground that the ET approached central issues of confidentiality by applying its own paraphrase of the qualifications to Article 10 of the ECHR (freedom of speech) rather than the legislative words (it should have adopted a structured approach to applying those actual words). That might also have affected the assessment of contributory fault, and it was in event unclear precisely what was said to be confidential and to whom, the disclosure of which was the basis for dismissal. Since the claimant’s argument that the ‘Polkey deduction’ should be nil since any dismissal would inevitably be unfair because a primary school had no right to require confidentiality from its staff was rejected, and the Appeal Tribunal in no position to decide the matter for itself, it was remitted to a Tribunal for re-determination of remedy (submissions being invited as to the identity of that tribunal).

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0237 – 12 – 2901

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

England and Wales

Employment

Updated: 13 November 2022; Ref: scu.470763

Queen Mary University of London v Osonnaya: CA 15 Nov 2012

The appellant appealed against the striking out of her appeal. She had been employed by the respondents as a result of arrangements made by a third party, but the employment was terminated after the appellant had brought proceedings against her and the third party alleging frauds.
Held: The appeal failed: ‘having looked at the massive volume of papers in this case, that Kenneth Parker J was plainly entitled to take the view that he did that the appeal should be struck out. There had been inordinate and inexcusable delay in its prosecution. Where a default judgment had been obtained so many years before and the appellate processes are clear and available to people, there can be no excuse for the failure of this appellant to have progressed the matter.’

Judges:

Sir John Thomas P QBD, Moses, Black LJJ

Citations:

[2012] EWCA Civ 1858

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Litigation Practice

Updated: 13 November 2022; Ref: scu.470738

Jennings v Barts and The London NHS Trust: EAT 5 Feb 2013

EAT DISABILITY DISCRIMINATION – Disability related discrimination
If a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name and, given that whether or not an employer knows or should have known there is a disability is essentially a question of fact (see Wilcox and Birmingham CAB Services Ltd [2011] Eq LR 810), the Employment Tribunal was entitled to find that the Cross Appellant employer had actual or constructive knowledge of the disability.
Although the Employment Tribunal overstated the effect of the judgment in Project Management Institute v Latif [2007] IRLR 579 (contrary to what the Employment Tribunal tended to suggest, it does not place any evidential burden on a Claimant to do more than identify alleged reasonable adjustments) and whilst it is always better for an Employment Tribunal to deal specifically with each suggested adjustment that has been identified by a Claimant, particularly where a CMD has confirmed that those matters are in issue, the Employment Tribunal’s judgment addressed the issue of reasonable adjustments to a sufficient extent and the Appeal must be dismissed.
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal had reached a tenable conclusion on the factual material and the judgment was not perverse.

Judges:

Hand QC J

Citations:

[2012] UKEAT 0056 – 12 – 0502

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470766

Thomas Cook Airline Services Ltd v Wolstenholme: EAT 16 Jan 2013

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Employment Tribunal proceedings withdrawn; High Court proceedings intimated. Application to dismiss under ET R25(4) rejected by Employment Judge. Respondent’s appeal dismissed. New proceedings did not amount to an abuse. Verdin considered.

Judges:

Peter Clark J

Citations:

[2013] UKEAT 0353 – 12 – 1601

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Verdin v Harrods Ltd EAT 21-Dec-2005
EAT Contract of Employment – Damages for breach of contract – The Tribunal Chairman erred in law in concluding that Mrs Verdin’s breach of contract claim should be dismissed.
Rule 25 of the Employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.470765

Sandford and Another v Newcastle Upon Tyne Hospitals NHS Foundation Trust: EAT 10 Jan 2013

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
SOSR dismissals. New, less favourable terms and conditions of employment offered and refused by Claimants. Contracted terminated on notice with offer of re-engagement (the accepted). ET held’ dismissal fair. No error of law shown. Claimants’ appeals dismissed.

Judges:

Peter Clark J

Citations:

[2013] UKEAT 0324 – 12 – 1001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 November 2022; Ref: scu.470641

McBride v Employment Appeal Tribunal: SCS 25 Jan 2013

The appellant had been employed by the Police as a fingerprint officer. She was unfairly dismissed after a wrongful accusation. The tribunal ordered that she be reinstated, but on terms which would not result in her attending court as an expert witness. The EAT had concluded that the Tribunal’s decision to order reinstatement was perverse, and remitted it. She now appealed
Held: The House rejected the EAT’s view that the ET had been perverse. The EAT had substituted its own factual interpretation for that of the ET and stated that the reasons which the EAT gave for implying that the ET might be partial did not withstand scrutiny. However, the ET had erred in law; it interpreted the ET’s judgment as an order to employ M on altered contractual terms. As reinstatement had to be unconditional, the ET had misapplied the law. The appeal was therefore refused so far as it sought to restore the ET’s order of reinstatement, but allowed the appeal to the extent of remitting the case to the original ET.

Judges:

Lady Dorran

Citations:

[2013] ScotCS CSIH – 4, [2013] IRLR 297, 2013 SC 268, [2013] CSIH 4, [2013] IRLR 297, 2013] CSIH 4

Links:

Bailii

Statutes:

Employment Rights Act 1996 114 115 116

Jurisdiction:

Scotland

Cited by:

At Inner House – McBride v Scottish Police Authority (Scotland) SC 15-Jun-2016
The court was asked whether the employment tribunal had been correct, after finding that the appellant had been unfairly dismissed, to order her reinstatement. She had worked as a fingerprint officer, but her reinstatement was to be on terms that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.470718

Jakpa v London Underground Ltd and Others: EAT 29 Jan 2013

EAT Practice and Procedure : Striking-Out or Dismissal – Exceptional case in which, after some 16 days of hearings, the Employment Tribunal was entitled to strike out claim by reason of the Claimant’s conduct of the proceedings rendering a fair trial impossible.

