Category: Employment

Dominguez v Prefect of the Central Region (Social Policy): ECJ 8 Sep 2011

ECJ Article 31, paragraph 2, of the Charter – Fundamental social rights – General principles of law – horizontal effect of directives – Article 7 of Directive 2003/88/EC – Working conditions – Working time arrangements – The right to annual leave paid – Birth of entitlement regardless of the nature of the absence of the worker and his life – National legislation making the grant of leave to work a minimum number of ten days – Obligation for the national court to disapply the application of national provisions contrary to EU law

Citations:

C-282/10, [2011] EUECJ C-282/10

Links:

Bailii

Statutes:

Directive 2003/88/EC 7

Jurisdiction:

European

Cited by:

Opinion – Dominguez v Prefect of the Central Region (Social Policy) ECJ 24-Jan-2012
ECJ Social policy – Directive 2003/88/EC – Article 7 – Right to paid annual leave – Precondition for entitlement imposed by national rules – Absence of the worker – Length of the leave entitlement based on the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 November 2022; Ref: scu.444099

British Broadcasting Corporation v Kelly-Phillips: EAT 25 Jun 1997

Citations:

[1997] UKEAT 1397 – 96 – 2506

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – British Broadcasting Corporation v Kelly-Phillips CA 24-Apr-1998
When a one year fixed term employment contract was extended by a period of less than a year, but then not again renewed, there was no unfair dismissal, since the exemption for the original term applied also to any extension. There had been . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 November 2022; Ref: scu.207523

London Underground Ltd v Strouthos: EAT 4 Jun 2003

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

His Hon Judge McMullen QC

Citations:

EAT/0016/03, [2003] EAT 0016 – 03 – 0406, [2003] UKEAT 0016 – 03 – 0406

Links:

Bailii, Bailii, EATn

Jurisdiction:

England and Wales

Cited by:

Appeal from – Strouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
See also – London Underground Ltd v Strouthos CA 17-Dec-2003
Application for permission to appeal from EAT – granted . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 November 2022; Ref: scu.188092

FSS Travel and Leisure Systems Limited v Johnson and Chauntry Corporation Limited: CA 19 Nov 1997

The court considered a covenant said to be in restraint of trade. The employee was a 25 year old computer programmer who had worked entirely upon a computerised booking system for the travel industry.
Held: The employer had failed to identify just which parts of the substantial software range was confidential. The court set out ‘well settled legal propositions affecting restrictive covenants in an employment contract’, beginning with the propositions that the court will never uphold a covenant from an employer merely to protect himself from competition by a former employee, and that there must be some subject matter which an employer can legitimately protect by a restrictive covenant.

Judges:

Mummery LJ

Citations:

[1997] EWCA Civ 2759, [1999] FSR 235, [1999] ITCLR 218, [1998] IRLR 382

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 . .

Cited by:

Cited – Thomas v Farr Plc and Another CA 20-Feb-2007
The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 November 2022; Ref: scu.143158

Ministry of Defence v Wheeler and Others: CA 5 Nov 1997

Damages for unfair dismissal for pregnancy were to be calculated as a sum which the employee would have been earned, less any actual or putative earnings and a discount.

Citations:

Gazette 26-Nov-1997, Times 19-Nov-1997, [1997] EWCA Civ 2647, [1998] ICR 242, [1998] IRLR 23, [1998] 1 WLR 637, [1998] 1 All ER 790

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Damages, Armed Forces

Updated: 10 November 2022; Ref: scu.83746

Royal Bank of Scotland Plc v AB: EAT 27 Feb 2020

This was an appeal against the decision at a remedies hearing, following the conclusion that the employee had suffered discrimination on grounds of disability. The employee contended she had suffered a serious psychiatric injury as a result of the unlawful discrimination which prevented her from working for the foreseeable future and which required round the clock care. The Employment Tribunal awarded compensation of pounds 4,670,535 (which the parties are agreed should be altered to pounds 4,724,801 to reflect interest accruing prior to the date of the Employment Tribunal’s Judgment). The employer appealed.
The issues in the appeal concerned the Tribunal’s decisions on (a) whether it was necessary to assess the employee’s capacity to conduct the litigation at the time of the remedies hearing; (b) whether (and to what extent) the psychiatric injury was caused by the discrimination; (c) whether the employee had exaggerated her condition; and (d) the sufficiency of the Tribunal’s reasons for preferring the evidence of one expert witness over another.
The appeal was dismissed, save in respect of one ground of appeal which concerned the Employment Tribunal’s conclusion that no assessment of the employee’s capacity to conduct litigation had been required. The Employment Appeal Tribunal concluded that there was no need to remit the question of assessment to the Employment Tribunal. The failure to assess had not rendered the Employment Tribunal proceedings void, and did not constitute unfairness to the employer in the conduct of the proceedings amounting to an error of law.

Citations:

[2020] UKEAT 0266 – 18 – 2702

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 10 November 2022; Ref: scu.649250

Wollenberg v Global Gaming Ventures (Leeds) Ltd and Others (Practice and Procedure – Postponement or Stay): EAT 31 Jan 2019

PRACTICE AND PROCEDURE – Postponement or stay
In considering an application for a stay, the Employment Tribunal ought to have considered the particular difficulty faced by a Claimant who contended that documents disclosed in related criminal proceedings were relevant to his employment claim, but also was prevented from demonstrating their relevance by the undertaking which he had given to the Crown Court not to use those documents for any other purpose.

Citations:

[2019] UKEAT 0004 – 19 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.642725

Beardshall v Rotherham Metropolitan Borough Council and Others: EAT 26 Oct 2012

EAT PRACTICE AND PROCEDURE
Case management
Postponement or stay
The Employment Tribunal refused to postpone a multi-day hearing in circumstances where the Claimant’s medical evidence indicated that he was genuinely unwell and unfit to attend. There was a history of delay and previous adjournments. Cases relating to decisions on adjournment applications and to the need to ensure a fair hearing reviewed. The ET was found to have erred and the appeal was allowed.

Judges:

Cox J

Citations:

[2012] UKEAT 0073 – 12 – 2610

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466564

O’Hanlon v Post Office Ltd: EAT 15 Oct 2012

EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
The Employment Tribunal erred in deciding that the unfair procedure did not matter because it related to matters, which the ET concluded, by a process of itself defining the reason for dismissal as opposed to considering the Respondent’s reason, were not a significant part of the reason for dismissal.

Judges:

Hand QC J

Citations:

[2012] UKEAT 0202 – 12 – 1510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466567

Dutton v Jones (T/A Llandow Metals): EAT 23 Oct 2012

EAT Redundancy – Short-Time Working
The Employment Judge erred in respect of both ‘the calculation date’ and the amount of ‘a week’s pay’. ‘The calculation date’ should have been that stipulated by section 226(5) and (6) and not section 226(4), which was the date used by the Employment Judge. ‘A week’s pay’, where there is short-time working on ‘the calculation date’ should be that provided for by the original contract of employment, notwithstanding the short-time working.

