Category: Employment

Masgio v Bundesknappschaft: ECJ 7 Mar 1991

ECJ Articles 48 to 51 of the Treaty and the legislation adopted in implementation thereof, which includes Article 3 of Regulation No 1408/71, prevent a worker from losing, as a consequence of the exercise of his right to freedom of movement, the advantages in the field of social security guaranteed to him by the laws of a single Member State, since such a consequence could deter workers from exercising that right and would therefore constitute an obstacle to that freedom. Those provisions must therefore be interpreted as meaning that a migrant worker who is receiving an old-age pension under the legislation of one Member State and accident insurance benefits paid by an insurance institution of another Member State may not be put in a worse position, for the purpose of calculating the portion of the benefit to be suspended pursuant to the legislation of the first State, than a worker who has not exercised his right of free movement and is receiving both benefits under the legislation of a single Member State. No justification for such inequality of treatment can be afforded by any practical difficulties which social security institutions may encounter when calculating entitlement to benefits.

Citations:

[1991] ECR I-1119, C-10/90, [1991] EUECJ C-10/90

Links:

Bailii

European, Benefits, Employment

Updated: 01 June 2022; Ref: scu.160415

Giuseppe d’Urso, Adriana Ventadori and others v Ercole Marelli Elettromeccanica Generale SpA: ECJ 25 Jul 1991

Europa Article 3(1) of 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 parts of businesses is to be interpreted as meaning that all contracts of employment or employment relationships existing on the date of the transfer of an undertaking between the transferor and the workers employed in the undertaking transferred are automatically transferred to the transferee by the mere fact of the transfer. That transfer is binding on both the transferor and the transferee and on the employees’ representatives, who may not agree different arrangements in an agreement with the transferor or the transferee and on the employees themselves, save that the employees may freely decide not to continue the employment relationship with the new employer after the transfer.
Article 1(1) of Council Directive 77/187 does not apply to transfers of undertakings made as part of a creditors’ arrangement procedure of the kind provided for in the Italian legislation on compulsory administrative liquidation to which the Law of 3 April 1979 on special administration for large undertakings in critical difficulties refers. However, that provision of that directive does apply when, in accordance with a body of legislation such as that governing special administration for large undertakings in critical difficulties, it has been decided that the undertaking is to continue trading for as long as that decision remains in force.

Citations:

C-362/89, [1991] EUECJ C-362/89, [1992] ECR I-4105

Links:

Bailii

Statutes:

Directive 77/187 3(1)

Cited by:

Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 01 June 2022; Ref: scu.160387

Foster and others v British Gas plc: ECJ 12 Jul 1990

The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. The statutory objective set was the development and maintenance of an efficient, co-ordinated and economical supply of gas for Great Britain. In conjunction with the Secretary of State it was to settle a research programme into matters which affected the supply of gas. Additionally, the Secretary of State had power to require BGC to report to him and comply with any directions he might give. The court asked whether British Gas was part of the State before it was privatised?
Held:

  • [A Directive] may be relied upon in a claim for damages against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals
  • ECJ has jurisdiction in proceedings for a preliminary ruling to determine the categories of person against whom the provisions of a directive may be relied on. It is for the national courts . . to decide whether a party to proceedings before them falls within one of the categories so defined.
  • must provide a public service pursuant to a measure adopted by the State
  • must be a public service under the control of the State
  • must have for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals All criteria were satisfied in this case. All criteria were important.
    The HL had held the British Gas Corporation (before privatisation) met the criteria of the ECJ for defining an emanation of state and that British Gas was bound by vertical direct effect.
    It had been held in a series of cases that provisions of a European directive could be relied on against organisations and bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals. Reference was made to a number of its decisions to illustrate this point.
    Held: ‘It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.’
    ECJ 1. Unconditional and sufficiently precise provisions of a directive may be relied upon against organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable in relations between individuals. They may in any event be relied upon against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.
    2. Article 5(1 ) of Directive 76/207 on equal treatment for men and women as regards access to employment and working conditions is a provision which is unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts.

    • Judges:

    Sir Gordon Slynn, P

    Citations:

    [1991] 2 WLR 258, [1990] 2 CMLR 833, 2 CMLR 833 ECJ, C-188/89, [1990] ECR I-3313, [1990] EUECJ C-188/89, [1990] IRLR 353, [1990] 3 All ER 897, [1991] 1 QB 405, [1991] ICR 84

    Links:

    Bailii

    Statutes:

    Directive 1976 EEC/76/207 5(1)

    Cited by:

    Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
    Parish Councils are Hybrid Public Authorities
    The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
    Cited – Cameron and others v Network Rail Infrastructure Ltd QBD 18-May-2006
    The claimant sought damages from the defendant after the death of her father in the Potters Bar rail crash. The defendant applied for summary judgment saying that English law did not recognise a claim by a family member of a deceased save through . .
    Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
    Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
    At ECJ – Foster v British Gas plc HL 1991
    The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised . .
    Lists of cited by and citing cases may be incomplete.

    European, Utilities, Employment, Company

    Updated: 01 June 2022; Ref: scu.160286

    ADI (UK) Limited v Firm Security Group Limited: CA 22 Jun 2001

    ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
    Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a location and in circumstances, and the EAT found an economic entity. The state of the European and domestic authorities is unsatisfactory. The hearing had taken place between the two ECM judgments. Emphasis is placed on the need to take all relevant factors into account. The present case is to be regarded as an example of a labour intensive case, such as was Suzen, but the EAT had not considered the reason for not taking on the previous employees.
    May LJ said: ‘In my view confusion and uncertainty have arisen because the need for a legal transfer or merger, still present in the Directive, has been eliminated by purposive judicial interpretation, yet the perceived need to find a transfer of some kind remains.’

    Judges:

    Lord Justice Simon Brown, Lord Justice May, Lord Justice Dyson

    Citations:

    [2001] EWCA Civ 971, [2001] 3 CMLR 8, [2001] Emp LR 969, [2001] IRLR 542

    Links:

    Bailii

    Statutes:

    Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Council Directive 77/187/EEC

    Jurisdiction:

    England and Wales

    Citing:

    Considered – ECM (Vehicle Delivery) Services Ltd v B Cox and others CA 22-Jul-1999
    Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract . .
    Considered – Allen and Others v Amalgamated Construction Co Ltd ECJ 10-Dec-1999
    The European rules protecting employees rights on the transfer of undertakings operated also when employees when employees were transferred between two separate companies which were subsidiaries of another. They were legally distinct employers, even . .
    Considered – Liskojarvi and Another v Oy Liikenne Ab ECJ 25-Jan-2001
    There is an inherent conflict between the need to promote freedom of competition, and the need to restrict competition to promote continuity of employment. The transfer of undertakings regulations must apply to the re-allocation of public service . .
    Considered – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
    There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
    Cited – Suzen v Zehnacker Gebaudereinigung Krankenhausservice (Judgment) ECJ 11-Mar-1997
    A transfer of a contract to provide business services, without the transfer of significant assets was not a transfer of an undertaking within the Directive. Nevertheless the transfer of tangible assets was only one factor among several. . .
    Appeal from – ADI (UK) Ltd v Willer and others EAT 18-Apr-2000
    EAT The employees appealed against a finding that there had been no transfer of an undertaking when their service business had been sold and they had been dismissed.
    Held: The appeal failed. No assets, . .

    Cited by:

    Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
    A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
    Held: The regulations did not require that in order to be governed by the regulations, a business . .
    Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
    EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
    Lists of cited by and citing cases may be incomplete.

    Employment, European

    Updated: 01 June 2022; Ref: scu.160088

    Donald D’Souza v London Borough of Lambeth: CA 25 May 2001

    Persons seeking to be restored to former employment after dismissal are not compensatable victims either seeking employment or in employment – discrimination against them is not a matter for which the Race Relations Act 1976 section 4 made provision

    Judges:

    Lord Justice Robert Walker, Lord Justice Schiemann, Mr Justice Lloyd

    Citations:

    [2001] EWCA Civ 794

    Links:

    Bailii

    Statutes:

    Race Relations Act 1976 4

    Jurisdiction:

    England and Wales

    Employment, Discrimination

    Updated: 01 June 2022; Ref: scu.160106

    Ashraf v Francis W Birkett and Sons Ltd: EAT 20 Jul 2001

    The employee had been selected for redundancy. He claimed both race and disability discrimination. He appealed a rejection of race discrimination claim. He said that the Meek case required the decision to deal with any significant of conflict of evidence, and this the tribunal had not done. The respondent said this need not be fatal to the decision. Though no reference had been made to the replies to the questionnaire, or to differences and changes in the replies given, the tribunal had been quite ready to criticise the respondents, and the evidence had explored the same area in full. The omission made no substantial difference.

    Judges:

    Miss Recorder Slade QC

    Citations:

    [2001] UKEAT 244 – 00 – 0803

    Links:

    Bailii

    Statutes:

    Race Relations Act 1976 65(2)(b)

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Chief Constable of the Thames Valley Police v Kellaway 2000
    . .
    Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
    Employment Tribunals to Provide Sufficient Reasons
    Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
    Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
    See Also – Ashraf v Birkett EAT 14-Jan-2000
    . .
    See Also – Ashraf v Francis W Birkett and Sons Ltd EAT 23-May-2000
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 01 June 2022; Ref: scu.160146

    Jasbeer Rooproy v M Rollins-Elliott, Manor House Hospitals Ltd: EAT 7 Aug 2001

    The Applicant had worked for the respondents. The respondents were closing down the nursing home, and all staff were being made redundant and were to be given open references. The applicant’s claim for race discrimination had been heard but no decision given. The first respondent gave a reference but referred to the outstanding proceedings. The reference was not received until after her employment had come to an end. She had in fact been treated less favourably, and that arose directly as a consequence of the previous proceedings for race discrimination. The motive of the respondent was not to be taken into account. There is a two part test. Was the applicant treated less favourably, and if so, was this a consequence of her complaint of race discrimination.