Judges:

Peter Clark J

Citations:

[2013] UKEAT 0571 – 12 – 2901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 November 2022; Ref: scu.470640

Barot v London Borough of Brent: EAT 17 Jan 2013

EAT REDUNDANCY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant worked as an Accountant in the Respondent’s Children and Families Directorate. The Employment Tribunal was correct to find that a redundancy situation was created when the Respondent reorganised the Directorate and introduced requirement for skills the Claimant was not considered to have. The Respondent had a diminished requirement for the kind of work the Claimant had carried out hitherto.
The Claimant maintained that her dismissal for redundancy was unfair. The facts relied upon by the Respondent to support its case on both redundancy and unfair dismissal were the same. The Respondent sought to argue as an alternative that the dismissal could be justified as being for SOSR under S98(1) (b) of the Employment Rights Act 1996 [‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’]; it sought to rely upon exactly those facts to support its case of SOSR. The Employment Tribunal’s decision to allow the SOSR defence to be raised was justified in the exercise of its discretion; the Claimant had the opportunity to deal with the point and had done so effectively; the Claimant had not been prejudiced in any way by the raising of the SOSR defence. Even if there had been a procedural irregularity in the absence of substantial unfairness her appeal not succeed; Stanley Cole (Wainfleet) v Sheridan [2003] ICR 1449, applied. Hannan v TNT-IPEC [1986] IRLR 165; Murphy v Epsom College [1983] IRLR 395 and Land Rover v Short [2011] UKEAT/0496/10 considered.

Judges:

Serota QC J

Citations:

[2013] UKEAT 0539 – 11 – 1701

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(1)

Jurisdiction:

England and Wales

Employment

Updated: 13 November 2022; Ref: scu.470639

A v B: EAT 23 Jan 2013

EAT Disability Discrimination : Findings by the Employment Tribunal that the dismissal of the Claimant was neither unfair, wrongful nor discriminatory were upheld. There had been no failure on the part of the Respondent to make reasonable adjustments. The Claimant, who was disabled, had failed to show that for a reason connected with his disability he had been treated less favourably than a colleague who was not disabled.

Judges:

Serota QC J

Citations:

[2013] UKEAT 0383 – 11 – 2301

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470637

Transport for London v O’Cathail: CA 29 Jan 2013

The court considered an appeal against a refusal of a late application for an adjournment by an employment tribunal.
Held: The appeal was allowed. There had been no error of law in the decisions of the ET to refuse adjournments either in its approach in principle to the exercise of the ET’s discretion or in the lawfulness of the outcome.
Mummery LJ (with whom Etherton and McFarlane LJJ agreed) said: ‘The crucial point of difference from Terluk’s case is that decisions of the employment tribunal can only be appealed on questions of law, whereas under the CPR the appeal is normally by way of review and the decision of a lower court can be set aside, if it is wrong, or if it is unjust by reason of a serious procedural or other irregularity in the proceedings. In relation to case management the employment tribunal has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The tribunal’s decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the Employment Appeal Tribunal should continue to adopt rather than the approach in Terluk as summarised in the headnote [2012] ICR 561 quoted above. It is to be hoped that this ruling will put an end to the ‘apparent confusion in authority’ on the point pointed out by Wilkie J in Riley v Crown Prosecution Service (unreported) 13th June 2012, at paras 55-56.
. . ‘Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily pre-determined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.
. . What is fair in the interests of the parties is, in the first instance, a matter for assessment by the ET. The EAT ought only to intervene if the ET has erred in principle or produced a perverse outcome in the sense that no reasonable tribunal could have concluded that it was fair in all the circumstances to refuse the adjournment.’

Judges:

Mummery, Etherton, McFarlane LJJ

Citations:

[2013] EWCA Civ 21, [2013] IRLR 310, [2013] ICR 614, [2013] WLR(D) 31, [2013] CP Rep 2

Links:

Bailii, WLRD

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 10

Jurisdiction:

England and Wales

Citing:

Appeal from – O’Cathail v Transport for London EAT 13-Jan-2012
EAT PRACTICE AND PROCEDURE
Case management
Postponement or stay (refusal of adjournment)
The Claimant submitted medical evidence to the effect that he was unfit to attend the hearing of his claim . .
See Also – O’Cathail v Transport for London CA 20-Jul-2012
The court was asked about the power of the Employment Appeal Tribunal (EAT) to extend time for appealing from the Employment Tribunal (ET). . .

Cited by:

Applied – Brighouse Group Holdings Ltd v Bourne EAT 11-Sep-2013
EAT Practice and Procedure : Postponement or Stay – The Appellant’s solicitors made an application for an adjournment of a hearing on the grounds that the Appellant’s managing director was unable to attend by . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.470623

Fox and Others v Bassetlaw District Council: EAT 16 Jan 2013

EAT Practice and Procedure : Striking-Out or Dismissal – Equal pay claim withdrawn, to be replaced by a fresh equal pay claim. Whether first claim ought to be dismissed under rule 25(4) and second claim an abuse of process. ET answered both questions in the affirmative. Appeal dismissed. Verdin and Johnson v Gore Wood followed and applied.

Judges:

Peter Clark J

Citations:

[2013] UKEAT 0274 – 12 – 1601

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Verdin v Harrods Ltd EAT 21-Dec-2005
EAT Contract of Employment – Damages for breach of contract – The Tribunal Chairman erred in law in concluding that Mrs Verdin’s breach of contract claim should be dismissed.
Rule 25 of the Employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.470190

Piper v Maidstone and Tunbridge Wells NHS Trust: EAT 18 Dec 2012

EAT Unfair Dismissal : Dismissal or Ambiguous Resignation – Whether sanction short of dismissal on internal appeal expunged earlier dismissal. Employment Tribunal held: yes. On analysis, the contractual provision required the Claimant’s agreement to the lower sanction. Absent that agreement his dismissal stood – Roberts v West Coast Trains considered. Claimant’s appeal allowed.