Judges:

Hand QC J

Citations:

[2012] UKEAT 0236 – 12 – 2310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466565

Shumba and Others v Park Cakes Ltd: EAT 28 Nov 2012

EAT REDUNDANCY – Contractual scheme
It was the Claimants’ case – and the Claimants adduced evidence – that enhanced redundancy payments were made under a scheme without exception for a substantial period while the Respondent was part of the Northern Foods Group. The Tribunal said that it was ‘unable to infer’ that such payments were made without exception. This finding was significant to its assessment that there was no contractual term entitling the Claimants to such payments (see Duke v Reliance Systems Ltd [1982] IRLR 347; Quinn v Calder Industrial Materials [1996] IRLR 12; and Albion Automotive Limited v Walker [2002] EWCA Civ 94). HELD: (By a majority) There was no rational basis for declining to accept the Claimants’ case that enhanced redundancy payments were made without exception for a substantial period while the Respondent was part of the Northern Foods Group. Above cases considered; appeal allowed and claims remitted for reconsideration by a freshly constituted Tribunal.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0219 – 11 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Park Cakes Ltd v Shumba and Others CA 31-Jul-2013
. .
Cited – Davies v London Borough of Haringey QBD 17-Oct-2014
The claimant had been employed as a teaching assistant. She came to work with the union, eventually being released from her work full time to undertake the role within the union. The defendant suspended the claimant from her role for alleged . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 November 2022; Ref: scu.466570

Kabemba v ISS Eaton Ltd and Another: EAT 26 Oct 2012

EAT RACE DISCRIMINATION- Direct
The Employment Tribunal failed to look at the factual findings overall in determining a complaint of direct race discrimination. Having done so, this Employment Appeal Tribunal was satisfied that the ET’s decision to dismiss that complaint was plainly and unarguably correct. Consequently the appeal was dismissed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0584 – 11 – 2610

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.466566

Kirkham v Outward Housing Ltd: EAT 26 Nov 2012

EAT PRACTICE AND PROCEDURE – Postponement or stay
C had asked for a case to be transferred nearer to his home address. This request was based on his wife’s condition – he said he needed to care for her throughout most of the day. This request was rejected as unsupported by medical evidence. 6 days prior to a PHR (arranged some time previously) to consider jurisdiction (on time grounds) C asked for a postponement; two days later he supplied a medical report, redacted, which probably related to his partner’s condition. His request for postponement was rejected by an EJ without reference to the request for transfer (which would have rendered the postponement probably unnecessary) and the medical report.
Held: A discretion of this sort would rarely be subject to successful appeal, unless Wednesbury grounds applied. Here, they did, since a relevant consideration had not been taken into account. The case had been due to start on the day of the appeal: the next date it was listed was in two days time, and the question of venue and postponement would be remitted to the EJ for reconsideration at that hearing. C could attend (as he had offered) by telephone.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 1919 – 12 – 2611

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466568

SPS Technologies Ltd v Chughtai: EAT 3 Dec 2012

EAT UNFAIR DISMISSAL-Reasonableness of dismissal – Majority lay members of ET substituted their view for that of the employer in this case of admitted (serious) misconduct. Finding of unfair dismissal set aside. Had it stood, a finding of 100 per cent contribution and a similar Polkey deduction would have followed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0204 – 12 – 0312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466574

Webber v NHS Direct: EAT 30 Nov 2012

EAT UNLAWFUL DEDUCTION FROM WAGES
The point in issue on the Claimant’s appeal was the correct construction of her contract of employment, providing for pay protection following a reorganisation and her redeployment to a lower salary post. The Tribunal had to determine the correct reference period of earnings for the relevant calculation. The words ‘three months immediately preceding the first day of employment in the new post’ meant that the last day of that reference period was the day before the Claimant’s first day of employment in the new Band 6 post. The Tribunal’s decision, that the reference period was the three previous, completed calendar months for which the Claimant was paid, was held to be in error. The appeal was allowed.
The Respondent’s cross appeal, that the judge erred in holding that these payments were ‘wages’ under s.27(1) ERA, was dismissed. The argument that they were exempt under s.27(2) as amounting to ‘compensation for loss of office’ failed. The payments made to the Claimant pursuant to the pay protection policy were held to be payments referable to her obligation to render her services under her contract of employment.

Judges:

Cox J

Citations:

[2012] UKEAT 0627 – 11 – 3011

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466572

Brewster, Re Judicial Review: QBNI 9 Nov 2012

The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of her co-habiting partner. She argued that the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility for a survivor’s pension under the 2009 regulations constitutes unlawful discrimination contrary to article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), when read in conjunction with article 1 of the First Protocol (A1P1) to ECHR.
Held: The court declared that the requirement of nomination of a cohabiting partner in the 2009 scheme was not compatible with article 14 ECHR read together with A1P1, and quashed the decision of NILGOSC by which it had declined to pay the appellant a survivor’s pension.
The nomination requirement was ‘an instrument of disentitlement’ in relation to unmarried partners and that whilst the impugned regulations pursued a legitimate aim, there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

Judges:

Treacy J

Citations:

[2012] NIQB 85

Links:

Bailii

Statutes:

Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009, European Convention on Human Rights 14

Jurisdiction:

Northern Ireland

Cited by:

Appeal from – Brewster v Northern Ireland Local Government Officers’ Superannuation Committee CANI 1-Oct-2013
Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the . .
At First Instance – Brewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
Lists of cited by and citing cases may be incomplete.

Employment, Family, Financial Services, Human Rights

Updated: 09 November 2022; Ref: scu.466481

Kulkarni v NHS Education Scotland and Another: EAT 16 Oct 2012

EAT Race Discrimination : Discrimination. Consultant surgeon’s complaint of discrimination based on the fact that he had not had a trainee allocated to him for five years. ‘Qualifications body’ – Equality Act 2010 ss 53 and 54. Appeal by consultant surgeon against Tribunal’s determination that NHS Education Scotland (whose principal objective was to provide education services), was not a qualifications body to whom the provisions of EA 2010 applied, dismissed.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0031 – 12 – 1610

Links:

Bailii

Statutes:

Equality Act 2010 53 54

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.466337

London Borough of Islington v Bannon and Another: EAT 25 Sep 2012

EAT Transfer of Undertakings : Transfer
Islington was not able to effect its intended service provision change from CSV to Action for Children due concerns by the latter over the Claimant’ disciplinary record with CSV. At the last minute it took in-house the discharge of its statutory duties under the Children Act. The Employment Judge correctly found there was a service provision change. The appeal by Islington was dismissed and a hearing of the Claimant’s unfair dismissal case ordered.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0221 – 12 – 2509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466335

White v Plymouth City Council: EAT 18 Oct 2012

EAT STRIKE-0UT WITHOUT HEARING EVIDENCE
An employer dismissed an employee from his job as a family support worker after learning that a District Judge hearing a case relating to contact with children had found that during a contact session the claimant had assaulted the child’s father following an altercation between them. This did not occur in the course of the Claimant’s employment, but when he was acting in a private capacity. The Respondent asserted this as a reason for dismissal (though on a fair reading of the ET3, it may rather have been that it thought the Claimant to have a propensity for violence). The EJ struck out the claim as having no reasonable prospect of success, on the basis that it was entitled without more to rely on the findings of the District Judge. He heard no evidence before ruling. To do so was held an error of law, given the approach to strike out which relevant authority demands (none of which was referred to by the Judge), and given that there were issues as to background facts and whether the employer had reached its decision based on the events of the contact session on its own, or only when taken together with other material which (it was to be suggested) did not on its facts support the decision.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0174 – 12 – 1810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466341

Rowe v Halsall (T/A Malvern Nursing Home): EAT 10 Oct 2012

EAT Practice and Procedure : Case Management – Disposal of appeal including remission
The Claimant at a rule 3 hearing refused to follow the court’s directions and walked out. Her application was dismissed under rule 26. It anyway would have no prospect of success and her conduct amounted to an abuse of the process of the EAT, so the case would have been dismissed under rule 3.

Judges:

McMullen QC

Citations:

[2012] UKEAT 0084 – 12 – 1010

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466340

Ministry of Justice v Parry: EAT 14 Nov 2012

EAT RIGHT TO REPRESENTATION, APPROACH TO POLKEY
TRIBUNALS MAKING FINDINGS FOR WHICH THERE IS NO EVIDENCE
The Appellant employer raised five Grounds of Appeal against a decision that a dismissal was unfair, on each of which it succeeded. The principal ground for dismissal upon which the Tribunal relied had no evidence to support it. Further and separately, there was insufficient material to show that the facts here fell within an exceptional class of case, namely one in which the decision to dismiss from employment was also a decision which created a legal barrier to the Claimant working again as a Probate Register, such that Art.6 ECHR guaranteed a right of legal representation at a disciplinary hearing. Further and separately, the Tribunal could not assume without careful consideration that it would necessarily be unfair for there to be no legal representation even if the decision to dismiss did create such a legal barrier. Next, the Tribunal approached Polkey by applying the wrong legal test (balance of probability, not sliding scale of chance), and finally took an erroneous approach to identifying whether the employee had been guilty of gross misconduct, since it did not properly consider whether she had been in repudiatory breach – the ‘last straw’ doctrine applied as much to an employer as an employee, such that the fact of further misconduct should have been seen as repudiatory in the light of an unexpired final written warning.
Appeal allowed: case remitted to a fresh Tribunal.
Observations about whether a passage in Harvey re Polkey might be capable of misleading.
Langstaff P J said: ‘Surprisingly for a conduct dismissal, the analysis by the Tribunal did not address in turn the issues to which case law has established a Tribunal should pay regard: whether the employer had a genuine belief that the employee was guilty of the misconduct alleged; whether that was based on reasonable grounds; after a reasonable investigation; and whether the decision to dismiss was within the range of reasonable responses open to an employer in respect of the misconduct.’