    Judges:

    Mr Commissioner Howell QC

    Citations:

    [2001] UKEAT 1486 – 99 – 0607

    Links:

    Bailii

    Statutes:

    Race Relations Act 1976 2(1)(a)

    Jurisdiction:

    England and Wales

    Cited by:

    See Also – Elliot v Rooproy and others EAT 15-Nov-2002
    . .
    See Also – M Rollins-Elliott v J Rooproy Manor House Hospitals Ltd In Voluntary Liquidation EAT 21-Apr-2005
    EAT Race Discrimination – Other losses. . .
    See Also – M Rollins-Elliott v J Rooproy Manor House Hospitals Ltd In Voluntary Liquidation EAT 4-Jul-2005
    EAT Race Discrimination – Other losses. . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment

    Updated: 01 June 2022; Ref: scu.160114

    De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others: PC 30 Jun 1998

    (Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to speak out.
    Held: The demonstration did contravene the restriction on publishing his views. Analogies with private employment were not useful. They were both servants of the State, and the Minister a politician necessarily and properly exposed to public opinion. The general proposition that civil servants hold a unique status in a democratic society does not necessarily justify a substantial invasion of their basic rights and freedoms. A blanket prohibition against all public discussion of all public issues by all public servants would deny fundamental democratic rights to far too many people.
    The interdiction, and the intended disciplinary proceedings contravened the appellant’s constitutional rights. In determining whether a limitation (by an act, rule or decision) is proportionate arbitrary or excessive the court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

    Judges:

    Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Clyde

    Citations:

    [1998] UKPC 30, [1999] 1 AC 69, Appeal No 42 of 1997, [1998] 3 WLR 675, 4 BHRC 563

    Links:

    Bailii

    Citing:

    Cited – Minister of Home Affairs v Fisher PC 1979
    Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
    Cited – Attorney-General v Momodou Jobe PC 26-Mar-1984
    (Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
    Cited – Vogt v Germany ECHR 1-Nov-1995
    The German courts construed a teacher’s duty of loyalty as absolute and owed equally by every civil servant, regardless of his or her function and rank under national law. Every civil servant, whatever his or her own opinion on the matter, must . .
    Cited – Regina v Oakes 28-Feb-1986
    Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — . .

    Cited by:

    Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
    A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
    Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
    The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
    Held: . .
    Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
    Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
    Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
    Cited – George Worme Grenada Today Limited v The Commissioner of Police PC 29-Jan-2004
    PC (Grenada) The defendant was editor of a newspaper which carried a story severely defamatory of the prime minister. He was convicted of criminal libel, and appealed.
    Held: The appeal was dismissed. The . .
    Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
    The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
    Cited – Attorney General v Scotcher HL 19-May-2005
    Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
    Cited – Forbes v Secretary of State for the Home Department QBD 26-Jul-2005
    The defendant argued that the 2003 Act was in breach of his article 8 rights. He had been registered as a sex offender, but the offence for which he had been convicted involved no proof of intention.
    Held: The claimant having brought the . .
    Cited – Bradley v The Jockey Club CA 12-Jul-2005
    The Jockey had been disqualified from riding for five years for breaches of the club’s rules. He said the punishment was disproportionate in effectively preventing him working for a living.
    Held: The appeal failed, and the judge’s analysis was . .
    Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
    A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
    Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
    The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
    Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
    The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
    Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
    Appellate Roles – Human Rights – Families Split
    The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
    Cited – Suryananda, Regina (on the Application of) v The Welsh Ministers Admn 16-Jul-2007
    The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat . .
    Cited – Observer Publications Limited v Campbell ‘Mickey’ Matthew The Commissioner of Police and The Attorney General PC 19-Mar-2001
    PC (Antigua and Barbuda) The claimant complained of the delay by the respondents in processing their request for a licence to run a radio station. It appealed refusal of constitutional redress and thta its right . .
    Cited – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
    The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
    Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
    The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
    Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
    The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
    Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
    Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
    Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
    Lists of cited by and citing cases may be incomplete.

    Commonwealth, Constitutional, Employment

    Updated: 01 June 2022; Ref: scu.159311

    Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2): HL 17 Feb 2000

    Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from any discriminatory reason. It was not a breach of the Directive.
    Lord Nicholls said: ‘The burden placed on the government in this type of case is not as heavy as previously thought. Governments must be able to govern. They adopt general policies, and implement measures to carry out their policies. Governments must be able to take into account a wide range of social, economic and political factors. The Court of Justice has recognised these practical considerations. If their aim is legitimate, governments have a discretion when choosing the method to achieve their aim. National courts, acting with hindsight, are not to impose an impracticable burden on governments which are proceeding in good faith. Generalised assumptions, lacking any factual foundation, are not good enough. But governments are to be afforded a broad measure of discretion. The onus is on the Member State to show (1) that the allegedly discriminatory rule reflects a legitimate aim of its social policy, (2) that this aim is unrelated to any discrimination based on sex, and (3) that the Member State could reasonably consider that the means chosen were suitable for attaining that aim.’

    Judges:

    Lord Slynn of Hadley Lord Goff of Chievley Lord Jauncey of Tullichettle Lord Nicholls of Birkenhead Lord Steyn

    Citations:

    Gazette 02-Mar-2000, [2000] UKHL 12, [2000] 1 All ER 857, [2000] 1 WLR 435, [2000] ICR 244

    Links:

    House of Lords, Bailii

    Statutes:

    Equal Treatment Directive (76/207/EC), Sex Discrimination Act 1975, Unfair Dismissal (Variation of Qualifying Period) Order 1985 (1985 No 752)

    Jurisdiction:

    England and Wales

    Citing:

    Returned from – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
    Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
    See Also – Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another QBD 1995
    (Divisional and Court of appeal) The claimants sought judicial review of a condition requiring an employee to have had two years of continuous employment before becoming eligible to make a claim for unfair dismissal. This condition was neutrally . .
    Reference to ECJ – Regina v Secretary of State for Employment, ex parte Seymour Smith (1) HL 13-Mar-1997
    The House referred to the European Court the question of whether the extension of the minimum period of employment before employment rights were acquired, was discriminatory. . .

    Cited by:

    Cited – Regina (on the application of Smith) v Barking and Dagenham London Borough Council and another Admn 19-Nov-2002
    The applicants sought to argue that the attempt to evict him from the caravan site he occupied infringed his article 8 and 14 rights. Though the Isaacs case had decided there was good reason to deny security, he argued that was no longer applicable, . .
    Returned to – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
    Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
    Applied – Secretary of State for Trade and Industry v Rutherford and Another; Same v Bentley EAT 2-Oct-2003
    The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
    Held: The tribunal . .
    Cited – Rutherford and Another v Secretary of State for Trade and Industry CA 3-Sep-2004
    The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
    Cited – Hockenjos v Secretary of State for Social Security (No 2) CA 21-Dec-2004
    The claimant shared child care with his former partner, but claimed that the system which gave the job-seeker’s child care supplement to one party only was discriminatory.
    Held: In such cases the supplement usually went to the mother, and this . .
    Cited – Home Office v Bailey and others CA 22-Mar-2005
    Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
    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 – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
    Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
    Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
    Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
    The appellant, a part time recorder challenged his exclusion from pension arrangements.
    Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
    Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
    Commissioner’s Approach not in Breach
    In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment, European

    Updated: 31 May 2022; Ref: scu.159046

    Taylor v Secretary of State for Scotland: HL 11 May 2000

    An employment contract provided that employees would not be discriminated against on the grounds (inter alia) of age. The normal retiring age was 55, but the employer allowed employees to continue beyond that age subject to regular review. The employer decided to retire all employees above 55, and the employee claimed this was discriminating on the grounds of age in breach of the contract.
    Held: The prohibition against discrimination with which the House concerned in this case is contractual, not statutory. The House ‘the principle that a contract must be taken as a whole. As a general rule each provision must be read in the light of the other provisions of the contract of which it forms part. The object which is sought to be achieved is to ascertain the meaning of the contract which the parties have made to describe their legal relationship. Where the contract is in writing the task is to discover the meaning of the words which they have used in the written contract. This is to be achieved by reading these words not in isolation but as they would be understood in the context which has been provided for them by the whole contract.’ There had been no singling out, and the equal opportunities policy had not displaced the retirement provisions. No dicrimination was found.

    Judges:

    Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Hope of Craighead, Lord Millett

    Citations:

    Times 12-May-2000, [2000] UKHL 28

    Links:

    House of Lords, Bailii

    Jurisdiction:

    England and Wales

    Employment, Contract, Discrimination, Scotland

    Updated: 31 May 2022; Ref: scu.159062

    Tracy and others v Crosville Wales Ltd: HL 16 Oct 1997

    Damages for unfair dismissal of those not re-engaged after a strike where the employees had been equally blameworthy, were not to be reduced for any contributory fault of the employee in engaging in the strike. The employers had advertised the jobs, but not approached the applicants to offer them new employment, and were liable for unfair dismissal. Any contributory fault lay in the action of striking, but the cause of action arose on the failure to offer re-engagement.

    Judges:

    Lord Goff of Chieveley Lord Mackay of Clashfern Lord Lloyd of Berwick Lord Nolan Lord Clyde

    Citations:

    Gazette 29-Oct-1997, Times 20-Oct-1997, [1997] UKHL 42; [1997] 4 All ER 449; [1997] 3 WLR 800

    Links:

    House of Lords, Bailii

    Statutes:

    Trade Union and Labour Relations (Consolidation) Act 1992 238, Employment Protection (Consolidation) Act 1978 62

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Nelson v British Broadcasting Corporation (No 2 ) CA 1980
    Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Damages

    Updated: 31 May 2022; Ref: scu.158917

    Strathclyde Regional Council and others v Wallace and others (Scotland): HL 22 Jan 1998

    80% of the men who had been employed since 1 April 1997 had got protection under TUPE whereas only 66.66% of the women had. It was argued that this difference in percentages was sufficient to justify a claim of indirect discrimination.
    Held: There was no sex discrimination where there were genuine reasons for a pay differential other than sex. There was no further burden on the employer to justify the difference.
    Lord Browne-Wilkinson: ‘The Equal Pay Act has to be construed as far as possible to work harmoniously both with the Sex Discrimination Act 1975 and Article 119. All three sources of law are part of a code dealing with unlawful sex discrimination . . It follows that the words ‘not the difference of sex’ where they appear in s.1(3) of the Equal Pay Act 1970 must be construed so as to accord with the Sex Discrimination Act 1975 and article 119 of the Treaty, i.e. an employer will not be able to demonstrate that a factor is ‘not the difference of sex’ if the factor relied upon is sexually discriminatory whether directly or indirectly. Further, a sexually discriminatory practice will not be fatal to a subsection (3) defence if the employer can ‘justify’ it.’

    Judges:

    Lord Browne-Wilkinson

    Citations:

    Times 24-Jan-1998, Gazette 18-Feb-1998, [1998] 1 WLR 259, [1998] ICR 205, [1998] UKHL 4, [1998] 1 All ER 394, [1998] IRLR 146

    Links:

    House of Lords, Bailii

    Statutes:

    Equal Pay Act 1970

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
    Discrimination – Shifting Burden of Proof
    (Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

    Cited by:

    Cited – Glasgow City Council and Others v Marshall and Others HL 8-Feb-2000
    Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
    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 – South Tyneside Metropolitan Borough Council v Anderson and others EAT 26-Mar-2007
    The council appealed a finding that there was no genuine material factor justifying a difference in pay, and in particular the availability of bonus schemes. . .
    Cited – Grundy v British Airways Plc CA 23-Oct-2007
    The claimant, a cabin crew member of the defendant’s staff sought damages for sex discrimination.
    Held: Sedley LJ said that the pool chosen should be that which suitably tests the particular discrimination complained of. . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment

    Updated: 31 May 2022; Ref: scu.158935

    Regina v Secretary of State for Employment, ex parte Seymour Smith (1): HL 13 Mar 1997

    The House referred to the European Court the question of whether the extension of the minimum period of employment before employment rights were acquired, was discriminatory.