Judges:

Peter Clarke J

Citations:

[2012] UKEAT 0359 – 12 – 1812

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Considered – Roberts v West Coast Trains Ltd CA 16-Jun-2004
The employee had been dismissed. He began a claim for unfair dismissal, but also appealed within his employers’ procedure, accepting a demotion. The tribunal then found that he had not been dismissed.
Held: There had been no dismissal. Had he . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 November 2022; Ref: scu.470187

De Souza v Manpower UK Ltd: EAT 12 Dec 2012

EAT Jurisdictional Points : Extension of Time: Just and Equitable – Race discrimination claim lodged one day out of time. Employment Tribunal decided not just and equitable to extend time. No error of law in ET approach. Cross-appeal moot. Both appeal and cross-appeal dismissed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0234 – 12 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – De Souza v Manpower UK Ltd CA 17-Dec-2013
Renewed application for an extension of time and for permission to appeal. The claimants application to the tribunal had been out of time and was dismissed accordingly. The EAT had directed that any further appeal be lodged within a specified time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470186

Espie v Balfour Beatty Engineering Services Ltd: EAT 30 Nov 2012

EAT Disability Discrimination : Direct Disability Discrimination – Where, in selecting for redundancy, the employer had regard to a period of absence during which there were two reasons for absence, one of which was by reason of a disability and one of which was for another medical reason, the Employment Tribunal did not err in law in concluding that the detriment suffered, by counting the period of absence for a medical reason which did not amount to a disability, did not amount to discrimination on account of a disability.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0321 – 12 – 3011

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470185

Kennaugh v Jones (T/A Cheshire Tree Surgeons): CA 16 Jan 2013

The claimant renewed his application for leave to appeal against rejection of his claim for unfair dismissal. The EAT had acknowledged the difficult nature of the employment but rejected the assertion that he had been constructively dismissed through a failure to pay remuneration due.
Held: The case did not merit an appeal, being founded essentially in a claim as to the facts which had been rejected by the tribunal whose task it was to make such findings.

Judges:

Rimer LJ

Citations:

[2013] EWCA Civ 1

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 November 2022; Ref: scu.469797

McAdie v Royal Bank of Scotland: CA 31 Jul 2007

The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank of the branch which would upset her child care arrangements. She was then off work for stress, and it was suggested that she would be unable to return. The EAT said that the contribution by the company to that stress had to be disregarded.
Held: The appeal failed.
The court approved and was unwilling to add to the EAT judgment which had analysed the authorities in these terms: ‘In Betty Morison P appeared to say that the fact that the employer had been responsible for the incapacity which was the reason for a dismissal should as a matter of principle be ignored in deciding whether it was reasonable to dismiss for that reason. But Bell J in Edwards and Judge Reid QC in Frewin expressed the view that, if that was what Morison P meant, it over-stated the position. We agree. It seems to us that there must be cases where the fact that the employer is in one sense or another responsible for an employee’s incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity. It may, for example, be necessary in such a case to ‘go the extra mile’ in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable. (We need not consider the further example, suggested by Bell J in Edwards, of a case where the employer, or someone for whose acts he is responsible, has maliciously injured the claimant, since there is no suggestion that those are the facts here. But we should say that we find some difficulty with the implication that in such a case there could never be a fair dismissal.) However, we accept, as did Bell J and Judge Reid, that much of what Morison P said in Betty was important and plainly correct. Thus it must be right that the fact that an employer has caused the incapacity in question, however culpably, cannot preclude him for ever from effecting a fair dismissal. If it were otherwise, employers would in such cases be obliged to retain on their books indefinitely employees who were incapable of any useful work. Employees who have been injured as a result of a breach of duty by their employers are entitled to compensation in the ordinary courts, which in an appropriate case will include compensation for lost earnings and lost earning capacity: tribunals must resist the temptation of being led by sympathy for the employee into including granting by way of compensation for unfair dismissal what is in truth an award of compensation for injury. We also agree with Morison P in sounding a note of caution about how often it will be necessary or appropriate for a tribunal to undertake an enquiry into the employer’s responsibility for the original illness or accident, at least where that is genuinely in issue: its concern will be with the reasonableness of the employer’s conduct on the basis of what he reasonably knew or believed at the time of dismissal, and for that purpose a definitive decision on culpability or causation may be unnecessary.’

Judges:

Buxton LJ, Rix LJ, Wall LJ

Citations:

[2007] EWCA Civ 806, [2007] IRLR 895, [2008] ICR 108

Links:

Bailii

Statutes:

Employment Rights Act 1996 98(1) 98(2)(a)

Jurisdiction:

England and Wales

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 – London Fire and Civil Defence Authority v Betty EAT 1994
Tribunals should not be concerned to ascertain whether the illness was caused or contributed to by the employer. The question in issue is whether, in the light of the employee’s medical condition and the inquiries and procedures the employer made . .
Cited – Edwards v The Governors of Hanson School EAT 11-Jan-2001
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Cited – Frewin v Consignia Plc EAT 9-Jun-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .

Cited by:

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

Employment

Updated: 12 November 2022; Ref: scu.258475

Alderson and others v Secretary of State for Trade and Industry: CA 8 Dec 2003

The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only to employees of commercial enterprises. This did not properly implement the directive, and accordingly the claimant had been deprived of his private right to claim. There remained the right to claim directly from the respondent.

Judges:

Lady Justice Arden Lord Philips Of Worth Matravers, Mr Lord Justice Dyson

Citations:

[2003] EWCA Civ 1767, Times 12-Dec-2003, Gazette 22-Jan-2004, [2004] ICR 512, [2004] 1 All ER 1148

Links:

Bailii

Statutes:

Council Directive 77/187/EEC (OJ 1977 L61/26)

Jurisdiction:

England and Wales

Citing:

Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Cited – Woodcock and others v Committee for the Time Being of the Friends School, Wigton CA 1987
A school, which had been operated by Quakers as a registered charity, had been sold to a company. The issue was whether or not this was a transfer covered by TUPE. The Industrial Tribunal, the Employment Appeal Tribunal held that it was not, on the . .
Cited – Redmond Stichting v Bartol and others (Judgment) ECJ 19-May-1992
Europa Article 1(1) of Council Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or . .
Cited – Hofner and Elser v Macrotron (Judgment) ECJ 23-Apr-1991
Europa A public employment agency engaged in the business of employment procurement may be classified as an undertaking for the purpose of applying the Community competition rules since, in the context of . .
Cited – Birch v Nuneaton and Bedworth Borough Council EAT 1995
‘The decision in the Commission’s case was on the basis of a concession made by the United Kingdom that non-profit-making organisations are excluded by the Regulations. That concession is not binding on the parties, or on the industrial tribunal or . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 12 November 2022; Ref: scu.188640