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0068 – 12 – 1411

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G, Regina (on The Application of) v X School SC 29-Jun-2011
The claimant was employed as a teaching assistant. He was suspended after allegations of sexual misbehaviour with boy at the school. He refused to take part in the disciplinary proceedings until the police investigation was concluded. A decision was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 November 2022; Ref: scu.466343

Nottingham City Transport Ltd v Harvey: EAT 5 Oct 2012

EAT Disability Discrimination: Reasonable Adjustments – Employee unfairly dismissed, because the employer did not conduct a reasonable investigation nor consider mitigating circumstances when disciplining a disabled employee. It also considered a claim for failure to make reasonable adjustments where the employee had a disability. It thought the PCP (provision, criterion or practice) was the application of the employer’s disciplinary procedures, which would reasonably have been adjusted by investigating reasonably and considering personal mitigation arising out of disability, and not dismissing him. It was conceded on his behalf that there was no evidence before the ET that the employer’s practice was to ignore mitigation or to fail to carry out a reasonable investigation. The ET erred in identifying as a ‘practice’ that which was not, and in failing to address the questions in Rowan.
Appeal allowed. The matter was remitted because the employee had put forward possible PCPs that the ET had not resolved, given its (erroneous) view that the application of a flawed disciplinary procedure on the one occasion relating to the Claimant could qualify: the ET needed to resolve whether they did give rise to liability.
Langstaff J said: ‘It is not sufficient merely to identify that an employee has been disadvantaged, in the sense of badly treated, and to conclude that if he had not been disabled, he would not have suffered; that would be to leave out of account the requirement to identify a PCP. Section 4A (1) provides that there must be a causative link between the PCP and the disadvantage. The substantial disadvantage must arise out of the PCP.’

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0032 – 12 – 0510, [2013] Eq LR 4

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Firstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.466339

Circle Anglia Ltd v Simons: EAT 16 Oct 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – Contributory fault
The majority of the Employment Tribunal, the Employment Judge dissenting, found the Respondent liable for the unfair dismissal for misconduct of the Claimant, but reduced his compensation by 55%. The EAT would not intervene once a correct self direction was given and the facts found, given the weight of Court of Appeal authority against such a step. The assessment of contributory fault is for the Employment Tribunal: Hollier v Plysu applied.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0183 – 12 – 1610

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Hollier v Plysu CA 1983
The Tribunal may reduce any compensatory award by such proportion as it considers just and equitable. A Tribunal’s decision on this question is ‘so obviously a matter of impression, opinion, and discretion, that there must be a plain error of law or . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 November 2022; Ref: scu.466336

British Telecommunications Plc v Adamson and Others: EAT 27 Sep 2012

EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal
Pensions and other terms
On a service provision change to which TUPE applied, the Employment Tribunal found, following a correct self direction on the law, the reason for the dismissal of the transferor’s staff was redundancy and the transferee was liable. This finding of fact would not be disturbed. It was entitled to award compensation to include loss of pension since it heard evidence that incoming employees’ benefits were customarily honoured (Regulation 10 otherwise excluding automatic transfer).

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0282 – 12 – 2709

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466334

BAE Systems (Operations) Ltd v Paterson: EAT 27 Jun 2012

EAT Transfer of Undertakings : Service Provision Change
Practice and Procedure – Amendment
An Employment Judge raised the question whether there might have been a service provision change in April 2011 after all the evidence had been heard by reference to an alleged change in June 2011, submissions had been made, and he had already been considering the case for some days. The representative for the Respondent indicated that fresh and further evidence would be needed to deal with the point. No opportunity was given for this to happen. Accordingly, there had been a procedural irregularity which justified quashing the decision and remission for re-hearing.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0003 – 12 – 2706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 November 2022; Ref: scu.466333

Institute of Civil Servants v Secretary of State for Defence: 1987

The Union complained on the proposed transfer of dockyards as to the consultation offered.
Held: The transferor of a business entity need only inform its employees of those measures which he actually envisages will be implemented. It is open to either employer to consult voluntarily. The legislative purpose of the provision of information is to facilitate proper and effective consultation.

Judges:

Millett J

Citations:

[1987] IRLR 373

Jurisdiction:

England and Wales

Cited by:

Cited – Royal Mail Group Ltd v Communication Workers Union CA 14-Oct-2009
Royal Mail had transferred some of its businesses. The union complained that the company’s explanation of the effect of the transfer to its members was incorrect in law. The EAT had found that the employer need only tell the employee of its honestly . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 November 2022; Ref: scu.376202

Seide v Gillette Industries Ltd: 1980

The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined.
Held: The fact that but for the earlier harassment he would not have been in the department where the problem arose did not mean that the action of which he complained was taken on racial grounds. Discrimination against a Jew might be directed at his religion rather than his race.

Citations:

[1980] IRLR 427

Jurisdiction:

England and Wales

Cited by:

Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.374666

Grundy v Willis: 1976

Phillips J said: ‘So the duty of a tribunal is to take into account the reason . . and all the other facts and circumstances known to the employer, and ask whether for that reason, and in those circumstances, having regard to equity and the substantial merits of the case, the employer acted reasonably in treating it as a sufficient reason for dismissing the employee. And it has, of course, to judge that in the capacity of what has been described as an ‘industrial jury’.

Judges:

Phillips J

Citations:

[1976] ICR 323

Jurisdiction:

England and Wales

Cited by:

Approved – George Whiley Ltd v Anderson 1-Jul-1976
. .
Cited – Haddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 November 2022; Ref: scu.374400

Sanders v Parry: 1967

An assistant employed by a sole practitioner solicitor undertook as part of his duties work brought in by an important client. The client having said that if he left to set up on his own account he would transfer his business, the assistant handed in his notice and did so. And the client did follow him. The sole practitioner sued for breach of the implied terms of the contract of employment that the assistant would serve him with good faith and fidelity. The defence was that it was the client who had initiated the arrangement.
Held: It did not matter. Even were it to be so, the assistant having accepted the client’s offer whilst he was still employed by another and not having informed his employer of the offer was in breach.
Havers J said: ‘Now in my view there was a duty on the defendant at all times during the substance of the (employment) agreement to protect his master’s interests, especially to do his best to retain Mr Tully as a client for his master …. I am satisfied that in accepting the offer, by such conduct the defendant was guilty of breach of duty in regard to the agreement implied therein by law that the defendant would serve the plaintiff with good faith and fidelity.’ and ‘In my view it was the duty of the defendant to have reported this dissatisfaction of the secretary to his principal to give him an opportunity, as far as he could, to satisfy her. Instead of forwarding his principal’s interests he was concerned only in promoting his own. He made this alternative offer to Mrs Stanford which she accepted and the result of it and the result of that alone was that she left Mr Sanders and joined the defendant. That was in my view a breach of contract’

Judges:

Havers J

Citations:

[1967] 1 WLR 753

Jurisdiction:

England and Wales

Cited by:

Cited – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 09 November 2022; Ref: scu.375144

Brunel University and Another v Webster and Vaseghi: CA 22 May 2007

The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive claims of race discrimination. The claimants asserted that this amounted to victimisation for having pursued the claims, and they first lodged grievances, beginning also claims before the ET before the decisions on the grievances had been announced. The ET made decisions about admission into evidence of the without prejudice discussions, and the grievance reports. Both sides appealed.
Held: The appeal failed. Details of the negotiations had reached other senior members of the University. Did this amount to waiver on the University’s part? They had set up what was stated to be an independent pane hearing an adversarial matter. The University could claim both that the panel was independent and that it was part of the university’s senior management. The University had waived any without prejudice protection as had the claimants: ‘by referring to the ‘without prejudice’ discussions in their ET1s and witness statements, the employees made it plain that they intended, unless prevented, to waive their privilege. By pleading their responses as they did and by attaching the grievance panel’s reports to the ET3s, the University made it plain that it too intended to waive privilege. In our view, bilateral waiver had taken place at the time the ET3s were lodged with the Tribunal office.’

