Category: Employment

Earl v Lubbock: CA 1905

The plaintiff was injured when a wheel came off a van which he was driving for his employer, and which it was the duty of the defendant, under contract with the employer, to keep in repair. The county court judge and the Divisional Court both hold that, even if negligence was proved, the action would not lie.
Held: The defendant was under no duty to the plaintiff and that there was no cause of action.
Matthew LJ said: ‘The argument of counsel for the plaintiff was that the defendant’s servants had been negligent in the performance of the contract with the owners of the van, and that it followed as a, matter of law that anyone in their employment, or, indeed, anyone else who sustained an injury traceable to that negligence, had a cause of action against the defendant. It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade.’

Judges:

Sir Richard Henn Collins MR, Stirling LJ, Mathew LJ

Citations:

[1905] 1 KB 253

Jurisdiction:

England and Wales

Citing:

Applied – Winterbottom v Wright 1842
Owing to negligence in the construction of a carriage it broke down. A third party sought damages for injuries which he alleged were due to negligence in the work.
Held: The doctrine of privity of contract precluded actions in tort by third . .

Cited by:

Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Negligence, Employment

Updated: 13 May 2022; Ref: scu.192609

Tomalin v S Pearson and Son Ltd: CA 1909

A widow claimed compensation for her husband’s death overseas.
Held: The Act did not provide for compensation to be payable. ‘What is the widow’s claim here ? She is claiming, not as a party to the contract, not as claiming any rights under a contract made by her or by any person through whom she claims, but she is simply claiming the performance by the defendants of a statutory duty, which statutory duty is said to be found in the Workmen’s Compensation Act. Now that brings us face to face with this proposition. What is the ambit of the statute and what is the scope of its operation ? It seems to me reasonably plain that this is a case to which the presumption which is referred to in Maxwell on the Interpretation of Statutes in the passage at p. 213 . . must apply: ‘In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom.’ and (Farwell LJ) ‘The question is one purely of the construction of the statute. The words of s.1, sub-s 1, are so wide that some limitation must necessarily be affixed to them. The words are, ‘If in any employment personal injury by accident arising out of and in the course of the employment is caused to any workman,’ and so on. To my mind the words ‘any employment’ there must be restricted to employment within the ambit of the United Kingdom or on the high seas as provided by s.7.’

Judges:

Cozens-Hardy MR, Farwell LJ

Citations:

[1909] 2 KB 61

Statutes:

Workmen’s Compensation Act 1906 7

Jurisdiction:

England and Wales

Cited by:

Cited – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.192276

Todd v British Midland Airways: CA 2 Jan 1978

The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is based in Great Britain, but ordinarily works for the greater part of his time on international flights overseas. Mr Todd ordinarily worked for 53 per cent of his time outside Great Britain. In those circumstances, Megaw LJ and his colleagues departed from the literal words of paragraph 9(2) and adopted a liberal approach. They looked at the ‘general legislative purpose’ such as I described in Nothman v Barnet London Borough Council [1978] ICR 336, 344. The legislative purpose must have been that men who were based in Great Britain should be entitled to the protection of the [Trade Union and Labour Relations Act 1974], even though they ordinarily worked outside Great Britain. This court adopted what may be called the ‘base’ test. Megaw LJ said [1978] ICR 376, 387: ‘It is, in the absence of special factors leading to a contrary conclusion, the country where his base is to be which is likely to be the place where he is to be treated as ordinarily working under his contract of employment.
The ‘base’ test, if I may say so, is a good sensible way of overcoming the literal meaning of the words ‘ordinarily working’ in the statute. It affords good guidelines for the tribunals which have to deal with so many of these cases. A man’s base is the place where he should be regarded as ordinarily working, even though he may spend days, weeks or months working overseas. I would only make this suggestion. I do not think the terms of the contract help much in these cases. As a rule, there is no term in the contract about exactly where he is to work. You have to go by the conduct of the parties and the way they have been operating the contract. You have to find at the material time where the man is based.’

Judges:

Lord Denning MR

Citations:

[1978] ICR 959

Jurisdiction:

England and Wales

Citing:

Cited – Nothman v Barnet London Borough County Council HL 1978
The normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position.
Lord Salmon said: ‘If a woman’s conditions of employment provide that her . .