Emerging Markets Partnership (Europe) Ltd v Bachnak: CA 19 Dec 2003

The claimant asserted unfair dismissal. The company denied that he was an employee. The company now appealed against the decision of the EAT to grant the claimant’s appeal. The claimant had been an employee, but the arrangement had been varied so that it would allow him as a Slovak to live in the UK. In effect he worked through a one man company.
Held: The employer’s appeal failed. The decision of the original tribunal was poorly reasoned and could not stand. The combined effect of the documents must be ascertained by construing their provisions in the context of all the surrounding circumstances. In this case, ‘the absence of an express reference to the form or level of monetary payments to Mr Bachnak in the Terms and Conditions of Fixed Term Employment is not in itself fatal to the existence of a contract of service between EMPEL and Mr Bachnak: the evidence of the parties about the circumstances surrounding the transaction may identify the consideration for the work to be done by Mr Bachnak, either outside the express Terms and Conditions or possibly in some other form than payments of money made direct to Mr Bachnak personally.’

Judges:

Lord Justice May, Lord Justice Mummery Lord Justice Pill

Citations:

[2003] EWCA Civ 1876

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Bachnak v Emerging Markets Partnership (Europe) Ltd EAT 29-Jan-2002
Acceptance that case to go forward to full appeal. It was arguable that: ‘in the way set out its Extended Reasons [the tribunal] misdirected itself in law, in not holding that the terms and conditions of fixed term employment were, on their true . .
Appeal From – Bachnak v Emerging Markets Partnership (Europe) Ltd EAT 25-Mar-2003
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Cited – Express and Echo Publications Ltd v Tanton EAT 30-Jan-1998
When considering whether an unfair dismissal claimant was an employee, the tribunal should first establish as a fact the terms of the agreement and then consider whether any of the terms were inherently inconsistent with the existence of a contract . .
Cited – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .

Cited by:

See Also – Bachnak v Emerging Markets Partnership (Europe) Ltd EAT 27-Jan-2006
EAT The claimant had worked as an adviser for the respondent identifying investment opportunities. He said he had been unfairly dismissed after disclosing that the company had overpaid for an investment. He now . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2022; Ref: scu.188897

Campos and Others v The Farmright Group Ltd and Others: EAT 20 Nov 2012

EAT Practice and Procedure : Application or Claim
The Employment Judge erred in law in refusing to add a number of additional Claimants to an existing ET1 when at the same time he gave permission to the existing Claimant’s to add a new Respondent. To require fresh claim forms would make the additional Claimants out of time.

Judges:

Burtles J

Citations:

[2012] UKEAT 0488 – 12 – 2011)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.468958

McLauchlan v Chubb Electronic Security Systems Ltd: EAT 5 Dec 2012

EAT Disability Discrimination : Direct Disability Discrimination
VICTIMISATION DISCRIMINATION – Other forms of victimisation
The Employment Tribunal was entitled to find the Claimant had a mental health impairment but it did not have such adverse effect on his day to day activities as to make him disabled at the time of the complaints, although he was later accepted to be within the Act. His claims of victimisation failed on the permissible findings of causation.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0235 – 12 – 0512

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.468966

Charles v Kuehne and Nagel Ltd: EAT 17 Oct 2012

EAT Practice and Procedure : Amendment
ET1 alleged unfair dismissal (unfair selection for redundancy), and direct discrimination (because of disability) arising out of the employer including two periods of absence caused by the disability when scoring sickness absence in the selection process. The Claimant later applied to add claims of direct and indirect discrimination, discrimination arising from disability and harassment, focussed principally on aspects of his treatment in the two three years prior to dismissal, which the Employment Tribunal was entitled to think had no true casual link to the redundancy selection. It rejected the amendment (except where clearly linked to the time of selection), relying on Selkent v Moore, and the absence of any explanation for the lateness. A sustained argument that European legislative material and case-law showed such an emphasis on rooting out discrimination in any shape or form that the ET should have allowed the amendment was not accepted. This was said to be an error of law, as was an arguable rejection by the ET of paying regard to the policy of the law in exercising its discretion.
Held: properly read, the ET judgment could not be interpreted to mean that the ET had not had in mind the underlying policy imperatives. The exercise of discretion was not flawed. In any event, if it had been for that reason, the Employment Appeal Tribunal would have reached the same conclusion.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0363 – 12 – 1710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.468950

Zulhayir v JJ Food Services Ltd: EAT 24 Oct 2012

EAT Practice and Procedure : Perversity – The presence of a clause in a contract of employment requiring the employee to notify a change of address does not exempt the employer, where it is apparent that an important letter to the employee has been returned undelivered, from taking reasonable steps to use an alternative means of communication, if such alternative means is readily available.

Judges:

Bean J

Citations:

[2012] UKEAT 0275 – 12 – 2410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Zulhayir v JJ Food Service Ltd EAT 26-Jul-2011
EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Whether applicable
JURISDICTIONAL POINTS – Claim in time and effective date of termination
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2022; Ref: scu.468953

Stuart v London City Airport: EAT 9 Nov 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – The Claimant’s claim of unfair dismissal was dismissed because the Tribunal found that his employers’ decision, that he had acted dishonestly and in breach of trust, was based on reasonable grounds, after a reasonable investigation. The Claimant’s appeal was allowed to proceed to a full hearing on one issue, namely whether the Tribunal’s decision that the employers’ investigation into the allegation of gross misconduct was a reasonable investigation, was a decision that was reasonably open to them, on the evidence and findings made.
In the particular circumstances of this case, and where the Claimant had asked for further investigations to be carried out which would support his account that he was at no time acting dishonestly, his employers’ failure to do so was held, on appeal, to be objectively unreasonable and the Tribunal’s conclusion to the contrary was unsustainable. The EAT unanimously agreed that this was one of those rare cases where they should interfere with the ET’s decision on this issue.