Judges:

Longmore LJ, Smith LJ, Sir Paul Kennedy

Citations:

[2007] EWCA Civ 482, [2007] IRLR 592

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – G Webster v Brunel University EAT 14-Dec-2004
EAT Race Discrimination
Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by . .
See Also – Vaseghi v Brunel University CA 21-Nov-2006
. .
Appeal from – Brunel University and Another v Vaseghi and Webster EAT 16-Oct-2006
EAT Practice and Procedure – Disclosure
Allegations that Claimants had made unwarranted demands in original tribunal proceedings said to be victimisation.
Grievance procedure heard evidence relating . .
See Also – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
See Also – Vaseghi v Brunel University EAT 8-Dec-2004
EAT Race Discrimination / Trade Union Rights>br />The Employment Tribunal incorrectly excluded unconscious discrimination from its consideration, contrary to Nagarajan, and on the s146 claim wrongly concluded . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Chocoladefabriken Lindt and Sprungli AG and another v The Nestle Co Ltd 1978
Megarry V-C said that the mere failure to use the expression ‘without prejudice’ is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Fazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.252504

Atabo v Kings College London and others Newman, Methven, Law: CA 19 Apr 2007

The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of discrimination on the facts. It was therefore wholly unnecessary for the Tribunal artificially to go through the two stage Igen process. I can therefore detect no error of law in the Tribunal’s approach to the burden of proof. ‘

Judges:

Wall LJ

Citations:

[2007] EWCA Civ 324

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.251402

Camelot Group plc v Centaur Communications Limited: CA 23 Oct 1997

An order for a journalist to disclose the name of an employee disclosing his employer’s information, may be made where there was a need to identify a disloyal employee. Here drafts of accounts had been released to embarrass the company. The documents involved were stolen, and a return of them would enable identification of the source of them. Could the section protect the source? A balancing exercise was required, one which would differ from case to case. Here it weighed in favour of disclosure. In this case there remained a threat of further damage from a disloyal senior employee.

Judges:

Lord Justice Schiemann, Lord Justice Thorpe, Lord Justice Mummery

Citations:

Gazette 12-Nov-1997, Times 30-Oct-1997, [1997] EWCA Civ 2554, [1999] QB 124, [1998] 1 All ER 251, [1998] IRLR 80, [1998] 2 WLR 379, [1998] EMLR 1

Links:

Bailii

Statutes:

Contempt of Court Act 1981 10, European Convention on Human Rights Art 10

Jurisdiction:

England and Wales

Citing:

Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .
Appeal from – Camelot Group Plc v Centaur Communications Plc QBD 15-Jul-1997
Human rights law is no aid in protecting a journalist against an order requiring the return of confidential documents, even though this might identify the source of leak. . .

Cited by:

Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Employment, Media, Human Rights

Updated: 09 November 2022; Ref: scu.142953

Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department: CA 23 Jul 1997

The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes liable to B as a joint tortfeasor with C in the tort of deceit practised by C on B on the basis that A and C have a common design to defraud B and A renders assistance to C pursuant to and in furtherance of the common design, does D, A’s employer, become vicariously liable to B, simply because the act of assistance, which is not itself the deceit, is in the course of A’s employment with D? An employer was not liable for the fraudulent acts of his employee during the employment but may be for purposes of fraud by third party.
Hobhouse LJ said: ‘Mere assistance, even knowing assistance, does not suffice to make the ‘secondary’ party liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort . . ; or he must have joined in the common design pursuant to which the tort was committed’

Judges:

Stuart-Smith LJ, Hobhouse LJ

Citations:

Times 04-Aug-1997, Gazette 10-Sep-1997, [1998] 1 Lloyd’s Rep 19, [1997] EWCA Civ 2165

Jurisdiction:

England and Wales

Citing:

Appeal from – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department 1996
The Export Credit Guarantee Department was not liable to the Bank for the loss which the Bank sustained due to the fraud of one of its customers in which an employee was involved. . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .

Cited by:

Appeal from – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
Cited – AbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Twentieth Century Fox Film Corporation and Another v Newzbin Ltd ChD 29-Mar-2010
The defendant operated a web-site providing a search facility of the Usenet news system which allowed its users to locate copies of films online for downloading. The claimant said this was an infringement of its copyrights.
Held: The defendant . .
Cited – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Cited – Fish and Fish Ltd v Sea Shepherd UK and Another AdCt 25-Jun-2012
The claimant company was engaged in tuna fish culture off shore to Malta. The defendant ship was owned by a charity which campaigned against breaches of animal preservation conventions. Fish were being transporting live blue fin tuna in towed . .
Cited – Fish and Fish Ltd v Sea Shepherd Uk and Others CA 16-May-2013
The claimant company sought damages after their transport of live tuna was attacked by a protest group. They now appealed against a decision that the company owning the attacking ship was not liable as a joint tortfeasor.
Held: The appeal was . .
Cited – Sea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .
Lists of cited by and citing cases may be incomplete.

Employment, Vicarious Liability, Torts – Other, Banking

Updated: 09 November 2022; Ref: scu.80791

Turner v East Midlands Trains Ltd: CA 16 Nov 2012

The employee, a train ticket conductor, was accused without direct evidence of manipulating her machine to produce false tickets which she was then said to have sold.
Held: Elias LJ said that the Tribunal: ‘has to ask whether the employer acted within the range of reasonable responses open to a reasonable employer. It is not for the Tribunal to substitute its own view for that of the reasonable employer. That principle has been enunciated in the line of cases beginning with British Home Stores v Burchell . . and affirmed in cases such as Post Office v Foley [2000] IRLR 827, Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23, London Ambulance Service NHS Trust v Small [2009] IRLR 563 and, most recently, Orr v Milton Keynes Council [2011] IRLR 317.’
The court rejected a submission that Burchell must be reconsidered allowing the ET to act as a primary decision maker on an employee’s dismissal.

Judges:

Maurice Kay VP, Lord Justice Elias and Sir Stephen Sedley

Citations:

[2012] EWCA Civ 1470, [2012] WLR(D) 353, [2013] IRLR 107, [2013] ICR 525

Links:

Bailii, Gazette

Jurisdiction:

England and Wales

Citing:

Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .

Cited by:

Cited – Clarence High School and Another v Boardman CA 15-Mar-2013
The claimant school teacher had been dismissed, after a finding that she had assaulted a pupil. She denied the assualt.
Held: The School’s appeal against the decision of the EAT to re-instate the claim of unfair dismissal succeeded. The EAT . .
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 06 November 2022; Ref: scu.465880

Guildprime Specialists Contractors Ltd v Knight: EAT 24 Sep 2012

EAT UNLAWFUL DEDUCTION FROM WAGES
At the hearing of the Claimant’s claim of unauthorised deductions, taken from his payments when he was made redundant in order to repay his car loan, the Employment Tribunal raised with the employer’s counsel the provisions of the Consumer Credit Act 1974. It then ruled upon it without giving counsel the time she sought to research the point. The point itself had no merit as the Employment Tribunal has no jurisdiction over such agreements, that being exclusively in the County Court. The Tribunal ought to have found that the loan agreement was made in writing and so by Employment Rights Act 1996 section 13 could not give rise to a claim under section 23. Alternatively it was a deduction to recoup overpayment of wages. A loan is not wages.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0562 – 11 – 2409

Links:

Bailii

Statutes:

Consumer Credit Act 1974, Employment Rights Act 1996 13 23

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465816

Arnold Clark Automobiles Ltd v Middleton: EAT 22 May 2012

EAT Practice and procedure. Whether competent for Employment Tribunal to call its own witnesses despite opposition from both parties. Tribunal’s decision to do so set aside on appeal. Appeal against witness order upheld.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0011 – 12 – 2205, [2012] ICR D36

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465811

Ashby v JJB Sports Plc: EAT 18 Sep 2012

EAT Redundancy : Collective Consultation and Information – Suitable alternative employment
The Tribunal did not err in law in concluding that the Respondent dismissed the Claimant fairly, notwithstanding that it did not inform him of or interview him for a new post of HR director. Polkey v AE Dayton Services Ltd [1988] AC 344 and Duffy v Yeomans and Partners [1995] ICR 1 considered and applied.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0114 – 12 – 1809

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465813

Novak v Phones 4U Ltd: EAT 14 Sep 2012

EAT Race Discrimination : Continuing Act – The Claimant complained of entries made on Facebook by work colleagues, said to be acts of discrimination on the grounds of disability and nationality. He was found to be out of time. The Employment Judge’s decision at a PHR in part was reversed. The Employment Judge erred in holding the entries were not linked by subject matter, people and time, so as to create a continuing act. Remitted to a full merits hearing.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0279 – 12 – 1409

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pugh v National Assembly for Wales EAT 26-Sep-2006
EAT The ET dismissed as premature the Claimant”s application for disability discrimination because the application was made less than 28 days after the Claimant”s grievance had been raised in a letter dated . .
Cited – Afolabi v Southwark London Borough Council CA 24-Jan-2003
The claimant applied for leave to bring an action for race discrimination nine years after the acts complained of. Leave was granted. The respondent said the tribunal should have heard the complaint first before deciding to extend time.
Held: . .
Cited – Virdi v Commisioner of Police of the Metropolis, Central Police Training and Development Authority (Centrex) EAT 6-Oct-2006
EAT The appellant lodged claims under the Race Relations Act 1976 against the First Respondent. He contended they were in time. The ET held that they had been lodged a day out of time and refused to extend time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465817

LTRS Estates Ltd (T/A Orwells) v Hamilton: EAT 9 Oct 2012

EAT Unlawful Deduction From Wages : Appeal allowed from the Judgment of Employment Judge John Warren, whereby he held that there had been an unlawful deduction from the wages of a restaurant manager by not paying him in respect of Bank Holidays and overtime, because of a paucity of factual findings and analysis. Remitted for a complete re-hearing before a different Employment Judge.

Judges:

Hand QC J

Citations:

[2012] UKEAT 0230 – 12 – 0910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465822

Drive Assist UK Ltd v Alderson: EAT 21 Sep 2012

EAT Redundancy – Redundancy compensation – amount of Polkey deduction
The Tribunal reached its conclusion as to the amount of a Polkey deduction by applying an arithmetical chance without considering material evidence specific to the Claimant’s position: in so doing it erred in law. However, albeit by the wrong route, it reached a conclusion which was plainly of the correct order: the appeal would be dismissed.

Judges:

David Richardson J

Citations:

[2012] UKEAT 016 – 12 – 2109, [2012] UKEAT 0176 – 12 – 2109

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465814

Hair Division Ltd v Macmillan: EAT 12 Oct 2012

EAT Sex Discrimination : Direct
Inferring discrimination – Discrimination. Pregnancy. Statutory Maternity Leave/Pay. Tribunal erred in approaching employee’s allegation of discrimination on the basis that employer had wrongly denied that she was entitled to maternity leave/pay when (a) they had no jurisdiction to determine a dispute over such entitlement, and (b) even if they had, they had plainly erred in their conclusion that she had satisfied the notification requirements of the Maternity and Parental Leave Regulations 1999. Tribunal had also failed to address issue of whether or not the reason why the employee was dismissed was simply because of her long term absence from work. Appeal upheld and case remitted to a freshly constituted Employment Tribunal.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0033 – 12 – 1210

Links:

Bailii

Statutes:

Maternity and Parental Leave Regulations 1999

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465820

Eastman v Tesco Stores Ltd: EAT 5 Oct 2012

EAT Practice and Procedure : Striking-Out or Dismissal – Unfair dismissal claim struck out at PHR at which Employment Judge heard evidence from Claimant and Respondent and saw documentary evidence. Findings of fact made adverse to Claimant’s case, justifying strike-out order. No remaining issues of fact (c.f. Balls).

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0143 – 12 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465819

Liddell’s Coaches v Cook and Others: EAT 9 Oct 2012

EAT Transfer of Undertakings : Service Provision Change – TUPE. Whether Tribunal entitled to conclude that reg 3(3)(a)(ii) applied where client contract was to provide transport for schoolchildren during a limited period when they were ‘decanted’ from their school. Application of the phrase ‘single specific event or task of short term duration’. Appeal rejected. Tribunal had not erred in finding that TUPE did not apply.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0025 – 12 – 0910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465821

UK Mail Ltd v Creasey: EAT 26 Sep 2012

EAT JURISDICTIONAL POINTS – Worker, employee or neither
As a matter of construction of the contract, the Claimant was not required to perform work personally since he had an unfettered right to send others, provided they met the employer’s conditions as to suitability: Premier Groundworks Ltd v Jozsa applied.
There is no reason to further taxonomise borderline employment cases: Westwood [2012] EWCA Civ 1005, paragraph 1; Clyde [2012] EWCA Civ 1207.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0195 – 12 – 2609

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Premier Groundworks Ltd v Jozsa EAT 17-Mar-2009
EAT WORKING TIME REGULATIONS: Worker / Holiday Pay
Mr Victor Jozsa (‘the claimant’) entered into a written agreement dated 1 January 2006 with Premier Groundworks Ltd (‘the respondent’) to provide groundwork . .
Cited – The Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .
Cited – L’Estrange v F Graucob Limited CA 1934
The company’s order form contained a clause providing them with complete exemption from liability: ‘Any express or implied, condition, statement of warranty, statutory or otherwise is expressly excluded’.
Held: If a party signs a written . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.465818

Fairstar Heavy Transport Nv v Adkins and Another: TCC 1 Nov 2012

The claimant had obtained a without notice order restraining the first defendant, its former senior consultant from deleting or otherwise interfering with emails from his time with the company. The defendant said that there had been no emergency warranting the without notice order, and that no proprietary interest existed in such material.

Judges:

Edwards-Stuart J

Citations:

[2012] 2 CLC 795, [2012] EWHC 2952 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Fairstar Heavy Transport Nv v Adkins TCC 23-Nov-2012
. .
At TCC – Fairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
Lists of cited by and citing cases may be incomplete.

Information, Employment, Litigation Practice

Updated: 06 November 2022; Ref: scu.465740

Redfearn v The United Kingdom: ECHR 6 Nov 2012

The applicant alleged that his rights had been infringed by his dismissal from his post as driver transporting children and adults with physical and/or mental disabilities. He had stood for election as a candidate for the British National Party, a party then allowing only white nationals as members. The majority of his customers and a substantial proportion of his co-workers were if Asian origin. A trades union had asked for his dismissal. On election he was summarily dismissed. He alleged race discrimination. His dismissal had been upheld by the Court of Appeal.
Held: UK law was deficit in not allowing a potential claim based on discrimination for one’s political belief. The applicant’s right to freedom of association had been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs in that his: ‘right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs.’