    Citations:

    Times 14-Mar-1997, [1997] UKHL 11, [1997] 2 All ER 273, [1997] 1 WLR 473, [1997] ICR 371, [1997] IRLR 315

    Links:

    House of Lords, Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another CA 3-Aug-1995
    The rule which extended to two years, the time before the vesting of employment rights was discriminatory, since it affected more women than men. . .

    Cited by:

    Reference from – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
    Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
    Reference to ECJ – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
    Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment

    Updated: 31 May 2022; Ref: scu.158886

    Scanlon v Young Engineers Ltd: EAT 9 Jan 2019

    PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
    The Claimant was retained by the Respondent in 2015 to work as a web developer and then to work on an associated membership database. The number of days’ work was to be as agreed. The daily rate was pounds 150. The relationship ended early in 2017. The Claimant claimed that since 2016 he had put in 158.5 days’ work for which he had not been paid, and was owed wages of pounds 23,775. The Respondent’s case was that only 23.5 days’ work had been agreed in that period, and that the Claimant was only owed pounds 3525. The Employment Tribunal (‘ET’) accepted the Respondent’s case and awarded pounds 3525. The Claimant appealed.
    The overarching ground of appeal was that the Tribunal’s Decision was not compliant with Meek v City of Birmingham District Council [1987] IRLR 250, in particular because there was no clear finding as to what was agreed about the work for which the Claimant would or would not be paid, and how, in the relevant period. He also argued that the ET wrongly rejected his case as to the number of days that he had actually worked in the relevant period. The Respondent’s case was that, reading the Decision as a whole, the ET had clearly found that, as from a meeting on 27 April 2016, it was agreed that the Claimant had to complete the project, but had no right to any further payment; and the ET was entitled to take the view that it did about how many days he had actually worked after that, though that was strictly irrelevant.
    Held: Whilst recognising the difficulties it faced, in light of the nature of the evidence available to it, and its overall task, the ET had not made sufficiently reasoned or clear findings, as to (a) the agreement or understanding, following a meeting on 27 April 2016, about what, if any, further payment the Claimant would receive or how it would be calculated thereafter; (b) the significance of the fact that, on the Respondent’s own case, accepted by the ET, payment for some further days’ work, at the daily rate, had, in any event, been agreed after that meeting; and (c) its reasons for rejecting the Claimant’s case as to the number of days he had actually worked, given the evidence that he put before the ET

    Citations:

    [2019] UKEAT 0127 – 18 – 0901

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 31 May 2022; Ref: scu.635154

    Wilko Retail Ltd v Gaskell and Another: EAT 22 Nov 2018

    Unfair Dismissal – reasonableness of the decision to dismiss – section 98(4) Employment Rights Act 1996
    The Claimants had been dismissed for failing to comply with the Respondent’s fire safety policy. Rather than each signing-in and out when they came on, or left, site, Mr Gaskell would sign for both. The Respondent took the view that this amounted to gross misconduct, as a serious breach of health and safety procedures, and determined that both should be dismissed. The Claimants complained that they had been unfairly dismissed. The ET majority (the Lay Members) upheld the claims, albeit finding that any basic or compensatory award would be subject to a 33% reduction due to the Claimants’ conduct. The Employment Judge (in the minority) held that the dismissals were fair. The Respondent appealed.
    Held: Allowing the appeal.
    The ET majority’s finding that there had been no serious breach of health and safety procedures was based upon a mistaken view of the evidence before the Respondent when taking the decision to dismiss. The majority recorded that there had been nothing to suggest that Mr Gaskell’s signing for Mr Willis was inaccurate, but that failed to take account of the uncertainty arising once the Claimants had ceased to text each other to check the position (something that had emerged during the investigation). More generally, however, the ET majority had substituted its view of what was important for the purpose of the fire sheet policy and, thus, as to what amounted to a serious breach. It had also erred in its record of the facts applicable to a comparator case relied on by the Claimants, concluding that the Claimants’ conduct was less serious because the other employee had signed for a colleague when she was not in the building. That was not the allegation; the other case in question had involved a similar breach of the policy but only on one occasion, whereas Mr Gaskell had been signing in and out for Mr Willis practically daily for several months. The ET majority had also failed to demonstrate that it had asked the correct question when considering the issue of inconsistent treatment, failing to ask whether the Respondent’s view of the comparisons made by the Claimants fell within the band of reasonable responses. Generally, the ET majority had repeatedly focused not on the Respondent’s assessment of the seriousness of the Claimants’ conduct (or that of other employees) but on its own view, thus falling into the substitution trap; it had thereby applied the wrong approach to the question of fairness for section 98(4) purposes and its decision could not stand.

    Citations:

    [2018] UKEAT 0191 – 18 – 2211

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 31 May 2022; Ref: scu.635144

    Colback v Ferguson and others: CA 25 Jul 2001

    The applicant had had her case for unfair dismissal rejected, and also by the EAT. She now sought leave t0 appeal. The organisation, a local MIND had decided it was insolvent and had dismissed its staff. She asserted that no decision to wind up the organisation had been made. She alleged apparent bias, after the chairman of the tribunal had shared a taxi with one of the respondents after one day of the hearing.
    Held: She had to establish that she would have a fair chance of success on appeal. Though it had been wrong to describe the risk of bias as transitory or illusory, there was no real prospect of success. Leave refused.

    Judges:

    Lord Justice Sedley

    Citations:

    [2001] EWCA Civ 1207

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 31 May 2022; Ref: scu.147637

    National Union of Rail, Maritime and Transport Workers v Midland Mainline Ltd: CA 25 Jul 2001

    In an industrial dispute, the union balloted their members on strike action. A majority voted in favour, but 21 out of the 91 members who would be affected had not been balloted. Although strike notices were sent only to those who had voted, it was clear that other members would be expected to be affected. The vote was ineffective, and the strike action properly restrained by injunction. Various reasons existed for the non-balloting of different members, including admissible and non-admissible reasons. On balance the judge’s discretion had been exercised properly. Immunity was to be given only subject to strict conditions. In this case the problem had been made worse by the refusal of both union and employer to disclose to each other membership and employee lists, and perhaps in future, ACAS could be involved to provide a confidential exchange of membership lists.

    Judges:

    Schiemann LJ, Kay LJ, Stuart-Smith Sir

    Citations:

    Times 07-Aug-2001, Gazette 04-Oct-2001, [2001] EWCA Civ 1206

    Links:

    Bailii

    Statutes:

    Employment Relations Act 1992 232B

    Jurisdiction:

    England and Wales

    Employment

    Updated: 31 May 2022; Ref: scu.147639

    South West Yorkshire Partnership NHS Foundation Trust v Jackson and Others: EAT 22 Nov 2018

    MATERNITY RIGHTS AND PARENTAL LEAVE
    The Claimant was on maternity leave while a redundancy exercise was being carried out. An important e-mail requiring her to fill in a redeployment document and return it to HR as soon as possible was sent to her work e-mail address which she was not accessing. As a result, she did not get notice of the e-mail or fill in the form for several days. Although this did not cause any substantial harm it caused her legitimate concern and the Employment Appeal Tribunal (‘EAT’) upheld the Employment Tribunal’s (‘ET’) finding that it amounted to ‘unfavourable treatment’. The ET also found that the unfavourable treatment was ‘because’ she was exercising her rights to maternity leave and thus amounted to discrimination under section 18(4) Equality Act 2010. The appeal in relation to this issue was allowed because the ET did not consider causation properly in the light of the decisions in Indigo design Build and Management Limited and Anor v Martinez (Sex discrimination: Direct) [2014] UKEAT/0020/14/0007 and Onu v Akwiwu and Another [2014] EWCA Civ 279. Although the unfavourable treatment would not have happened ‘but for’ the fact that the Claimant was on maternity leave, the ET had not considered whether this was the ‘reason why’ she had been treated unfavourably. There was no finding that the fact that she was on maternity leave had operated on the Respondent’s mind and there was no sufficient factual basis or analysis to support a finding that the Respondent had applied an inherently discriminatory criterion; in particular, the ET’s Judgment was not clear as to why the sender of the e-mail used only her work email address or why the Claimant did not have access to her work emails.

    Citations:

    [2018] UKEAT 0090 – 18 – 2211

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 31 May 2022; Ref: scu.634379

    Anglia Home Improvement Ltd v C Kelly: CA 16 Jun 2004

    The tribunal had found the claimant to have been unfairly dismissed, with the chairman dissenting.
    Held: It was most desirable that tribunals should do their very best to reach a unanimous verdict in unfair dismissal cases. Where unanimity could not be found the chairman should reserve the decision, and circulate his views to the other two lay members to invite them to agree or explain their disagreement. In this case the lay members had substituted their opinion as to the reasonableness of the dismissal. It was a gross error of law to substitute their opinion for that of the reaonable employer.

    Judges:

    Mummery, Arden LJJ, Cage J

    Citations:

    Times 30-Jun-2004

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Anglia Home Improvement Ltd v Kelly EAT 30-Dec-2003
    EAT Unfair Dismissal – Reasonableness of dismissal
    EAT Unfair Dismissal – Reasonableness of dismissal. . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.199256

    Eastbourne Borough Council v James Foster: CA 11 Jul 2001

    An employee’s job ceased, but he continued to be employed by the same employer on different tasks, but the new arrangement was void as ultra vires. The question arose as to whether his employment had been terminated at the time of the change in such a way as to affect his pension rights under the regulations. The facts were compatible only with a continuation of the relationship of employer and employee. The original contract had been repudiated, and the repudiation accepted. The employee remained entitled to notice, and he was, for the purposes of the Regulations, continued to be employed until that notice expired.

    Judges:

    Aldous LJ, May LJ, Rix LJ

    Citations:

    Times 17-Aug-2001, Gazette 31-Aug-2001, [2001] EWCA Civ 1091, [2002] ICR 234, [2001] BLGR 529, (2001) 3 LGLR 53, [2001] Emp LR 1079

    Links:

    Bailii

    Statutes:

    Local Government (Discretionary Payments) Regulations 1996 (1996 No 1680)

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Hinckley and Bosworth Borough Council v Shaw QBD 2000
    Two senior and long term employees of the Council proposed voluntary early redundancy. After discussions, their contracts were varied with enhanced pay so that they would also have enhanced pensions and redundancy payments. Such enhancing agreements . .