Judges:

Cox DBE J

Citations:

[2012] UKEAT 0273 – 12 – 0911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.468960

Arriva London Ltd v Eleftheriou: EAT 20 Nov 2012

EAT Unfair Dismissal : Polkey Deduction – Reinstatement/re-engagement – The Employment Tribunal found that an employee bus driver, dismissed procedurally unfairly for capability reasons (the effects of an accident), would have been 60% likely to have been fairly dismissed given time and proper procedures. The employee having fully recovered as at the date of hearing, it ordered reinstatement but reduced the monetary compensation payable between dismissal and reinstatement by 60%. The parties agreed it was wrong to make any deduction, so subject to the argument that the discretion to order reinstatement was wrongly exercised for failure to take account of the ‘Polkey’ determination, a cross-appeal succeeded. Held ‘Polkey’ related to compensation, not to the statutorily prior inquiry into whether reinstatement should be ordered, and the employer failed to show the discretion was exercised on any other wrong basis (having gained an alternative job did not disqualify an ET from ordering reinstatement), or was wholly unreasonable. Appeal dismissed: cross-appeal allowed.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0272 – 12 – 2011)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.468955

Fish v Glen Golf Club: EAT 23 Oct 2012

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – The Employment Tribunal was entitled to conclude that the reason it found for dismissal (redundancy) was the principal reason, even though some evidence pointed to other reasons (capability, conduct) and that the employer might have acted to disguise those reasons by alleging redundancy. Nor, on the facts, had the ET erred by not dealing with a contention said to have been advanced to it, since there was no clear evidence to that effect.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0057 – 11 – 2310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.468951

Warrior Square Recoveries Ltd v Flynn: EAT 3 Oct 2012

EAT Victimisation Discrimination : Whistleblowing – Contract of employment – Sick pay and holiday pay
An Employment Judge declined to strike out a claim that there had been detriment caused by public interest disclosure, argued to be out of time, without identifying the act or acts complained of, and hence not being clear as to the dates of them (or the latest date upon which they could have occurred) and appearing to think that if a detriment continued then the claim was within time. This was in error. Her decision not to strike out a claim for holiday pay, in respect of which no claim had been made for several months whilst the Claimant was off work sick, was however upheld.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0154 – 12 – 0310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.468952

Adecco Uk Ltd v Aldwinkle: EAT 8 Nov 2012

EAT Practice and Procedure : Costs – The Claimant deliberately took no part in the proceedings once his solicitor came off the records. He failed to co-operate with the Respondent, ignored an ET order and did not appear at the hearing. The ET was wrong to refuse the Respondent its costs. Mirikwe v Wilson and Co Solicitors UKEAT/0025/11/RN applied.

Judges:

Birtles Judge

Citations:

[2012] UKEAT 0208 – 12 – 0811

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Mirikwe v Wilson and Co Solicitors and Others EAT 11-May-2011
EAT UNFAIR DISMISSAL
Costs. Award made without taking account of paying party’s means because (1) she did not attend the costs hearing (although in the court building) and (2) her conduct of the proceedings . .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 12 November 2022; Ref: scu.468954

Bijlani v Stewart QC and Others: EAT 20 Dec 2012

EAT Race Discrimination : Direct
Detriment
The Employment Tribunal did not err in holding that the actions complained of in the Complaints the subject of the appeal were not taken on grounds of race. They did not misdirect themselves in law on this issue and their judgment and reasons did not include expressly or by implication a finding that a decision of which complaint was made was taken in part on such grounds. Nor, reading the reasons as a whole, did the Employment Tribunal leave open this possibility. Insofar as the Employment Tribunal held that intention or ‘targeting’ was relevant to the question of whether the Complainant suffered a detriment they erred.

Judges:

Slade J

Citations:

[2012] UKEAT 0228 – 11 – 2012)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.468964

Birdi v Dartford Visionplus Ltd and Another: EAT 16 Nov 2012

EAT Practice and Procedure : Postponement or Stay – Application of guidance re adjournment in Teinaz and Andreou. Tribunal’s refusal of an adjournment to enable further medical evidence to be obtained was unreasonable.

Judges:

Sullivan LJ

Citations:

[2012] UKEAT 0289 – 12 – 1611

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Andreou v Lord Chancellor’s Department CA 22-Jul-2002
The Claimant had requested a postponement of the tribunal hearing on the basis of a medical certificate which stated that she was unfit to attend work. It therefore adjourned the proceedings for one week with directions that a medical report be . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2022; Ref: scu.468957

Simpson v London Borough of Hackney and Others: EAT 29 Oct 2012

EAT Contract of Employment : Damages for Breach of Contract
UNLAWFUL DEDUCTION FROM WAGES
In 2005 the Claimant classroom assistant sought a re-grading through job evaluation. Nothing happened. She continued to do the same job. In 2008 the job was evaluated and she was re-graded. By then, the terms of the First Respondent’s job evaluation scheme, now incorporated into her contract, provided for back pay to the date of the request. The Employment Judge’s decision that she was not so entitled was set aside and the new term applied. The Employment Judge did not err in dismissing the damages claim based on a contractual right to job evaluation since in 2005 the term derived from that part of a collective agreement which was not apt for contractual enforcement. NUM v NCB and Marley applied.

Judges:

McMullen QC

Citations:

[2012] UKEAT 0104 – 12 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.467153

SG Petch Ltd v English-Stewart: EAT 31 Oct 2012

EAT Maternity Rights and Parental Leave
Sex discrimination
Unfair dismissal
The Tribunal erred in concluding there was a discriminatory dismissal on the grounds that the Claimant had taken maternity leave, contrary to section 3A of the SDA, section 99 of the 1996 Act and paragraph 20 of MAPLE, when in the light of the Tribunal’s own findings it either did decide or was bound to have decided that there was a dismissal for redundancy, so that paragraph 20(2) not paragraph 20(1) of MAPLE applied, and the Tribunal failed to ask or answer the correct questions under that sub-paragraph. The dismissal for redundancy was plainly in connection with the taking of maternity leave, in circumstances in which it was accepted and found that the redundancy/lack of necessity for employing four rather than three people in the relevant department became apparent while the Claimant was absent on maternity leave, but the Tribunal did not consider (i) whether paragraph 20(2)(b) applied or (ii) whether the Claimant was bound/likely to have been dismissed in any event (Polkey). Remitted to the ET for that purpose, to take place at the same time as the (already adjourned) remedies hearing, if the latter should arise in the light of the Tribunal’s further conclusion on liability/loss.