Judges:

Lech Garlicki, P

Citations:

47335/06 – HEJUD, [2012] ECHR 1878, 33 BHRC 713, [2013] 3 Costs LO 402, (2013) 57 EHRR 2, [2013] IRLR 51

Links:

Bailii

Statutes:

European Convention on Human Rights, Race Relations Act 1976

Citing:

At EAT – 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 . .
Appeal from – Serco Ltd v Redfearn CA 25-May-2006
The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices . .
Statement of facts – Redfearn v The United Kingdom ECHR 16-Jan-2009
Statement of facts . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 06 November 2022; Ref: scu.465590

Kingston Upon Hull City Council v Schofield and Others: EAT 6 Nov 2012

EAT UNLAWFUL DEDUCTION FROM WAGES
The Claimants claimed that the Respondent had wrongly evaluated their jobs under the applicable job evaluation scheme. They contended that properly evaluated they would have been awarded higher scores entitling them to a higher Grade, (Grade 7 or 8). They brought claims for deduction from wages under the Employment Rights Act 1996 section 13. The Claimants’ claims were for damages not for sums which were ascertained or ascertainable. The exercise of job evaluation or assessing whether or not the job evaluation had been carried out properly was not the determination of an issue of fact nor was it one which the Employment Tribunal has jurisdiction to undertake in determining a claim under ERA section 13. Coors Brewers Ltd v Adcock and others [2007] IRLR 440 applied.
Properly directing himself the only decision open to the Employment Judge was that the ET had no jurisdiction under ERA section 13 to determine the Claimants’ claims. Appeal allowed and claims of unlawful deduction from wages dismissed.

Judges:

Slade DBE J

Citations:

[2012] UKEAT 0616 – 11 – 0611

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465564

Mather v Devine and Others (Bramhall Park Medical Centre): EAT 23 Aug 2012

EAT SEX DISCRIMINATION – Pregnancy and discrimination
HARASSMENT – Conduct
The Employment Tribunal did not address all the Claimant’s claims for pregnancy and sex discrimination and these were remitted to a fresh Tribunal, in part because the Judgment was not unanimous. Other grounds of appeal were dismissed and the Judgment upheld.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0119 – 12 – 2308

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465535

Olatunji v Network Rail Infrastructure Ltd: EAT 10 Sep 2012

EAT Practice and Procedure : Costs – The Employment Tribunal struck out the Claimant’s case after she did not appear. It ordered her to show cause why she should not pay andpound;10,000 costs. She submitted details of her ability to pay. The Employment Judge held without reasons that she had failed to show cause. This was an error. On the Claimant’s appeal, the Respondent made no submission and the parties consented to the EAT deciding the issue without remission. andpound;750 costs ordered.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0553 – 11 – 1009

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 06 November 2022; Ref: scu.465540

Norland Managed Services Ltd v L R Hastick: EAT 14 Sep 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Tribunal did not apply the objective test of the reasonable employer – the ‘range of reasonable responses’ test – when considering whether the employer operated a fair procedure. In particular the Tribunal did not address itself to this test when considering whether the employer should have required someone other than the employee’s line manager to chair the disciplinary proceedings against him.
The Tribunal did not start from the findings of the employer when considering whether dismissal was a reasonable sanction. It discounted from the employer’s findings even though (1) it had found the employer to have carried out a reasonable investigation and (2) the employer’s findings were patently reasonable in the light of the investigation.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0005 – 12 – 1409

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465539

Tamang and Another v Act Security Ltd and Another: EAT 31 Aug 2012

EAT PRACTICE AND PROCEDURE
Compromise
Disposal of appeal including remission
The Claimants made a compromise agreement with Reliance, one of three Respondents in a TUPE claim. The claim was against the Respondents jointly and severally for breach of the consultation provisions and against the transferee for unfair dismissal and wrongful dismissal. The Employment Tribunal wrongly construed the agreement with Reliance as a release of all three tortfeasors for it related only to Reliance and by implication not to the others. On its true construction it was a covenant not to sue Reliance and not a release of all Respondents. The case was remitted for hearing as against the other two Respondents who were given permission (the Claimants not objecting) to enter responses and to be heard, hitherto debarred.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0046 – 12 – 3108

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465536

Sussex Partnership NHS Foundation Trust v Norris: EAT 30 Oct 2012

EAT Disability Discrimination – Disability – The effect of an impairment may be direct or indirect. However, the majority of the Employment Tribunal erred in holding that the deduced effect of the Claimant’s impairment for the purpose of Equality Act 2010 Schedule 1 Part 1 paragraph 5 was substantial and adverse to her ability to carry out day- to- day activities when the evidence established that the impairment, Selective IgA, caused an increase in susceptibility to infection but did not support a conclusion that increased rate of infection had such an effect. Further the evidence did not support the conclusion of the majority of the ET that substantial adverse effects caused by the impairment in the past were likely to recur.
Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 considered.
Appeal allowed. Decision of the Employment Tribunal that the Claimant was a disabled person at the material time, October 2010, set aside. The issue of whether the Claimant was a disabled person at the material time, remitted for re-hearing before a differently constituted Employment Tribunal.

Judges:

Slade J

Citations:

[2012] UKEAT 0031 – 12 – 3010

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Considered – Swift v Chief Constable of Wiltshire Constabulary EAT 25-Nov-2003
The EAT upheld the decision of an Employment Tribunal that the claimant had not shown that her disability was likely to recur. However: ‘In considering whether during a particular period in the past, a substantial adverse effect was likely to recur . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465542

Network Rail Infrastructure Ltd v Mockler: EAT 11 Jul 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal did not err in finding the Respondent unfairly dismissed the Claimant for misconduct in failing to observe trackside safety rules. The EAT would not interfere with its findings: Fuller v London Borough of Brent [2011] IRLR 414, Bowater v Northwest London Hospitals NHS Trust [2001] IRLR 331, Salford Royal NHS Foundation Trust v Rolden [2010] IRLR 721, per Elias LJ, Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, per Mummery LJ, London Ambulance Service NHS Trust v Small [2009] IRLR 563, per Mummery LJ, Orr v Milton Keynes Council [2011] EWCA Civ 62, Oso v Newham University NHS Trust [2011] EWCA Civ 1425 and Henderson v LB Hackney [2011] EWCA Civ 1518. The principles have most recently and authoritatively been rationalised in Arriva Trains v Conant UKEAT2011 0043/11 at paras 23-34, in Crawford v Suffolk Mental Health Trust by Elias LJ [2012] EWCA 138 and Graham v DWP [2012] EWCA Civ 903 applied.
The Employment Tribunal did not cite the statute or any authority, so creating a risk of error, but it plainly upheld the employer on BHS v Burchell, yet finding permissibly that the decision to dismiss was outside the range of reasonable responses.
It gave no reasons for finding 50% contribution: Greenwood v NWF Retail Ltd UKEAT/0409/09. This is remitted to the same Employment Tribunal to take the decision again and give reasons.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0531 – 11 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465534

X County Council and Another v D and Another: EAT 23 Oct 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal. Drama teachers dismissed in relation to permitting GCSE students to stage a performance depicting sexual abuse including rape, sexual intercourse, sexual assault, oral sex, masturbation, and group sex. Tribunal’s finding of unfair dismissal held to be perverse; the Tribunal had, in finding that employers should not have accepted advice of the local authority’s safeguarding officer regarding the potential risk to students, failed to take account of a relevant factor (his prior relevant experience) and took account of an irrelevant factor (the reaction, at the time, of members of the audience and some of the students who had taken part in the performance). They had failed, when considering whether or not there had been a reasonable investigation, to have regard to all relevant factors. There were also indications that the Tribunal had adopted a substitution mindset. Appeal upheld and claims remitted to a freshly constituted Employment Tribunal.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0155 – 12 – 2310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465543

Welsh v Bendel and Another: EAT 29 Jun 2012

EAT UNFAIR DISMISSAL
A Respondent to a claim for discrimination applied successfully to an Employment Judge for a further Respondent to be sisted as being primarily liable for the harassment which was said to have occurred. An appeal was not resisted, and was allowed on the basis that Beresford v Sovereign House Estates had earlier decided the issue of principle at EAT level, and the Appeal Tribunal was not persuaded (nor was it argued) that Beresford was wrongly decided.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0014 – 12 – 2906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465533

Kapadia v London Borough of Lambeth: EAT 27 May 1999

The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Held: The claimant’s appeal succeeded. Peter Clark J said: ‘There was no evidence as to the effect on day-to-day activities in the sense that no evidence was called from friends, family or colleagues. However, there was uncontested medical opinion evidence from the appellant’s General Practitioner and Consultant Clinical Psychologist that he was disabled within the meaning of the Act.’ Whilst it can be possible for a tribunal to reject uncontested medical evidence for good reason, here they had simply disregarded it. That was not acceptable, and this was a case where the EAT could substitute its own decision as to the facts.