    Cited by:

    Cited – London Borough of Tower Hamlets v Wooster EAT 10-Sep-2009
    EAT AGE DISCRIMINATION
    UNFAIR DISMISSAL – Polkey deduction
    Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and . .
    See Also – Eastbourne Borough Council v Foster EAT 8-Jul-2003
    EAT Redundancy – Protective award . .
    See Also – Foster v Eastbourne Borough Council and Another CA 3-Feb-2004
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Local Government

    Updated: 31 May 2022; Ref: scu.147613

    Allen v Oliver Group Plc and Another: CA 24 May 2001

    The appellant appealed a finding against her by the ET and EAT on her claim of race discrimination. The tribunal found that the applicant had been treated less favourably, but had been unable to find any evidence that this had its origins in her race. However two paragraphs of the judgment were inconsistent. The judgement had failed to distinguish between adverse treatment generally, and adverse treatment which would not have affected others. The tribunal had a duty to make findings on the facts presented before it, and was therefore defective. Tribunals should recognise that there are two issues, the treatment issue, and the causation issue, and it is safer where there are a number of complaints, to deal with the two issues only by reference to the individual complaints. Nevertheless, any fault would in the judgement would have worked in her favour, and the decision was not set aside.
    courtcommentary.com In considering the issues of treatment and causation in a claim of racial discrimination it is safer for the Tribunal to deal with the two issues only by reference to the individual complaints and not globally

    Judges:

    The President, Lord Justice Waller And Lady Justice Hale

    Citations:

    [2001] EWCA Civ 806

    Links:

    Bailii, courtcommentary.com

    Statutes:

    Race Relations Act 1976

    Jurisdiction:

    England and Wales

    Citing:

    Cited – King v Great Britain China Centre CA 1991
    The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
    Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
    Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
    The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment

    Updated: 31 May 2022; Ref: scu.147564

    Shawkat v Nottingham City Hospital NHS Trust: CA 21 Jun 2001

    The claimant doctor had been dismissed. He said it was unfairly, and the Trust replied that he had been made redundant ‘for some other reason’ since he had nt acceted new conditions of work.
    Held: The employee’s appeal failed. The EAT had re-iterated the conclusion that there had been no diminution of the need for the appropriate kind of work. There was no rule that a re-organisation could not lead to a redundancy. It was a question of the facts in each circumstance.

    Judges:

    Walker LJ, Longmore LJ

    Citations:

    [2001] EWCA Civ 954

    Links:

    Bailii

    Statutes:

    Employment Rights Act 1996 139(1)

    Jurisdiction:

    England and Wales

    Citing:

    Appeal From – Shawkat v Nottingham City Hospital NHS Trust EAT 14-Jul-1999
    A doctor claimed that he had been dismissed unfairly for redundancy and his employers claimed that since he had not accepted new conditions he had been dismissed fairly for some other reason. The Tribunal held that he had been dismissed for . .
    Cited – Murray and Another v Foyle Meats Ltd (Northern Ireland) HL 8-Jul-1999
    The company decided to make redundancies. The applicants, all selected, had worked in more than one section of the plant. All employees worked under the same contract, but employees were chosen only from the one section. The complainants said that . .
    Cited – Safeway Stores Plc v Burrell EAT 24-Jan-1997
    The tribunal set out the test for whether a dismissal was for redundancy: ‘Free of authority, we understand the statutory framework . . involve a three-stage process: (1) was the employee dismissed: If so, (2) had the requirements of the employer’s . .
    Cited – Robinson v British Island Airways Ltd EAT 1978
    The claimant was a flight operations manager answerable to a general manager, operations and traffic. The employer re-organised abolishing both posts to one job of operations manager, with different tasks, new responsibilities and enhanced status . .
    Cited – Murphy v Epsom College CA 1984
    The College replaced a plumber who could do the work of a heating engineer with a heating engineer who could do plumbing work. The number of employees and the work remained the same.
    Held: The dismissal was by reason of redundancy because the . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.147586

    Regina v Chief Constable of Merseyside Police, ex parte Carol Ann Bennion: CA 4 May 2001

    The claimant sought a judicial review against a Chief Constable against whose force she had made complaints of sex discrimination and victimisation, not to remit disciplinary proceedings against her under regulation 14 of the 1985 Regulations to another Chief Constable. Her complaint was that, in making that decision, he had not acted judicially.
    Held: The fact that a Chief Constable had been named as a defendant in proceedings brought by a constable, did not disqualify him from exercising his statutory duties as chief constable to hear disciplinary proceedings against the same constable. The regulations imposed an unequivocal duty on him to hear the complaint, and his general and continuing duties for the maintenance of discipline put him in a different position to that of a judge hearing a case.

    Citations:

    Times 12-Jun-2001, Gazette 21-Jun-2001, [2001] EWCA Civ 638, [2001] IRLR 442

    Links:

    Bailii

    Statutes:

    Police (Discipline) Regulations 1985 (1985 No 518) 13.1

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Regina v Chief Constable of Merseyside, Ex Parte Bennion QBD 18-Jul-2000
    A senior officer had begun a claim against the police officer alleging sex discrimination. She complained that when disciplinary proceedings were commenced against her, the person making the decision would be the Chief Constable, and that his . .

    Cited by:

    Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
    The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
    Lists of cited by and citing cases may be incomplete.

    Human Rights, Employment, Police

    Updated: 31 May 2022; Ref: scu.147533

    Stevedoring and Haulage Services Limited v A M Fuller and others: CA 9 May 2001

    The claimants were stevedores whose contracts were intermittent. The employer denied that they were employees.
    Held: There was no contract while the claimants were not at work. There was no overarching or global contract, and it was not possible to transform a relationship which was not contractual into a contract of service by implying terms into the relationship. It was not possible to imply a contract of employment where the parties had entered into an agreement, the express terms of which were wholly inconsistent with there being such an implied contract.

    Judges:

    Lord Justice Schiemann, Lord Justice Robert Walker And Lord Justice Tuckey

    Citations:

    [2001] EWCA Civ 651, [2001] IRLR 627

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Esso Petroleum Company v Jarvis and others Brentvine Limited EAT 14-Nov-2001
    The claimants had come to the employer through an agency. The issue now was whether they were the employees of the respondent. The employer said there was no mutuality of obligation, and therefore no contract, and no possible dismissal.
    Held: . .
    Cited – Cornwall County Council v Prater CA 24-Feb-2006
    The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
    Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
    The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
    Held: The end-user . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.147536

    Interlink Express Parcels Ltd v Night Trunkers Ltd and Another: CA 14 Mar 2001

    Where the issue was whether a temporary worker was to be deemed to be an employee (in this case for licensing purposes) of the main contractor, the proper test was the degree of control exercised by the deemed employer. The purpose of the section was to ensure that responsibility for the operation of a vehicle was known. This was a context of tort, rather than of contract.

    Citations:

    Times 22-Mar-2001, Gazette 17-May-2001, [2001] EWCA Civ 360

    Links:

    Bailii

    Statutes:

    Goods Vehicles (Licensing of Operators) Act 1995

    Jurisdiction:

    England and Wales

    Road Traffic, Transport, Employment

    Updated: 31 May 2022; Ref: scu.147469

    Cerberus Software Ltd v John Anthony Rowley: CA 18 Jan 2001

    Where a contract of employment gave the employee a right to six months notice but provided that the employer might pay salary in lieu, and the employee was wrongfully dismissed instantly, but found work within weeks, he was entitled to his full six months pay in lieu of notice, but had to give credit for the sums he earned during that time in reduction of his damages. The choice given to the employer to pay salary in lieu of notice was inconsistent with an unconditional obligation to pay the full sum.
    courtcommentary.com Where (i) either party has right to terminate employment contract on six months’ notice and (ii) it is agreed employer ‘may make payment in lieu of notice to the employee’, then employer may elect whether or not to make payment in lieu of notice

    Judges:

    Lord Justice Ward Lord Justice Sedley and Lord Justice Jonathan Parker

    Citations:

    Times 20-Feb-2001, [2001] ICR 376, [2001] EWCA Civ 1210, [2001] EWCA Civ 78, [2001] EWCA Civ 497

    Links:

    Bailii, Bailii, Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Cerberus Software Ltd v Rowley EAT 29-Sep-1999
    Where an employment contract allows the employer to dismiss without notice by the payment of salary in lieu of notice, the employer was bound by that contract and could not rely upon the employee’s duty of mitigation of damages and dismiss without . .

    Cited by:

    Cited – Langley and Another v Burso EAT 3-Mar-2006
    The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
    Held: ‘We are put in the invidious position of being bound by . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Contract, Damages

    Updated: 31 May 2022; Ref: scu.147502

    Whiffen v Milham Ford Girls’ School and Oxfordshire County Council: CA 21 Mar 2001

    The local authority’s redundancy policy required the school first to choose for redundancy those on fixed term temporary contracts. The applicant’s contract had not been renewed, and she had been replaced by a teacher with lesser qualifications. The policy adversely affect more women than men and was indirect discrimination, and it was for the school to justify following it. It had to show that the policy met some need, but that question was never addressed. The school had to show the need in this situation to use the policy, not that the policy was widely followed.

    Judges:

    Schiemann, Latham LJJ, Sir Christopher Slade

    Citations:

    Times 03-Apr-2001, Gazette 07-Jun-2001, [2001] EWCA Civ 385

    Links:

    Bailii

    Statutes:

    Sex Discrimination Act 1975 1(1)(b) (i)

    Jurisdiction:

    England and Wales

    Citing:

    At EAT -1 – Whiffen v Milham Ford Girls School and Another EAT 12-Feb-1998
    . .
    Appeal from – Whiffen v Milham Ford Girls School and Another EAT 28-Oct-1999
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 31 May 2022; Ref: scu.147478

    Scott v London Borough of Hillingdon: CA 3 Apr 2001

    Judges:

    Henry LJ

    Citations:

    [2001] EWCA Civ 462

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Cited by:

    Leave – Scott v London Borough of Hillingdon CA 18-Dec-2001
    The claimant’s claim for race discrimination had been dismissed on appeal by the EAT. He now appealed to restore the judgement of the employment tribunal. He had begun an action against his employer, and then unsuccessfully applied for employment . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.147495

    Whitbread Plc (Trading As Whitbread Medway Inns) v Hall: CA 27 Feb 2001

    The employer appealed against a finding of unfair dismissal.
    Held: In deciding whether the applicant had been unfairly dismissed for misconduct, the tribunal was free to consider whether the procedure adopted by the employer was reasonable, even where the applicant had admitted the misconduct. The band of reasonable responses test should be applied equally to both limbs of the test of the employers approach, substantial and procedural.