Judges:

Burton J

Citations:

[2012] UKEAT 0213 – 12 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.467152

Royal Mail Group Ltd v Lall: EAT 15 Oct 2012

EAT Unfair Dismissal : Reasonableness of Dismissal
PRACTICE AND PROCEDURE – Costs
The Claimant was dismissed from a post office following discovery of his wife’s fraud, of which he was unaware. There was no basis for interfering with a Tribunal’s finding of unfair dismissal in a misconduct case where the management did not consider relevant factors in the internal hearings, especially integrity. Fuller v Brent applied. The appeal was misconceived since there was no challenge to the finding that relevant matters were not considered. Costs awarded.

Judges:

McMullen QC

Citations:

[2012] UKEAT 0228 – 12 – 1510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.467151

Dominguez v Prefect of the Central Region (Social Policy): ECJ 24 Jan 2012

ECJ Social policy – Directive 2003/88/EC – Article 7 – Right to paid annual leave – Precondition for entitlement imposed by national rules – Absence of the worker – Length of the leave entitlement based on the nature of the absence – National rules incompatible with Directive 2003/88 – Role of the national court

Judges:

V Skouris, P

Citations:

[2012] EUECJ C-282/10, Case C-282/19, [2012] ICR D23

Links:

Bailii

Statutes:

Directive 2003/88/EC 7

Jurisdiction:

European

Citing:

Opinion – Dominguez v Prefect of the Central Region (Social Policy) ECJ 8-Sep-2011
ECJ Article 31, paragraph 2, of the Charter – Fundamental social rights – General principles of law – horizontal effect of directives – Article 7 of Directive 2003/88/EC – Working conditions – Working time . .

Cited by:

Cited – British Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2022; Ref: scu.466928

Trade Union of the Police in the Slovak Republic and Others v Slovakia: ECHR 25 Sep 2012

Article 11-1
Freedom of association
Strong ministerial criticism of calls by police union for Government’s resignation: no violation
Facts – The first applicant was a trade union representing police officers. The second, third and fourth applicants were respectively its former president and vice-president and one of its members. In October 2005 the union organised a public meeting in one of the main squares in Bratislava to protest against proposed legislative changes to the police’s social-security regime. During the meeting the participants spontaneously called for the Government to step down and a banner on display read ‘If the State doesn’t pay a policeman, the mafia will do so with pleasure.’ Subsequently the Minister of the Interior criticised the meeting and its organisers and removed the second applicant from the post of director in the police force. The third applicant was also removed from his position at the Minister’s behest. The Minister stated in the press and on television that he would dismiss anyone who acted contrary to the ethical code of the police again, that the union representatives had lost credibility and that he was not obliged to negotiate with them. The applicants lodged a complaint with the Constitutional Court alleging that the Minister’s statements would deter members of the police force from availing themselves of their freedoms of expression, assembly and association for fear of sanctions. In 2007 the Constitutional Court dismissed their complaint after finding that the Minister’s statements were part of the dialogue between both parties and did not amount to a breach of the freedoms at issue.
Law – Article 11 read in the light of Article 10: The Court accepted that the applicants had been intimidated by the Minister’s statements, which could thus have had a chilling effect and discouraged them from pursuing activities within the trade union, including organising or taking part in similar meetings. There had consequently been interference with the exercise of their right to freedom of association. What the Court had to establish was whether such interference had been ‘necessary in a democratic society’. Under domestic law, when expressing their views in public, police officers were required to act in an impartial and reserved manner in order to maintain public trust. Given their primordial role in ensuring internal order and security and in fighting crime, duties and responsibilities inherent in the position and role of police officers justified particular arrangements as regards the exercise of their trade-union rights. The Court observed that the Minister’s impugned statements had been given in reaction to, and were exclusively directed against, the calls for the Government’s resignation and a slogan implying that there was a risk that the police might get involved with the mafia. The Minister had considered their conduct to be in breach of the obligation of police officers to express their views in an impartial and reserved manner and his statements had represented an immediate reaction to ideas and views expressed at the meeting. Given his responsibility for the appropriate functioning of the entire Ministry, including the police, the Minister had been entitled to express his opinion on the situation. Moreover, it did not appear that the applicants’ right to be heard or to continue pursuing trade-union activities had been impaired in any way. In sum, the Court accepted that the interference at issue corresponded to a ‘pressing social need’ and that the reasons for the interference were ‘relevant and sufficient’.
Conclusion: no violation (five votes to two).

Citations:

11828/08 – HEJUD, [2012] ECHR 1747, 11828/08 – CLIN, [2012] ECHR 2036

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights, European Convention on Human Rights

Jurisdiction:

Human Rights

Employment, Police, Human Rights

Updated: 12 November 2022; Ref: scu.467006

Lynch and Others v East Dunbartonshire Council: EAT 9 Mar 2010

EAT Lis Pendens. Equal pay claims. Claimants presented claims which were met with a response that included the contention that they had not complied with the statutory grievance procedures. While determination of that issue pending, claimants presented further claims (after having issued fresh grievance letters) in which, essentially, the same equal pay claims were made. Respondents argued that the doctrine of lis pendens applied and the Tribunal was, accordingly, bound to dismiss the second set of claims, which it did. On appeal, Employment Appeal Tribunal held that whilst an Employment Tribunal could be expected to have regard to the principles underlying the doctrine of lis pendens when considering how to exercise its discretion in response to a strike out application in the context of its ‘abuse’ jurisdiction under paragraph 18(7)(b)-(f) of the 2004 Rules, the doctrine had no separate application in the Employment Tribunal. Tribunal’s judgment accordingly set aside.