Judges:

Peter Clark J

Citations:

[2000] IRLR 699, [1999] UKEAT 1004 – 98 – 2705, (2001) 57 BMLR 170

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 1(1)

Citing:

Cited – Goodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Cited – Hellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
See Also – Kapadia v London Borough of Lambeth EAT 19-Nov-1998
The Tribunal lifted the stay of the claimant’s claim of disability discrimination. . .

Cited by:

Appeal from – Kapadia v Lambeth London Borough Council CA 4-Jul-2000
The claimant asserted disability discrimination, and consented to a medical report for the purpose of the claim. He was then to be obliged to consent to its release to the other party. To order otherwise would be contrary to the need for expeditious . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465546

Whyte v The London Borough of Lewisham: EAT 22 Aug 2012

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL – Compensation
Observations on the withdrawal of allegations of judicial bias.
One point on unfair dismissal compensation and arithmetic merits a full hearing. A pure construction point on the Redeployment Scheme and its relationship to sick pay was dismissed, although not dealt with by the Employment Tribunal, for it had no prospect of success.

Judges:

McMulen QC J

Citations:

[2012] UKEAT 0256 – 12 – 2208

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465537

Howells School v Gerrard: EAT 19 Sep 2012

EAT Unfair Dismissal – Compensation – Polkey deduction – Unfair dismissal. Compensation. Tribunal found it likely that Claimant would not have been dismissed if a fair procedure had been followed and that 20% Polkey deduction appropriate. Tribunal posed itself the question of what would have been the Claimant’s salary if she had been kept on in the Respondent’s employment but failed to answer it despite having made findings in fact which showed it was likely that she would suffer a reduction in salary due to financial constraints being suffered by the Respondent’s business. Award set aside and a figure substituted which took account of the findings in fact regarding what, at the most, the Claimant could have earned. Cross appeal that Tribunal had wrongly applied the Polkey deduction to a separate award for failure to provide a statement of terms and conditions of employment conceded and the figure corrected accordingly.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0079 – 12 – 1909

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 November 2022; Ref: scu.465538

Prix v Secretary of State for Work and Pensions: SC 31 Oct 2012

The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused on the basis that she was not a ‘worker’, and she now appealed.
Held: Neither side of the argument was acte clair, and accordingly the case was referred to the European Court of Justice.
Lady Hale said: ‘Pregnancy is not just a lifestyle choice. Equal treatment encompasses the reasonable response of a working woman to the physical demands and limitations of late pregnancy and childbirth. UK law gives sensible recognition to these, not only for the sake of the mother but also for the sake of her child, by not requiring that she seek or be available for work from 11 weeks before the expected date of confinement until 15 weeks after her pregnancy has ended (whether with a live or a still birth). Excluding a woman who makes that choice from the right of residence which she would have retained had she not become pregnant is, it is argued, direct discrimination on grounds of sex.’

Judges:

Lord Neuberger, President, Lady Hale, Lord Mance, Lord Kerr, Lord Reed

Citations:

[2012] UKSC 49, UKSC 2011/0176

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Directive 2004/38/EC of the European Parliament and Council on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States

Jurisdiction:

England and Wales

Citing:

Appeal from – JS v Secretary of State for Work and Pensions CA 13-Jul-2011
The claimant, a French woman and qualified teacher, now appealed against rejection of her claim for income support, saying that the defendant had failed to comply with the obligations of the European Citizens Directive designed to allow European . .
Cited – DM Levin v Staatssecretaris Van Justitie ECJ 23-Mar-1982
ECJ The concepts of ‘worker’ and ‘activity as an employed person’ define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.
Cited – Kempf v Staatssecretaris Van Justitie ECJ 3-Jun-1986
The term ‘worker’ when used within community legislation should not be interpreted restrictively. . .
Cited – Sylvie Lair v Universitat Hannover ECJ 21-Jun-1988
European law draws a distinction between member state nationals who have not yet entered into an employment relationship in the host member state where they are looking for work and those who are already working in that state or who, having worked . .
Cited – Regina v Immigration Appeal Tribunal, ex parte Antonissen ECJ 26-Feb-1991
ECJ The free movement of workers enshrined in Article 48 of the Treaty entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the . .
Cited – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – Regina v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department ECJ 7-Jul-1992
ECJ The provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community and preclude . .
Cited – Ninni-Orasche v Bundesminister fur Wissenschaft, Verkehr und Kunst ECJ 6-Nov-2003
ECJ Freedom of movement for workers – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of worker – Contract of employment of a short term fixed in advance – Retention of the status of . .
Cited – Georgios Orfanopoulos and Others v Land Baden-Wurttemberg. ECJ 29-Apr-2004
When considering a claim to resist deportation ‘the requirement of the existence of a present threat must, as a general rule, be satisfied at the time of the expulsion.’
Europa On the interpretation of . .
Cited – Metock And Others v Minister for Justice, Equality and Law Reform ECJ 25-Jul-2008
ECJ Directive 2004/38/EC – Right of Union citizens and their family members to move and reside freely in the territory of a Member State – Family members who are nationals of non-member countries – Nationals of . .
At Upper Tribunal – Secretary of State for Work and Pensions v JS UTAA 7-May-2010
The claimant french woman had come to England, working as a teaching assistant. She set out to train as a teacher but became pregnant, and gave up work temporarily. She was refused Income Support. Her appeal was allowed, and the Secretary of State . .
Cited – Johnson v Chief Adjudication Officer ECJ 11-Jul-1991
ECJ 1. Article 2 of Council Directive 79/7/EEC, on the progressive implementation of the principle of equal treatment for men and women in matters of social security, must be interpreted as meaning that the . .
Cited – Patmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
Cited – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Benefits

Updated: 06 November 2022; Ref: scu.465470

Donovan v London Borough of Barking and Dagenham: CA 26 Oct 2012

Renewed application for permission to appeal. The claimant had worked for the respondent with a role in its Housing Developments and Partnerships department, in which by 2006 she became a team leader. In 2009 she brought employment tribunal proceedings against it, complaining of sex and race discrimination, harassment and detriment on the grounds that she had made a protected disclosure.

Judges:

Rimer LJ

Citations:

[2012] EWCA Civ 1375

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465368

Strack v Commission (Staff Regulations): ECJ 15 Mar 2011

ECJ Public service – Officials – Report of annual leave – Article 4 of Annex V of the Statute – Reasons due to exigencies of service – Article 73 of the Statute – Directive 2003/88/EC – Right to paid annual leave – Leave disease.

Citations:

120/07, [2011] EUECJ 120/07

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 06 November 2022; Ref: scu.430725

Luke v Stoke-On-Trent City Council: CA 24 Jul 2007

The employee appealed against a decision rejecting her claim that the employer had made an unlawful deduction from her salary.

Judges:

Browne-Wilkinson J

Citations:

[2007] EWCA Civ 761, [2007] IRLR 777, [2007] ICR 167

Links:

Bailii

Statutes:

Employment Rights Act 1996 13

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .
Cited – Lindsey Beveridge v KLM UK Ltd EAT 16-Feb-2000
EAT The claimant appealed refusal of her claim for unlawful deduction. She had been off sick long term. Her doctor certified her fit to return, and she asked to return, but her employer waited a further six weeks . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.258364

Camden Primary Care Trust v Atchoe: CA 9 May 2007

Appeal against dismissal of claim of unauthorised deduction from wages.