    Judges:

    Mantell LJ, Hale LJ

    Citations:

    Times 15-Mar-2001, Gazette 20-Apr-2001, [2001] EWCA Civ 268, [2001] ICR 699, [2001] Emp LR 394, [2001] IRLR 275

    Links:

    Bailii

    Statutes:

    Employment Rights Act 1996 98(4)

    Jurisdiction:

    England and Wales

    Citing:

    See Also – Whitbread Plc (T/A Whitbread Medway Inns) v Hall EAT 18-Jan-1999
    . .
    Appeal from – Whitbread Plc (T/A Whitbread Medway Inns) v Hall EAT 19-Aug-1999
    . .

    Cited by:

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

    Employment

    Updated: 31 May 2022; Ref: scu.147455

    Dr Mohammed Saeed v Royal Wolverhampton Hospitals NHS Trust: CA 20 Dec 2000

    Where disciplinary proceedings were contemplated against an employee who might be subject to alternative contractual and professional complaints procedures, the employer must look to the contract to decide which procedure was to be followed. If the disciplinary procedure followed was a contractual one, then public law considerations of reasonableness would not apply to the proceedings. A doctor who, in the course of examining a patient’s finger, touched her breasts and tummy, could properly face a complaint under his contract as personal misconduct rather than as a professional conduct complaint. The employer has to decide which procedure to follow. But the employer has to take that decision in accordance with the terms of the contract.
    Hale LJ said: ‘One might have thought that the answer to the first issue was obvious. The employer who is contemplating disciplinary action against an employee has to decide which procedure should be followed. If the employee thinks that the employer has made the wrong choice, he can try to have it changed in advance or seek damages after the event. The court will have to perform its usual task of construing the contract and applying it to the facts of the case.’

    Judges:

    Keene LJ, Hale LJ

    Citations:

    Times 17-Jan-2001, [2000] EWCA Civ 342, [2001] ICR 903, [2000] Lloyd’s Rep Med 331

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Saeed v Royal Wolverhampton Hospitals NHS Trust 2000
    . .

    Cited by:

    Followed – Skidmore v Dartford and Gravesham NHS Trust CA 15-Jan-2002
    The appellant was a doctor accused of lying to a patient about the details of an operation. He appealed a decision dismissing him.
    Held: Such an allegation was an allegation of professional misconduct, and should have been dealt with as such, . .
    Approved – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
    The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
    Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
    The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
    Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
    The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
    Held: . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Health Professions

    Updated: 31 May 2022; Ref: scu.147375

    A Lawrence and Others v Regent Office Care Limited; Commercial Catering Group and Mitie Secure Services Limited: CA 21 Jun 2000

    Citations:

    [2000] EWCA Civ 196

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Lawrence and others v Regent Office Care Ltd and others EAT 5-Nov-1998
    . .

    Cited by:

    Reference from – Lawrence and others v Regent Office Care Ltd and Others ECJ 17-Sep-2002
    The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 31 May 2022; Ref: scu.147229

    East Riding of Yorkshire Council v Lorraine Gibson: CA 21 Jun 2000

    The European Directive which created rights for workers to minimum holidays, was not sufficiently precise to allow it to have direct effect, and so give rise to an individual’s right to sue an employer under its provisions directly. The Directive gave some discretion to a member state, ‘flexibility in the application of certain provisions,’ and that certain provisions might therefore be subject to derogations.

    Citations:

    Times 06-Jul-2000, [2000] EWCA Civ 199

    Links:

    Bailii

    Statutes:

    Working Time Directive 93/104/EC OJ 1993 L307/18

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Gibson v East Riding of Yorkshire District Council EAT 3-Feb-1999
    The Working Time Directive has direct application in the employment by an emanation of the state – a local authority, and an hourly paid part timer was entitled to four weeks paid holiday by the direct effect application of the Directive, and . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.147232

    Sidhu v Aerospace Composite Technology Ltd: CA 26 May 2000

    The claimant, a Sikh, had reacted to racial abuse on a works outing. A company policy, when considering an allegation of violence in the work place, of looking at the employee’s behaviour and ignoring provocation was not race specific. A person claiming race discrimination under such a policy would have to show that a person of a different race would have been treated differently under such a policy. The policy was not race specific and so was not directly discriminatory.

    Citations:

    Times 21-Jun-2000, Gazette 22-Jun-2000, [2000] EWCA Civ 183

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Sidhu v Aerospace Composite Technology Ltd EAT 10-Nov-1999
    An assault on a company sponsored day out could be within the course of employment. Exclusion by the employer of consideration that the assault might be racially motivated, was itself race-specific and discriminatory. . .

    Cited by:

    Appealed to – Sidhu v Aerospace Composite Technology Ltd EAT 10-Nov-1999
    An assault on a company sponsored day out could be within the course of employment. Exclusion by the employer of consideration that the assault might be racially motivated, was itself race-specific and discriminatory. . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 31 May 2022; Ref: scu.147216

    Martin v Lancashire County Council Appeal (and Cross Appeals) Bernadone v Pall Mall Services Group and Haringey Healthcare Nhs Trust and Independent Insurance Ltd: CA 16 May 2000

    Where an undertaking was transferred, existing liabilities arising out of the employment were transferred notwithstanding that these liabilities were not contractual. A claim for personal injuries became the responsibility of the new employer. At the same time, the right of the first employer to indemnity from his insurers was also transferred to the new employers. TUPE must be given ‘a purposive constructive having regard to, and, so far as possible, consistently with, the Directive’, and not so as to deprive an employee of rights he would have had if he had continued in the employment of the transferor.

    Judges:

    Peter Gibson LJ

    Citations:

    Times 26-May-2000, Gazette 15-Jun-2000, [2000] EWCA Civ 155, [2000] IRLR 487, [2001] ICR 197

    Links:

    Bailii

    Statutes:

    Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Bernadone v Pall Mall Services Group Ltd and Others QBD 2-Aug-1999
    Where an undertaking was transferred, and there remained outstanding a liability of the employer to an employee for damages for personal injuries, even though not pleaded under Health and Safety legislation, was transferred to the transferee by . .

    Cited by:

    Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
    EAT EQUAL PAY ACT
    JURISDICTIONAL POINTS: Claim in time and effective date of termination
    The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
    Cited – British Telecommunications Plc v Royal Mail Group Ltd QBD 7-Jan-2010
    The court considered the liability of the claimant for injury claims by former members of the Post Office at the date of the transfer.
    Held: The obligations had been transferred: ‘section 10(2) of the Act, if read according to both its natural . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.147188

    R A Capek v Lincolnshire County Council: CA 26 May 2000

    An employment tribunal had no jurisdiction to hear a claim for damages for breach of contract before the effective date of determination of the contract. The order had been intended to remedy a particular situation. The limit on the time within which a claim could be presented was the three months after dismissal. The claimant could still sue in the County Court, but the words of the order were clear.

    Citations:

    Times 07-Jun-2000, Gazette 15-Jun-2000, [2000] EWCA Civ 181, (2000) ICR 878

    Links:

    Bailii

    Statutes:

    Industrial Tribunals (Extension of Jurisdiction) Order 1994 (1994 No 1623) 3 7

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Miller Bros and F P Butler Ltd v Johnston EAT 14-Mar-2002
    EAT Procedural Issues – Employment Tribunal
    The former employee sought to enforce in the Employment Tribunal an agreement with their former employers as to the terms on which their employment ended. The . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.147214

    Outram v Academy Plastics Ltd: CA 19 Apr 2000

    An employer, who also operated as trustee of the company’s pension scheme, has no duty in negligence to give advice to scheme members as to how they should conduct their own membership of the scheme. No such obligation arises from the contractual relationship. Common law does not generally impose liability in tort for a pure omission. ‘ Looking more generally at the nature of the duty alleged, it is, of course, a duty to avoid causing economic loss. Secondly, if there is a duty, breach of it will result in liability for an omission (failure to advise) in circumstances where it is not alleged that the company were asked or expressly or impliedly assumed any contractual responsibility to give such advice. As a general rule the common law does not impose liability in tort for what are called ‘pure omissions’. In this respect it should be noted that in all the ‘advice’cases some advice had been given. The courts have had to decide whether it was given in circumstances which required the adviser to take care or whether a duty to do so, which was admittedly owed to some, was also owed to others. When advice has been given and a duty is owed the duty may be breached by omission but our case is one where no advice was given so it is one of pure omission.’

    Judges:

    Tuckey LJ

    Citations:

    Times 26-Apr-2000, Gazette 18-May-2000, [2000] EWCA Civ 141, [2001] 1CR 367

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Cited by:

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

    Financial Services, Employment, Negligence

    Updated: 31 May 2022; Ref: scu.147174

    Royston Frederick Williams v BOC Gases Ltd: CA 29 Mar 2000

    The plaintiff claimed damages from his employer in respect of injuries suffered during the course of his employment. The defendant paid the claimant a sum to which he had no contractual entitlement, saying that it was to be treated as an advance against any damages that he might be awarded against the defendant. The money came from the defendant’s own fund.
    Held: ‘In my judgment, the judge was over-influenced by the decision of this court in McCamley which should be treated, until it receives the consideration of the House of Lords, as a case turning on its own particular facts: in other words, for what members of that court, deciding the issue as a jury question, thought was just, reasonable and in accordance with public policy on the facts of that case.’ and ‘The ‘benevolence’ exception is limited in terms to gifts arising from the benevolence of third parties, and does not cover benevolent gifts made by the wrongdoer himself, for which allowance ought prima facie to be made against any compensation he might have to pay. Neither of the justifications for the benevolence exception apply to the tortfeasor. Deductibility will encourage him to make benevolent payments in future to injured employees, rather than the reverse. And it certainly cannot be said that in making the gift, his intention was to benefit the plaintiff rather than to relieve himself of liability pro tanto: he would have been happy to achieve both purposes at once. A fortiori in a case in which he said in terms, at the time he made the gift, that it was to be treated as an advance against any damages he might have to pay.’

    Judges:

    Brooke LJ, Thorpe LJ

    Citations:

    [2000] EWCA Civ 95, [2000] ICR 1181

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Doubted – McCamley v Cammell Laird Shipbuilders Limited CA 1990
    The plaintiff suffered injury at work and claimed damages. He had received a lump sum under insurance provided by the defendant’s parent company for the benefit of employees injured at work. Did the lump sum payment fall to be deducted from the . .
    Cited – Parry v Cleaver HL 5-Feb-1969
    PI Damages not Reduced for Own Pension
    The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
    Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

    Cited by:

    Cited – Pirelli General Plc and others v Gaca CA 26-Mar-2004
    The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
    Held: McCamley was no longer good . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Personal Injury, Damages

    Updated: 31 May 2022; Ref: scu.147128

    Drage v Governors of Greenford High School: CA 16 Mar 2000

    Where an employee is summarily dismissed, but pursues an appeal against that dismissal, the effective date of termination of employment may be the date when the appeal is decided against him. It can depend upon whether the employee stood suspended pending the outcome of the appeal, or whether he was dismissed with the possibility of re-instatement. This might be dealt with according, for example, to whether he was issued with a P45 and was free to take up other employment straight away.