Cited by:

Distinguished – Carver (Nee Mascarenhas) v Saudi Arabian Airlines CA 17-Mar-1999
The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in . .
Cited – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Crofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 13 May 2022; Ref: scu.192278

Newland v Simons and Willer (Hairdressers) Ltd: 1981

The court was asked whether an employee could complain of unfair dismissal where the tribunal had held that the employee knew or ought to have known that her employer had failed to pay tax and national insurance contributions in respect of her wages. The majority of the Employment Appeal Tribunal had been of the view that, where both employer and employee knowingly commit an illegality by way of a fraud on the revenue in the payment and receipt of the employee’s remuneration under a contract of employment, the contract was turned into one prohibited by statute or common law and the employee was precluded from enforcing any employment rights which she might otherwise have against the employer. The majority thought the essential question to be: ‘Has the employee knowingly been a party to a deception on the revenue?’
Held: May J said: ‘We have no doubt that Parliament never intended to give the statutory rights provided for by the relevant employment legislation to those who were knowingly breaking the law by committing or participating in a fraud on the revenue.’

Judges:

May J

Citations:

[1981] IRLR 359, [1981] ICR 521

Jurisdiction:

England and Wales

Cited by:

Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Colen and Another v Cebrian (UK) Limited CA 20-Nov-2003
The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 12 May 2022; Ref: scu.189941

Coral Leisure Group Ltd v Barnett: EAT 1981

The court was asked whether any taint of illegality affecting part of a contract necessarily rendered the whole contract unenforceable by a party who knew of the illegality. In the case of a contract not for an illegal purpose or prohibited by statute.
Held: It did not. The fact that the employee in the course of his employment committed an unlawful act did not prevent him from asserting thereafter his contract of employment against his employer. ‘The fact that a party has in the course of performing a contract committed an unlawful or immoral act will not by itself prevent him from further enforcing that contract unless the contract as entered into with the purpose of doing that unlawful or immoral act or the contract itself (as opposed to the mode of his performance) is prohibited by law.’

Judges:

Browne-Wilkinson J

Citations:

[1981] ICR 503

Jurisdiction:

England and Wales

Cited by:

Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Colen and Another v Cebrian (UK) Limited CA 20-Nov-2003
The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract . .
Cited – AXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 12 May 2022; Ref: scu.189940

Saunders v Scottish National Camps: EAT 1980

The claimant was dismissed as the handyman at the Respondent’s children’s camp because he was homosexual. He appealed against rejection of his claim for unfair dismissal.
Held: His appeal failed. If the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and he genuinely believed it to be fair this would bring the case within the category of another substantial reason. Where the belief is one which is genuinely held, and particularly is one which most employers would be expected to adopt, it may be a substantial reason even where modern sophisticated opinion can be adduced to suggest that it has no scientific foundation

Citations:

[1980] IRLR 174

Jurisdiction:

England and Wales

Cited by:

Doubted – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.189930

Wiseman v Salford City Council: 1981

A public employee’s dismissal after a finding of gross indecency was found to have been fair. The applicant had been employed on a job which brought him into contact with young children.

Citations:

[1981] IRLR 202

Jurisdiction:

England and Wales

Cited by:

Doubted – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.189929

Woodcock and others v Committee for the Time Being of the Friends School, Wigton: CA 1987

A school, which had been operated by Quakers as a registered charity, had been sold to a company. The issue was whether or not this was a transfer covered by TUPE. The Industrial Tribunal, the Employment Appeal Tribunal held that it was not, on the ground that the school was not a business or undertaking ‘in the nature of a commercial venture’.
Held: the decision of the EAT was confirmed.

Citations:

[1987] IRLR 98

Jurisdiction:

England and Wales

Cited by:

Cited – Alderson and others v Secretary of State for Trade and Industry CA 8-Dec-2003
The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only . .
Cited – Birch v Nuneaton and Bedworth Borough Council EAT 1995
‘The decision in the Commission’s case was on the basis of a concession made by the United Kingdom that non-profit-making organisations are excluded by the Regulations. That concession is not binding on the parties, or on the industrial tribunal or . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.189897

Notts County Council v Bowley: 1978

The public employee had been cautioned for gross indecency, and dismissed for a subsequent conviction.
Held: The dismissal was fair.