Judges:

Sir Igor Judge P, Moore-Bick LJ, Sir Peter Gibson

Citations:

[2007] EWCA Civ 714

Links:

Bailii

Statutes:

Employment Rights Act 1996 13

Jurisdiction:

England and Wales

Citing:

Appeal from – Camden Primary Care Trust v Atchoe EAT 22-Aug-2006
EAT Unlawful Deduction from Wages – Ready, Willing and Able to Work
As the Employment Tribunal had found that the Respondent had the right to take the Claimant off stand-by duties on health and safety . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.258295

Adams and others v Lancashire County Council Bet Catering Services Limited: CA 15 May 1997

The acquired rights directive does not protect pension rights which might be acquired after the transfer of an undertaking. It can only safeguard rights existing at the time of the transfer.

Citations:

Times 19-May-1997, [1997] EWCA Civ 1699, [1997] 3 CMLR 79, [1997] ICR 834, [1997] IRLR 436, [1997] Pens LR 145, [1998] OPLR 119

Links:

Bailii

Statutes:

Council Directive 77/187/EEC

Jurisdiction:

England and Wales

Employment, European

Updated: 06 November 2022; Ref: scu.142095

The Post Office v Lewis: CA 22 Apr 1997

The claimant had been found 100% responsible for his unfair dismissal. The Employment Appeal Tribunal had reversed that decision, and the respondent appealed that decision in turn. The claimant was a postman, and his employers considered that he had misdelivered or withheld post. The investigation was criticised, but a further investigation after the hearing supported the dismissal. Where, given what was known at the dismissal, it was not reasonable to dismiss without giving opportunity to explain but discoveries show that that dismissal was merited, compensation could be nil. This ensures that an employee who could have been fairly dismissed does not get compensation. On reversing the tribunal’s decision the EAT seemed to have fallen into the same error, that of substituting its own view of the facts for that of the lower level decision maker. The original tribunal’s decision could not be said to be wrong in law, and was re-instated.

Citations:

[1997] EWCA Civ 1467

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sillifant v Powell Duffryn Timber Ltd CA 1983
The court explained the principle on ‘British Labour Pump’ as follows: ‘even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.141863

X v Z Ltd: CA 18 Apr 1997

Industrial Tribunal’s reporting restrictions provisions are to be given considering wider interests than just the parties who appeared before the tribunal. The tribunals themselves are the best judges of case management decisions.

Citations:

Times 18-Apr-1997, [1998] ICR

Jurisdiction:

England and Wales

Cited by:

Cited – Bryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.90644

GMB Trade Union v Brown: EAT 16 Oct 2007

EAT Unfair Dismissal: Reason for dismissal including substantial other reason / Compensation
The employee claimed constructive unfair dismissal because the employers refused to modify their grievance procedures to deal with her grievance. She alleged, and the Tribunal accepted, that it could damage her health if she had to pursue the grievance formally with her line manager. He was the person against whom she was complaining. The Tribunal found that there was a dismissal and it was unfair. The EAT on appeal held that in the somewhat unusual circumstances of this case, it was a finding open to the tribunal on the evidence. Hence the appeal on liability failed.
The employers also alleged that the Tribunal had erred in various ways in its assessment of compensation. The EAT upheld one of the grounds but rejected the others. The compensation was as a consequence adjusted by an amount agreed between the parties. Observations on dicta in the cases of Johnson v Unisys Ltd [2001] ICR 480 and Eastwood v Magnox Electric plc [2004] ICR 1064.

Judges:

Elias P J

Citations:

[2007] UKEAT 0621 – 06 – 1610

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.259889

UPVC Designs Ltd (T/A Croston Conservatories v Latimer and Another: EAT 16 Oct 2007

EAT Jurisdictional Points – Worker, employee or neither
Contract of Employment – Whether established
On the question whether the Appellant was employed under a contract of employment, the reasons of the Tribunal did not adequately evaluate and address the second and third aspects of the test in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497.

Citations:

[2007] UKEAT 0431 – 07 – 1610

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.266646

GAP Personnel Franchises Ltd v Robinson: EAT 16 Oct 2007

EAT Contract of employment – Damages for breach of contract
Unlawful deduction from wages
Whether express term of contract as to mileage expenses was consensually varied by the Claimant’s acquiescence. Whether employment continued under protest. Appeal allowed in part and remitted for rehearing.

Citations:

[2007] UKEAT 0342 – 07 – 1610

Links:

Bailii

Statutes:

Employment Act 2002 31

Jurisdiction:

England and Wales

Citing:

Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Rigby v Ferodo Ltd HL 1988
The House considered a claim for constructive dismissal where the employer had changed the terms of the employment contract by unilaterally imposing a pay cut.
Held: It was possible for an employee to continue to work under protest as to the . .
Cited – Burdett Coutts v Hertfordshire County Council 1984
An employee who continues to work under protest after a unilateral variation by the employer will not be prevented from bringing a claim for damages for breach of contract. . .
Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.261541

Security Industry Authority v Stewart and Sansara: Admn 17 Oct 2007

Various parties challenged the granting and withholding of licenses to operate as door supervisors (bouncers). The SIA regulated the grant of licences, and published criteria for their grant. It had been said that the inclusing of very minor offences in the category of offences requiring refusal of a licence, was unreasonable if a court did not retain a discretion.
Held: The Act required the SIA to apply the criteria, with no apparent room for discretion, and in selecting the criteria under section 7 the SIA did not chose to deploy ‘guidelines’ but rules.

Judges:

Laws LJ, Mitting J

Citations:

[2009] ICR 233, [2007] EWHC 2338 (Admin)

Links:

Bailii

Statutes:

Private Security Industry Act 2001 7

Jurisdiction:

England and Wales

Citing:

Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – Nicholds and others v Security Industry Authority Admn 19-Jul-2006
Application for judicial review of, in substance, the licensing criteria prepared and published by the Defendant, the Security Industry Authority. The applicants were door supervisors refused licenses for previous convictions. . .

Cited by:

Cited – T, Regina (on The Application of) v Greater Manchester Police and Another Admn 9-Feb-2012
The claimant challenged the terms of an enhanced Criminal Records Certificate issued by the defendant. He had been warned in 2002 for suspicion of theft of two cycles. The record had been stepped down in 2009, but then re-instated. He wished to . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 06 November 2022; Ref: scu.260205

Van Rensburg v The Royal Borough of Kingston-Upon-Thames and others: EAT 16 Oct 2007

EAT Practice and Procedure: Striking-out/dismissal – Imposition of Deposit
The Employment Tribunal made a deposit order under rule 20 of the Tribunal Rules of Procedure against the Appellant on the grounds that her claims had little prospect of success. She failed to pay the deposit by the date specified and her claims were struck out. The appeal raised two issues. The first was whether the Chairman was entitled to have regard to the likelihood of the facts being established when making a deposit order. The second was whether the apparently mandatory duty under rule 20(4) to strike out claims if the deposit was not paid in time complied with Article 6 of the ECHR.,br />The EAT held that the Chairman could have regard to the likelihood of the facts being established when making a deposit order. The EAT did not on the facts need to resolve the question whether rule 20(4) was compatible with Article 6. The appeals were dismissed.

Citations:

[2007] UKEAT 0096 – 07 – 1610

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Chohan v Derby Law Centre EAT 2-Mar-2004
EAT Employment Tribunal claim brought out of time because of Solicitor’s negligent advice. Application of British Coal Corporation -v- Keeble [1999] IRLR 337. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 November 2022; Ref: scu.261550

RN v Commission (Judgment): ECFI 16 Dec 2020

Civil service – Officials – Surviving spouse – Survivor’s pension – Articles 18 and 20 of Annex VIII to the Staff Regulations – Conditions of eligibility – Duration of marriage – Exception of illegality – Equal treatment – Principle of non-discrimination on the basis of age – Proportionality – Concept of ‘spouse’

Citations:

ECLI:EU:T:2020:618, T-442/17, [2020] EUECJ T-442/17RENV

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 05 November 2022; Ref: scu.660750