    Citations:

    Times 31-Mar-2000, Gazette 06-Apr-2000, [2000] EWCA Civ 75

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 31 May 2022; Ref: scu.147108

    Bache v Essex County Council: CA 21 Jan 2000

    An Employment Tribunal did not have the right to refuse to hear a representative selected by a party appearing before it. Where that representative was a member of a professional body, then the tribunal might exercise some discipline by referring misconduct to a regulatory body, but the right for the party to choose his representative was simply stated and absolute. The tribunal could not require him to represent himself.

    Citations:

    Times 02-Feb-2000, Gazette 03-Feb-2000, [2000] EWCA Civ 3

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment, Administrative

    Updated: 31 May 2022; Ref: scu.147036

    Dench v Fynn and Partners (A Firm): EAT 26 Feb 1997

    Preliminary hearing to see if there is an arguable issue of law arising out of the Tribunal decision.

    Judges:

    Pugsley D J

    Citations:

    [1997] UKEAT 107 – 97 – 2602

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Dench ex parte v Fynn and Partners (a Firm) CA 25-Jun-1997
    Application for leave to appeal – granted. . .
    See Also – Dench v Fynn and Partners EAT 30-Oct-1997
    . .
    See Also – Dench v Flynn and Partners (a Firm) CA 9-Jun-1998
    The appellant had been dismissed for redundancy. She sought to appeal saying that there had been no redundancy. The tribunal had refused to award damages for the period after she had found alternative employment.
    Held: The obtaining of . .
    See Also – Dench v Fynn and Partners EAT 24-Sep-1999
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.207192

    Dr Grace Awaekpo v St Mary’s NHS Trust and others: CA 10 Aug 1999

    Citations:

    [1999] EWCA Civ 2075

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Awaekpo v St Mary’s Hospital NHS Trust and others EAT 22-Jan-1999
    . .
    Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
    The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
    Held: Mummery J made the distinction between single acts of discrimination, and continuing . .

    Cited by:

    See Also – Awaekpo v St Mary’s Hosptial NHS Trust EAT 12-Jan-2000
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 31 May 2022; Ref: scu.146990

    Gogay v Hertfordshire County Council: CA 26 Jul 1999

    Application for leave to appeal – granted.

    Citations:

    [1999] EWCA Civ 1964

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Cited by:

    Leave application – Gogay v Hertfordshire County Council CA 26-Jul-2000
    The employee sought damages for breach of the implied term of trust and confidence, even though she remained throughout the employment of the Council against whom she was bringing proceedings.
    Held: Her remaining in employment was a factor . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Personal Injury

    Updated: 31 May 2022; Ref: scu.146879

    ECM (Vehicle Delivery) Services Ltd v B Cox and others: CA 22 Jul 1999

    Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was a transfer of an undertaking within the Regulations. Mummery LJ summarised the issue as being whether ‘there was a continuation in the hands of ECM of the existence of a discrete economic entity previously carried on by Axial’.

    Judges:

    Henry, Mummery, Laws LJJ

    Citations:

    Gazette 22-Sep-1999, (1999) IRLR 559, [1999] ICR 1162, [1999] EWCA Civ 1927

    Links:

    Bailii

    Statutes:

    Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

    Jurisdiction:

    England and Wales

    Citing:

    Cited – ECM (Vehicle Delivery Service) Ltd v Cox and Others EAT 10-Jun-1998
    Employees within a unit employed to satisfy requirements of a contract in one firm had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was transfer of . .

    Cited by:

    Considered – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
    ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
    Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
    Appealed to – ECM (Vehicle Delivery Service) Ltd v Cox and Others EAT 10-Jun-1998
    Employees within a unit employed to satisfy requirements of a contract in one firm had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was transfer of . .
    Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
    EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
    Lists of cited by and citing cases may be incomplete.

    Employment, European

    Updated: 31 May 2022; Ref: scu.146842

    Lovett v Wigan Metropolitan Borough Council: CA 22 Jul 1999

    Citations:

    [1999] EWCA Civ 1932

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Lovett v Wigan Metropolitan Borough Council EAT 9-Feb-1999
    . .
    See Also – Lovett v Wigan Borough Council EAT 16-Aug-2002
    . .

    Cited by:

    Appealed to – Lovett v Wigan Metropolitan Borough Council EAT 9-Feb-1999
    . .
    See Also – Lovett v Wigan Borough Council EAT 16-Aug-2002
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 31 May 2022; Ref: scu.146847

    Daniel v Homerton Hospital Trust: CA 9 Jul 1999

    The court considered an appeal against the tribunal’s exercise of a discretion. Gibson LJ said: ‘The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong.”

    Judges:

    Gibson LJ

    Citations:

    [1999] EWCA Civ 1798

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Daniel v Homerton Hospital Trust EAT 14-Dec-1998
    . .
    See Also – Daniel v Homerton Hospital Trust EAT 18-May-1998
    . .

    Cited by:

    Cited – Robertson v Bexley Community Centre CA 11-Mar-2003
    The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
    Held: A tribunal has a very wide discretion in the area of whether to extend . .
    Cited – Department of Constitutional Affairs v Jones CA 18-Jul-2007
    The employer appealed an order extending the time for the claimant to claim disability discrimination. The claimant had been suspended pending disciplinary proceedings, but became subject to severe depression, and his doctors said he was unfit to . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 30 May 2022; Ref: scu.146713

    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 Christopher Staughton said: ‘I would only add this in relation to the merits. Mummery J said at p.246 of the United Arab Emirates [1995] IRLR 243 case, that the merits are usually of little weight and they should not be investigated in detail. I agree with that. But I would however say that, if it is plain that the appeal has no prospect of success, that must be a matter which should be taken into account. There can be no point in giving an extension of time for an appeal which is bound to fail.’
    Butler-Sloss LJ acknowledged that the Abdelghafar guidelines imposed a more restrictive regime for appealing to the EAT than to the Court of Appeal applied for appeals to itself, but pointed out, first, the distinction between the EAT and the CA, the appellate jurisdiction of the EAT being confined to appeals on law; and, second, that the EAT was empowered under section 30(3) of the 1996 Act to regulate its own procedure and that ‘[i]t has its own good reasons for requiring the parties to deal with proposed appeals expeditiously . . It is right that on appeals on law people must get their cases in in time. In this particular case I agree with Morison J that this is an honest explanation of mistake but it is not an acceptable one.’

    Judges:

    Sir Christopher Staughton, Pill, Butler-SlossLJJ

    Citations:

    [1999] EWCA Civ 1479, [2000] IRLR 111

    Links:

    Bailii

    Statutes:

    Employment Tribunals Act 1996 30(3)

    Jurisdiction:

    England and Wales

    Citing:

    Approved – United Arab Emirates v Abdelghafar and Another EAT 10-Jul-1995
    The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
    Held: The tribunal had erred. Though Sengupta had been decided under common law, it . .
    Appeal from – Aziz v Bethnal Green City Challenge Co Ltd EAT 3-Dec-1998
    . .

    Cited by:

    Cited – Peters v Sat Katar Co Ltd (in liquidation) CA 20-Jun-2003
    The claimant had sent a notice of appeal, but it was lost in the post. He now appealed a refusal of leave to apply out of time.
    Held: The EAT should look at the circumstances. Here a litigant in person would not have been alerted to the need . .
    Cited – Dolega-Ossowski v Harvey Nichols EAT 20-Mar-2003
    The EAT considered applications for leave to appeal out of time from both parties.
    Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
    1) What is the explanation for the default?
    2) Does it . .
    Cited – 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 . .
    Cited – Harper and Another v Hopkins CA 12-Oct-2010
    The appellants appealed against refusal by the EAT of an extension of time for them to appeal.
    Held: The court could take some account of the prospects of success in deciding whether to extend time. . .
    Followed – Sefton Metropolitan Borough Council and Another v Hincks and Others EAT 14-Jul-2011
    EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
    PRACTICE AND PROCEDURE – Amendment
    EQUAL PAY ACT – Case Management
    Equal pay claimants in their original grievances named a . .
    Cited – Nalamolu v South London and Maudsley NHS Foundation Trust EAT 2-Mar-2012
    EAT Practice and Procedure : Appellate Jurisdiction or Reasons or Burns-Barke – The Notice of Appeal was 35 days out of time. The Registrar refused to extend it. The Claimant was 144 days out of time in his . .
    Cited – Scotford v Smithkline Beecham EAT 25-Oct-2001
    . .
    Cited – Khudados v Leggate and others EAT 16-Feb-2005
    Application was made to make extensive amendments to the notice of appeal.
    Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 30 May 2022; Ref: scu.146394

    Whitehouse v Chas A Blatchford and Sons Ltd: CA 29 Sep 1999

    A transfer of undertaking was conditional upon a reduction in the workforce, so that a dismissal which followed the transfer was for an ‘economic, technical, or organisational’ reason entailing a change in the workforce’. The transfer was the occasion of the job loss, but not the cause or reason for that deduction. The dismissal was connected with the provision of the service.

    Judges:

    Beldam, Buxton, Jonathan Parker LJJ

    Citations:

    Gazette 29-Sep-1999, (1999) IRLR 482, [1999] EWCA Civ 1255, [2000] ICR 242

    Links:

    Bailii

    Statutes:

    Transfer of Undertakings (Protection of Employment) Regulations 1981 No 1794 8 (2)

    Jurisdiction:

    England and Wales

    Employment

    Updated: 30 May 2022; Ref: scu.146170

    C Maloney v London Borough of Hammersmith and Fulham; C Whatford; Governing Body of Hammersmith School and D A Williams: CA 7 May 1999

    The claimant sought damages from the respondents. The case was listed to be heard over 25 days, but she sought an adjournment because of her own ill health. She appealed a refusal of the adjournment. The adjournment was refused on several grounds, including the great age of the action, and the need for a speedy answer because of the effects on others. The EAT had followed Mansell and refused to set aside an interlocutory order of the Employment Tribunal.
    Held: Appeals on matters not put to the EAT had to be refused. It could not be shown that the decisions of the ET and EAT were perverse. Others might have decided differently, but that was not the test.