Judges:

Smith Lady

Citations:

[2010] UKEAT 0039 – 09 – 0903

Links:

Bailii

Statutes:

Employment Tribunal Rules 2004 18(7)

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.466981

X v Mid Sussex Citizens Advice Bureau and Another: EAT 30 Oct 2009

EAT DISABILITY DISCRIMINATION: Exclusions/jurisdictions
The Employment Judge did not err in finding that the Appellant, a volunteer worker with the CAB, was not entitled by the DDA to claim disability discrimination. The Government is not in breach of the Framework Directive in this regard, and s4(2)(d) and s68 of the DDA do not fall to be read down or rewritten (by reference to Marleasing or Mangold) so as to extend protection to voluntary workers without a contract. The Judge was also entitled to find that the CAB arrangements were not within s4(1)(a) of the DDA.

Judges:

Burton J

Citations:

[2009] UKEAT 0220 – 08 – 3010, [2010] ICR 423, [2010] 1 CMLR 27, [2010] IRLR 101

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 4(1)(a), Directive 2000/78/EEC

Jurisdiction:

England and Wales

Cited by:

Appeal from – X v Mid Sussex Citizens Advice Bureau and Others CA 26-Jan-2011
The court was asked whether the claimant, a volunteer worker with the respondent had the protection of the 1995 Act in that work as a worker, despite nnot being employed. . .
At EAT – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.377545

Mukoro Independent Workers Union of Great Britain (Practice and Procedure): EAT 24 Mar 2021

Practice and Procedure
1. The Claimant, who had been assisted by her daughter at earlier hearings, required emergency dental treatment on the day and at the time fixed for the hearing of the Respondents’ application for an order striking out her claims on the basis that a fair hearing was no longer possible.
2. The Employment Tribunal erred in failing to take account of the information provided to it that the Claimant had developed an excruciatingly painful abscess and had had to seek immediate medical attention and that the Claimant and her daughter would be attending an emergency dental appointment starting at 10.30 am.
3. The adjournment should have been granted, since to do otherwise would be a denial of justice.
4. Since the adjournment should have been granted, the order striking out the claims was set aside. It was noted that, as part of its reasons for making that order, the Employment Tribunal stated, in effect, that it was in the Claimant’s best interests to strike out the claims. However, that is not a ground for striking out a claim and it is not relevant to the question whether a fair hearing is possible.

Citations:

[2021] UKEAT 0128 – 19 – 2403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.661702

Ali v Office of The Immigration Services Commissioner (Race Discrimination): EAT 6 Nov 2020

It is unlawful for a person who is not a qualified person to provide immigration advice or services. One route to being a qualified person is to be registered by the Office of the Immigration Services Commissioner (‘OISC’). The OISC also has powers to investigate and prosecute people suspected of providing such services unlawfully.
Two companies controlled by the Appellant had been registered with the OISC to provide immigration advice and services. But in 2014 both companies’ applications for renewed registrations were refused. There is a statutory right of appeal to the First-Tier Tribunal, which the Appellant in fact exercised, though unsuccessfully. The Employment Tribunal rightly concluded that the FTT route of challenge amounted to an ‘appeal or proceedings in the nature of appeal’ within the meaning of section 120(7) Equality Act 2010; and that its availability therefore meant that the Tribunal had no jurisdiction to entertain discrimination complaints about this conduct. Michalak v General Medical Council [2018] ICR 49 considered.
Some two and a half years later the OISC commenced an investigation into whether the Appellant was unlawfully providing immigration advice or services in circumstances where he was not a qualified person (he contended that the arrangements under which he was then operating meant that he was). This included inviting him to investigation interviews and obtaining a search warrant. The Tribunal held that it could not entertain proposed complaints that this was discriminatory conduct, as this conduct was not within the scope of section 53 of the 2010 Act at all. The Tribunal was right to so conclude.

Citations:

[2020] UKEAT 0271 – 19 – 0611, [2021] ICR 452

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.661658

Tratkowski v Commission (Annulment – Civil Service – Order): ECFI 16 Oct 2020

Action for annulment – Civil service – Officials – Internal Competition COM/2/AD 12/18 (AD 12) – Submission of the application using the form provided for that purpose and referred to in Article 2 to Annex III of the Staff Regulations – Request to be admitted to the competition, lodged at the same time and on a separate sheet of paper, to the Appointing Authority – Eligibility conditions – Decision of the selection board to reject the applicant’s application – Rejection by the selection board of the candidate’s request for re-examination due to it being out of time – Decision of the Appointing Authority refusing to grant the applicant’s request to set aside one of the conditions provided for in the notice of competition in order to admit him to the competition – Challenge of the decision of the Appointing Authority and not that of the selection board – Legal interest in bringing proceedings – Inadmissibility

Citations:

T-14/20, [2020] EUECJ T-14/20_CO, ECLI:EU:T:2020:502

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 12 November 2022; Ref: scu.660626

Educational World Limited (T/A Winston House Preparatory School) v Wharton: EAT 6 Nov 2012

EAT Contract of Employment : Implied Term or Variation or Construction of Term
The Employment Judge was wrong to construe a teacher’s contract of employment by importing practice from public sector teachers’ contracts when the relevant contractual terms were clear that the School term ended on 8 July 2011 and not (as the Claimant contended) 31 August 2011. Neither could the contractual provisions about holiday pay assist in finding the end of term date.

Judges:

Birtles J

Citations:

[2012] UKEAT 0223 – 12 – 0611

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.467154

London Underground Ltd v Strouthos: CA 17 Dec 2003

Application for permission to appeal from EAT – granted

Judges:

Scott Baker LJ

Citations:

[2003] EWCA Civ 1959

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – London Underground Ltd v Strouthos EAT 4-Jun-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .

Cited by:

See Also – Strouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2022; Ref: scu.467191

Big City Leisure Ltd v McCarthy: EAT 31 Oct 2012

EAT PRACTICE AND PROCEDURE – Amendment
The Employment Tribunal held that the Appellant company, the transferee following a service provision change, needed permission to amend its ET3 in order to challenge whether Claimant was an employee (as opposed to being self-employed) prior to the transfer, and refused permission – Held that no such permission was required – Issue of Claimant’s employment status remitted to the Tribunal for determination.