    Judges:

    Lord Justice Kennedy, Lord Justice Otton And Lord Justice Clarke

    Citations:

    [1999] EWCA Civ 1360

    Links:

    Bailii

    Statutes:

    Sex Discrimination Act 1975 4, Race Relations Act 1976 2, Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 8

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Mansell v Curry 1993
    Appeals against interlocutory decisions of Employment Tribunals concerning the grant of adjournments are to be deplored. . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment

    Updated: 30 May 2022; Ref: scu.146275

    Lean v Manpower Group: EAT 15 Oct 2018

    Central Arbitration Committee – The Transnational Information and Consultation of Employees Regulations 1999 as amended in 2010 (TICE) are the domestic implementation of EU Council Directive 2009/38/EC. Pursuant to TICE Regulation 9, on 3 June 2013 a request was made by employees’ representatives of the Respondent Community-scale undertaking (Manpower) to negotiate an agreement for a European Works Council (EWC). There followed ballots for membership of the necessary Special Negotiating Body (SNB) throughout Manpower’s European workplaces. The Claimant Mr Lean, an employee of Manpower, stood as a candidate in the UK SNB ballot but was not elected. Negotiations between the SNB and Manpower’s central management took place. This resulted in an EWC agreement signed on 13 March 2017, which was more than 3 years after the date of the request to negotiate. TICE Regulation 18(1)(c) states that the provisions contained in its Schedule (the Subsidiary Requirements) for establishing the EWC ‘ . . shall apply if – . . (c) after the expiry of a period of three years beginning on the date on which a valid request referred to in regulation 9 was made, the parties have failed to conclude an agreement under regulation 17 and the special negotiating body has not taken the decision under regulation 16(3).’ No such decision under Regulation 16(3) had been taken.
    On 30 January 2017, i.e. before the EWC agreement was entered, the Claimant made complaint to the CAC pursuant to TICE Regulation 20 on the basis that (i) ‘because of a failure of central management, the [EWC] . . has not been established’ (20(1)(b)); and that (ii) as an employee and ‘in a case where a [SNB] does not exist’ (20(3)(b)), he was a ‘relevant applicant’ for that purpose. In particular he contended that the effect of Regulation 18(1)(c) was that, in the event that an EWC agreement had not been concluded between the SNB and central management within 3 years of the Regulation 9 request to negotiate, the SNB as a matter of law ceased to exist.
    The CAC dismissed the complaint, holding that the existence of the SNB was a question of fact; and that the SNB in fact continued in existence after the third anniversary of the request to negotiate.
    The EAT dismissed the Claimant’s appeal, in particular holding that on its proper construction Regulation 18(1)(c) is not to be read as if its conditions for application of the Schedule are merely the expiry of 3 years without an EWC; that its words ‘failed to conclude an agreement’ mean ‘are unable to conclude an agreement’; that as at the third anniversary of the request to negotiate the parties were not unable to reach agreement, and thereafter proceeded to do so; that the SNB continued to exist after the third anniversary; and that accordingly the Claimant was not a ‘relevant applicant’ for the purpose of TICE Regulation 20.

    Citations:

    [2018] UKEAT 0096 – 18 – 1510

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 30 May 2022; Ref: scu.634375

    Ministry of Justice v Burton and Another: CA 12 Jul 2016

    This appeal raises a short point. It arises out of the long running litigation about whether, and to what extent, part-time fee-paid judges have been treated less favourably than full-time salaried judges contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
    Held: The Ministry’s appeal failed. The appellant had not established any perversity in the ET’s judgment to the high level required on such an appeal.

    Judges:

    Elias, Kitchin, King LJJ

    Citations:

    [2016] EWCA Civ 714, [2016] ICR 1128, [2016] WLR(D) 383

    Links:

    Bailii, WLRD

    Statutes:

    Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

    Jurisdiction:

    England and Wales

    Legal Professions, Employment, Discrimination

    Updated: 30 May 2022; Ref: scu.566851

    New Century Cleaning Co Ltd v Church: CA 26 Mar 1999

    The employer had withheld ten per cent of the claimant’s wages, Employees worked in teams cleaning windows in office blocks. The team agreed how the fee for the block would be divided. The employer reduced its fees to customers, and accordingly the sums paid to the employees. It now appealed a finding of an unlawful deduction, saying that it had been prevented from calling cetain evidence.
    Held: There had been no significant dispute as to the facts, but the tribunal could not say that it evidence would not have been of assistance, and the matter was remitted ccordingly. Parliament did not limit the question of deductions to wages contractually ascertained, but extended it to all sums properly payable, and ‘on the present findings the system with which this case is concerned falls squarely within the statutory purpose and comfortably within the statutory language. ‘

    Judges:

    Beldam LJ, Morritt LJ, Sedley LJ

    Citations:

    [1999] EWCA Civ 1112, [2000] IRLR 27

    Links:

    Bailii

    Statutes:

    Employment Rights Act 1996 27(1)(a)

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Devonald v Rosser 1906
    An employer’s failure to provide a reasonable amount of work, barring force majeure, is a breach of the contract of employment. . .
    Cited – Sagar v Ridehalgh 1931
    A contractually agreed reduction for poor workmanship is not to be treated as an unlawful deduction from wages. . .
    Cited – Bruce and Others v Wiggins Teape (Stationery) Ltd EAT 13-May-1994
    Employees appealed against decisions that their employer had not made unlawful deductions from their wages. The company had unilaterally reduced the rate of overtime pay.
    Held: The appeal was allowed.
    Mummery J P said: ‘the reason why the . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 30 May 2022; Ref: scu.146027

    Rowlands v City of Bradford Metropolitan District Council: CA 26 Mar 1999

    The defendant appealed a finding of the EAT that the claimant had standing to claim discrimination under the Act in the way her application to be a foster mother had been treated.
    Held: After the EAT decision in W v Essex, it was clear that the relation ship between the council and a foster parent was not one of appointment or employment and was protected by the Act. The appeal succeeded.

    Citations:

    [1999] EWCA Civ 1116

    Links:

    Bailii

    Statutes:

    Race Relations Act 1976 78

    Jurisdiction:

    England and Wales

    Citing:

    Cited – W 1-6 v Essex County Council and Another CA 2-Apr-1998
    A Local Authority had a duty of care to a fostering family when allocating children. A child was known to have a history of sexual abuse and was fostered with a family with other children, and no warning had been given.
    Foster parents sued the . .
    Cited – Norweb Plc v Dixon QBD 24-Feb-1995
    Electric supply was not made under a contract properly so called, and no offence was committed of harassment for payment. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their . .

    Cited by:

    Cited – Bullock v Norfolk County Council EAT 24-Jan-2011
    bullock_norfolkEAT11
    EAT RIGHT TO BE ACCOMPANIED
    The Employment Tribunal did not err in holding that the Claimant, a foster carer, was not a worker within the meaning of the Employment Rights Act 1996 and 1999. Accordingly she . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, Employment

    Updated: 30 May 2022; Ref: scu.146031

    Weathersfield Ltd (T/a Van and Truck Rentals) v Sargent: CA 10 Dec 1998

    The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there were no vehicles available. Upset by that policy she promptly resigned, and later claimed constructive dismissal.
    Held: The employer’s appeal failed. An employee leaving without stating the reason for his dismissal need not always be debarred from claiming constructive dismissal, though the acceptance of repudiation should normally be communicated. Racial Discrimination isn’t solely directed at complainant. The applicant who had been dismissed for refusing to implement a racially discriminatory trading policy had been discriminated against on racial grounds. Pill LJ said: the words on ‘racial grounds’ were to be broadly construed; and it was ‘justified and appropriate’ to give a broad meaning to the expression racial grounds. Swinton Thomas LJ thought that there was value in the respondent’s submission that s1(1)(a) might have been intended to be limited to the race of the complainant, but then rejected that proposition, and accepted the Showboat principle of the broad construction of ‘racial grounds’: ‘I do not think that it is helpful in a case such as this to try and ascertain the intention of a draftsman of the Act, or the intention of Parliament, because it seems to me to be unlikely that the circumstances that arise in this case were considered either by the draftsman or by Parliament. In my judgment it is more helpful to focus on the intention underlining the Act itself and the words used. The intent of the Act is to deter racial discrimination . . ‘

    Judges:

    Pill LJ, Swinton Thomas LJ and Beldam LJ

    Citations:

    Times 31-Dec-1998, Gazette 03-Feb-1999, [1998] EWCA Civ 1938, [1999] ICR 425, [1999] IRLR 94, [1999] Disc LR 290

    Links:

    Bailii

    Statutes:

    Race Relations Act 1976

    Jurisdiction:

    England and Wales

    Citing:

    Approved – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
    The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
    Appeal from – Weathersfield Ltd (T/A Van and Truck Rentals) v Sargent EAT 6-Jun-1997
    . .

    Cited by:

    Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
    Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
    Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
    Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
    The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
    Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
    The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 30 May 2022; Ref: scu.145417

    Thurstan Hoskin and Partners v Jewill Hill and Bennett (A Firm) and others: CA 5 Feb 2002

    Citations:

    [2002] EWCA Civ 249

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Office Angels Ltd v Rainer-Thomas CA 1991
    Reasonability Test of Post Employment Restriction
    The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
    See Also – Hoskin v Hill and Bennett and others CA 9-May-2001
    . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Contract

    Updated: 30 May 2022; Ref: scu.216860

    Henry Cooke, Lumsden Plc v Towler: CA 14 Feb 2002

    Citations:

    [2002] EWCA Civ 238

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – C Towler v Henry Cooke Lumsden Plc EAT 19-Dec-2000
    EAT Unfair Dismissal – Reason for Dismissal
    The Appellant was a senior investment executive with the Respondents. He worked for them for 30 years in highly regulated environment. He was dismissed for . .

    Cited by:

    See Also – Towler v Henry Cooke Lumsden Plc CA 15-Nov-2001
    . .
    Appealed to – C Towler v Henry Cooke Lumsden Plc EAT 19-Dec-2000
    EAT Unfair Dismissal – Reason for Dismissal
    The Appellant was a senior investment executive with the Respondents. He worked for them for 30 years in highly regulated environment. He was dismissed for . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 30 May 2022; Ref: scu.216793

    Dench v Flynn and Partners (a Firm): CA 9 Jun 1998

    The appellant had been dismissed for redundancy. She sought to appeal saying that there had been no redundancy. The tribunal had refused to award damages for the period after she had found alternative employment.
    Held: The obtaining of permanent employment at the same or a greater salary will not in all cases break the chain of causation.

    Judges:

    Beldam, Mummery LJJ, Sir Christopher Staughton

    Citations:

    [1998] EWCA Civ 934, [1998] IRLR 653

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

    See Also – Dench v Fynn and Partners (A Firm) EAT 26-Feb-1997
    Preliminary hearing to see if there is an arguable issue of law arising out of the Tribunal decision. . .
    See Also – Dench ex parte v Fynn and Partners (a Firm) CA 25-Jun-1997
    Application for leave to appeal – granted. . .
    See Also – Dench v Fynn and Partners EAT 30-Oct-1997
    . .

    Cited by:

    See Also – Dench v Fynn and Partners EAT 24-Sep-1999
    . .
    Cited – Afolayan v MRCS Ltd EAT 23-Aug-2011
    EAT UNFAIR DISMISSAL
    Where an Employment Tribunal has been directed by the Employment Appeal Tribunal and by a Regional Employment Judge, to consider an application for costs of a hearing before a . .
    Cited – Commercial Motors (Wales) Ltd v Howley EAT 6-Aug-2012
    commercial_howleyEAT2012
    EAT UNFAIR DISMISSAL – Compensation
    In a hearing on remedies for unfair dismissal, the Employment Tribunal held that the Respondent employer had to pay compensation for, inter alia, the losses suffered by . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Damages

    Updated: 30 May 2022; Ref: scu.144413

    W 1-6 v Essex County Council and Another: CA 2 Apr 1998

    A Local Authority had a duty of care to a fostering family when allocating children. A child was known to have a history of sexual abuse and was fostered with a family with other children, and no warning had been given.
    Foster parents sued the council for breach of contract and for alleged negligence for breach of duty of care.
    Held: There was no contractual relationship between the foster parents and the local authority. ‘although the Specialist Foster Carer Agreement had a number of features which one would expect to find in a contract, such as the payment of an allowance and expenses, provisions as to National Insurance, termination and restriction on receiving a legacy or engaging in other gainful employment and other matters to which the judge referred… I do not accept that this makes the agreement a contract in the circumstances of this case. A contract is essentially an agreement that is freely entered into on terms that are freely negotiated. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their most important respects, there is no contract’

    Citations:

    Times 09-Apr-1998, Gazette 20-May-1998, [1998] 3 WLR 534, [1998] EWCA Civ 614, [1998] 3 All ER 111

    Links:

    Bailii

    Statutes:

    Race Relations Act 1976

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Norweb Plc v Dixon QBD 24-Feb-1995
    Electric supply was not made under a contract properly so called, and no offence was committed of harassment for payment. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their . .
    Appeal from – W and Others v Essex County Council and Another QBD 16-Jul-1997
    A social worker has a duty of care to inform prospective foster parents of the information which a reasonable social worker would provide. . .

    Cited by:

    Cited – Rowlands v City of Bradford Metropolitan District Council CA 26-Mar-1999
    The defendant appealed a finding of the EAT that the claimant had standing to claim discrimination under the Act in the way her application to be a foster mother had been treated.
    Held: After the EAT decision in W v Essex, it was clear that . .
    Appeal from – W v Essex County Council and Another HL 17-Mar-2000
    A foster child was placed with a family. The child had a history of abusing other children, but the foster parents, who had other children were not told. The foster child caused psychiatric damage to the carers.
    Held: It was wrong to strike . .
    Cited – Bullock v Norfolk County Council EAT 24-Jan-2011
    bullock_norfolkEAT11
    EAT RIGHT TO BE ACCOMPANIED
    The Employment Tribunal did not err in holding that the Claimant, a foster carer, was not a worker within the meaning of the Employment Rights Act 1996 and 1999. Accordingly she . .
    Lists of cited by and citing cases may be incomplete.

    Negligence, Local Government, Employment

    Updated: 30 May 2022; Ref: scu.144092

    Divine-Bortey v London Borough of Brent: CA 14 May 1998

    The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in Henderson.
    Held: The Council’s appeal succeeded. The rule in Henderson should have been applied.

    Judges:

    Simin Brown LJ, Swinton Thomas LJ, Potter LJ

    Citations:

    [1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832

    Links:

    Bailii, Bailii, Bailii

    Statutes:

    The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 9(1)

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Divine-Bortey v London Borough of Brent EAT 18-Apr-1997
    . .
    Cited – Henderson v Henderson 20-Jul-1843
    Abuse of Process and Re-litigation
    The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
    Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
    Cited – Munir v Jang 1989
    The doctrine of issue estoppel applies also in Industrial Tribunal cases. . .
    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 – Dimtsu v Westminster City Council EAT 1991
    The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
    Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
    Cited – King v Great Britain China Centre CA 1991
    The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
    Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
    Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
    The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
    Cited – Talbot v Berkshire County Council CA 23-Mar-1993
    In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint . .

    Cited by:

    Cited – Air Canada Alpha Catering Services v Basra EAT 21-Feb-2000
    EAT Procedural Issues – Employment Tribunal . .
    Cited – British Airways Plc vBoyce SCS 7-Dec-2000
    . .
    Cited – Egan v NASUWT NIIT 26-Mar-2007
    The decision of the tribunal is that the claimant is entitled to pursue his complaint under Article 31 of the Trade Union and Labour Relations (Northern Ireland) Order 1995. The doctrine of estoppel per rem judicatam applies in the sense of ‘decided . .
    Cited – Mensah v East Hertfordshire NHS Trust CA 10-Jun-1998
    An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
    Cited – Lawal v Northern Spirit Ltd EAT 6-Oct-1999
    The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
    Held: There was no real possibility of bias from this scenario. . .
    Cited – London Borough of Lambeth and Another v Apelogun-Gabriels CA 22-Nov-2001
    . .
    Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
    Fairness of SIAC procedures
    Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Litigation Practice

    Updated: 30 May 2022; Ref: scu.144310

    Exmoor Ales Ltd and Another v Herriot: EAT 19 Nov 2018

    Contract of Employment : Whether Established – JURISDICTIONAL POINTS – Worker, employee or neither
    JURISDICTIONAL POINTS – Agency relationships
    The employment tribunal had not erred in law or made any perverse decision in finding that the Claimant became an employee of the First Respondent, employed under a contract of employment, from April 2011 onwards when she undertook an obligation to work exclusively for the First Respondent, in return for a quarterly ‘exclusivity’ payment of pounds 1,000. Nor was the tribunal’s reasoning deficient.
    It was not open to the Respondents to contend on appeal that the Claimant had never entered into any contract of any kind with either Respondent and that the contract was, rather, between the partnership in which the Claimant was a partner and the First Respondent. That argument had not been advanced to the employment tribunal; the argument below had been that the Claimant provided services personally to the First Respondent under a contract for services, not that she never contracted personally at all.

    Citations:

    [2018] UKEAT 0075 – 18 – 1911

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment

    Updated: 30 May 2022; Ref: scu.634376

    Akhigbe v St Edwards Home Ltd and Others: EAT 8 Mar 2019

    JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
    The employment judge had erred in rejecting a second claim brought by the Claimant against the same two Respondents as an earlier claim (the first claim) brought by him. The first and second claims were claims ‘relating to’ the same ‘matter’ for the purposes of the early conciliation requirement in section 18A(1) of the Employment Tribunals Act 1996. The two claims could not be said to relate to different matters.
    It is a question of fact and degree in each case, where successive claims are brought by the same Claimant against the same Respondent or Respondents, whether the second claim is a claim relating to the same ‘matter’ as the first claim. The judge had not properly addressed that issue in the present case and his decision that a fresh early conciliation certificate was required before the second claim could be brought, was flawed.
    He should not have rejected the second claim under Rule 12(1)(c) of the Employment Tribunal Rules of Procedure 2013. However, the error was immaterial since the judge was bound by Rule 12(1)(b) to reject the claim as an abuse of process. The second claim duplicated the first claim and sought to add to it a new race discrimination claim which could and should have been litigated, if at all, in the first claim. The judge’s decision was upheld on that different ground.

    Judges:

    Kerr J

    Citations:

    [2019] UKEAT 0110 – 18 – 0803

    Links:

    Bailii

    Statutes:

    Employment Tribunal Rules of Procedure 2013, Employment Tribunals Act 1996 18A(1)

    Jurisdiction:

    England and Wales

    Employment

    Updated: 30 May 2022; Ref: scu.634370

    Regina v Secretary of State for Health, Ex parte Guirguis: CA 1990

    The secretary of state did not have jurisdiction to intervene in disciplinary proceedings to say whether a doctor had properly been dismissed where the allegation was of personal rather than professional misconduct.

    Citations:

    [1990] IRLR 30

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
    The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Health Professions

    Updated: 29 May 2022; Ref: scu.182499

    Merseyside Tec Limited v Noorani: CA 21 Nov 1997

    Application for leave to appeal. The respondent had said that the EAT had erred in overturning the tribunal chair’s decision not to issue witness summonses.
    Held: Leave was granted.

    Citations:

    [1997] EWCA Civ 2795

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Noorani v Merseyside TEC Ltd EAT 17-Jun-1997
    The claimant appealed against the dismissal of his complaint of race discrimination saying that the tribunal had erred in not issuing a witness summons. The tribunal had said that the potential evidence was not relevant.
    Held: There had been . .
    Cited – Dada v Metal Box Co Ltd NIRC 1974
    Sir John Donaldson sets out the considerations when a witness order is sought in an employment dispute before the court. He said: ‘We are quite clear that tribunals have a discretion in deciding whether or not to issue witness orders. There is no . .

    Cited by:

    Leave to appeal – Noorani v Merseyside TEC Limited CA 19-Oct-1998
    The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
    See Also – Noorani v Merseyside TEC Limited EAT 21-Apr-1999
    A tribunal’s discretion not to grant witness summonses because the witnesses appeared to be only of limited relevance was not to be interfered with, save where it was unreasonable. A tribunal can always act to remedy the refusal later if this . .
    Lists of cited by and citing cases may be incomplete.

    Employment, Discrimination

    Updated: 29 May 2022; Ref: scu.143194

    Virdi v Commissioner of Police of Metropolis: EAT 2 Dec 1998

    Appeal against the decision of an Industrial Tribunal effectively to stay the Applicant’s complaint. The claimant police officer complained of racial abuse from fellow officers. The stay had been pending completion of criminal proceedings against the claimant.
    Held: The chairman had acted within the range of his discretion. However the first date available should be fixed to set a hearing date.

    Judges:

    Morison P J

    Citations:

    [1998] UKEAT 1234 – 98 – 0212

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment, Discrimination

    Updated: 29 May 2022; Ref: scu.207065

    Saini v All Saints Haque Centre and others: EAT 24 Oct 2008

    EAT Religion or Belief Discrimination
    Discrimination on grounds of religious belief. Tribunal erred in considering only whether or not the Respondents mistreated the Claimant on the grounds of his religion in circumstances where they found as fact they mistreated him for the purpose of seeking to get rid of another employee on the grounds of that employee’s religion.

    Citations:

    [2008] UKEAT 0227 – 08 – 2410

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Employment, Discrimination

    Updated: 29 May 2022; Ref: scu.277158

    Forster v Cartwright Black Solicitors: EAT 25 Jun 2004

    EAT Time Off – Parental Leave – Time off for dependant care. Construction of ERA section 57A and Parental Leave Directive to cover death of elderly dependant. Application of Qua [2003] IRLR 184.

    Judges:

    The Honourable Mr Justice Beatson

    Citations:

    [2004] UKEAT 0179 – 04 – 2506, UKEAT/0179/04

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Citing:

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

    Employment

    Updated: 29 May 2022; Ref: scu.200514