Judges:

Underhill P J

Citations:

[2012] UKEAT 0459 – 12 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.467149

Okoro and Another v Taylor Woodrow Construction Ltd and Others: EAT 26 May 2011

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
Contract workers banned – they claimed for discriminatory reasons – from working again for the principal. Claim brought some 6 months after this. Question was whether the ban was an act extending over a period, so as to confer jurisdiction, or whether Employment Tribunal was entitled to hold (as it did) that it was not. ET decision upheld. The decision was one of fact, and here there was neither a misdirection in law nor perversity.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0318 – 10 – 2605

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 6-Dec-2010
EAT PRACTICE AND PROCEDURE
Postponement or stay
Appellate jurisdiction/reasons/Burns-Barke
Where an application is made to an Employment Tribunal for a postponement in writing and at the . .

Cited by:

At EAT (2) – Okoro and Another v Taylor Woodrow Construction Ltd and Others CA 4-Dec-2012
Appeals against orders whereby racial discrimination claims by the appellants were held to be out of time and that it was not just and equitable to extend time. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2022; Ref: scu.466980

Bryant v Saga Care Homes Ltd: EAT 11 Dec 2012

EAT UNFAIR DISMISSAL
The Claimant, a staff nurse of long experience, was dismissed by the Respondent after she had delegated the administration of a drug to a care assistant in the Respondent’s care home; the care assistant gave the drug to the wrong patient. In breach of the Nursing and Midwifery Council’s guidelines, the Claimant neither recorded nor reported the drug error (which caused no harm and was unlikely to do so). The Employment Tribunal found that her dismissal for her admitted breaches of the guidelines and her failure to appreciate the seriousness of what had occurred fell within the band of reasonable responses.
Held: on appeal (i) that the ET had not failed to consider either the Claimant’s case that the Respondent had dismissed her for economic or other reasons and used the incident as a pretext or the other elements of her case (ii) that it was not the task of the ET or the EAT to decide whether the dismissal was fair (iii) that the ET had correctly applied the law and (iv) that perversity was not demonstrated. Fuller and Yeboah applied.

Judges:

Jeffrey Burke QC

Citations:

[2012] UKEAT 0453 – 11 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 12 November 2022; Ref: scu.466979

Federacion de Servicios Publicos de la UGT v Ayuntamiento de la Linea de la Concepcion; Maria del Rosario Vecino Uribe: ECJ 29 Jul 2010

ECJ Transfers of undertakings – Directive 2001/23/EC – Safeguarding of employees’ rights – Employee representatives – Autonomy of the entity transferred

Judges:

Lenaerts, P

Citations:

[2010] EUECJ C-151/09, C-151/09

Links:

Bailii

Statutes:

Directive 2001/23/EC

Citing:

Opinion – Federacion de Servicios Publicos de la UGT v Ayuntamiento de la Linea de la Concepcion; Maria del Rosario Vecino Uribe ECJ 6-May-2010
ECJ Opinion – Transfers of undertakings – Safeguarding of employees’ rights – Employee representatives – Autonomy of the entity transferred. . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 10 November 2022; Ref: scu.467719

Imam-Sadeque v Bluebay Asset Management (Services) Ltd: QBD 10 Dec 2012

Popplewell J said: ‘In general terms, it can be said that the duty of fidelity requires an employee not to engage in competitive activity. Nevertheless, it is legitimate for him to undertake competitive activity as soon as he ceases the employment (in the absence of effective post-termination covenants), and not all preparation for such future competitive activity will be a breach of his duty of loyalty. Where the boundary is to be drawn, in any particular case, between legitimate preparatory activity and illegitimate competitive activity, is often a difficult question.’

Judges:

Popplewell J

Citations:

[2012] EWHC 3511 (QB), [2013] IRLR 344

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .

Cited by:

Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 November 2022; Ref: scu.466945

Parviainen v Finnair Oyj: ECJ 1 Jul 2010

ECJ Social policy – Directive 92/85/EEC – Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding – Articles 5(2) and 11(1) – Worker temporarily transferred to another job during her pregnancy – Compulsory transfer because of a risk to her safety or health and that of her child – Pay less than the average pay received before the transfer – Previous pay made up of a basic salary and various supplementary allowances – Calculation of the salary to which a pregnant worker is entitled during the period of her temporary transfer.

Judges:

Cunha Rodrigues P

Citations:

[2010] EUECJ C-471/08, C-471/08, [2011] CEC 494, [2011] ICR 99, [2010] ECR I-6533, [2011] 1 CMLR 8

Links:

Bailii

Statutes:

Directive 92/85/EEC

Jurisdiction:

European

Citing:

Opinion – Parviainen (Social Policy) ECJ 17-Dec-2009
ECJ (Opinion) Social policy Protection of the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding’ Directive 92/85 / EEC Articles 5 and 11 (1) Maintenance of . .

Cited by:

Cited – British Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .
Cited – Williams And Others v British Airways Plc ECJ 16-Jun-2011
ECJ (Opinion) Working conditions – Organisation of working time – Article 7 of Directive 2003/88/EC – Right to paid annual leave – Extent of the obligations provided for by that directive in respect of the nature . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 November 2022; Ref: scu.466927

Okoro and Another v Taylor Woodrow Construction Ltd and Others: CA 4 Dec 2012

Appeals against orders whereby racial discrimination claims by the appellants were held to be out of time and that it was not just and equitable to extend time.

Judges:

Pill, Hughes, Rimer LJJ

Citations:

[2012] WLR(D) 368, [2013] Eq LR 147, [2013] ICR 580, [2012] EWCA Civ 1590

Links:

WLRD, Bailii

Jurisdiction:

England and Wales

Citing:

At EAT (1) – Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 6-Dec-2010
EAT PRACTICE AND PROCEDURE
Postponement or stay
Appellate jurisdiction/reasons/Burns-Barke
Where an application is made to an Employment Tribunal for a postponement in writing and at the . .
At EAT (2) – Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 26-May-2011
EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
Contract workers banned – they claimed for discriminatory reasons – from working again for the principal. Claim brought some 6 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 November 2022; Ref: scu.466533