Citations:

[1978] IRLR 252

Jurisdiction:

England and Wales

Cited by:

Doubted – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.189928

Marshall v Harland and Wolff Ltd: NIRC 1972

The doctrine of frustration can apply to contracts of employment. The Court looked at the situations in which it should extend time for an appeal to be filed: ‘Was the employee’s incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the agreed terms of his employment?’

Judges:

Sir John Donaldson (President)

Citations:

[1972] ICR 101

Jurisdiction:

England and Wales

Cited by:

Cited – Verner, Sheppard, Ridley v Derby City Council, Norfolk County Council, St Thomas More Roman Catholic High School QBD 14-Nov-2003
The question was whether, when a teacher has applied for and accepted ill-health retirement benefit, usually a lump sum and a pension, on the ground of permanent incapacity, there exists a public law duty on his employer to dismiss the employee.
Cited – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
Cited – Hebden v Forsey and Son NIRC 1973
The court referred to the test for frustration set down in Marshall and added: ‘This is a test to enable the court to determine whether the incapacity is of such a nature that it strikes at and destroys the root of the contract and thus the . .
Cited – James v The Greytree Trust EAT 17-Jan-1996
The tribunal was asked whether, due to incapacity, an employee has been dismissed, or his contract of employment frustrated. . .
Cited – Egg Stores (Stamford Hill) Limited v Leibovici EAT 1977
Referring to the test set out in Marshall: ‘That is helpful, but one needs to know in what kind of circumstances can it be said that further performance of his obligations in the future will be possible? It seems to us that an important question to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.187971

Regina on the Application of Prison Officers’ Association v the Secretary of State for the Home Department: Admn 10 Nov 2003

The applicant trades union complained that the employer had failed to consult it before introducing new policies which had effect of breaching a legally binding agreement with the Association.
Held: The existing agreement provided for any dispute to be referred to arbitration. That had not occurred, and the judicial review was refused.

Judges:

The Honourable Mr Justice Newman

Citations:

[2003] EWHC 2662 (Admin)

Employment, Judicial Review

Updated: 12 May 2022; Ref: scu.187696

Kwik Save Stores Ltd v Swain: EAT 1997

An appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors.
When considering barring a party for late filing of a document, the absence of a good reason for a response not being entered in time is not, itself, determinative, but that other matters require to be considered by a Tribunal in the exercise of its discretion, including the merits of the defence set against the prejudice to the Claimant, the length of any delay, and the extent of any prejudice to the parties. Mummery J said that if the delay: ‘is the result of a genuine misunderstanding or an accidental or understandable oversight, the Tribunal may be much more willing to allow the late lodging of a response.’
The employer appealed against the refusal to extend time for a response under Rule 3. The employer lodged affidavits and exhibits sworn after the Industrial Tribunal Decision, in the EAT. Mummery P said: ‘We have read some of the correspondence exhibited to the affidavits, but have paid little attention to the contents of the affidavits themselves. As an appeal to this tribunal is only on a question of law, we find difficulty in understanding the basis on which the employers could properly file affidavit evidence on matters which could, and should, have been put before the industrial tribunal chairman on the applications for extensions of time. Reference was made to the decision of this appeal tribunal in Charlton v Charlton Thermosystems (Romsey) Ltd [1995] ICR 56 which sets out a procedure for affidavit evidence by an appellant who has never entered a notice of appearance and is seeking to appeal against a substantive decision on the merits reached adversely to him. In those cases the appeal tribunal laid down a procedure, at p. 60E-H, so that the tribunal could be satisfied that the appellant against the substantive decision had a reasonably arguable defence on the merits, as well as a satisfactory explanation for his failure to enter a notice of appearance or to apply for an extension of time for entering a notice of appearance. If the tribunal were not satisfied on those matters, then the appeal would be dismissed at a preliminary hearing.
These cases are not, however, appeals against a substantive decision on the merits. They are appeals against the interlocutory refusal of the chairman to grant an extension of time for serving a notice of appearance before the full hearing on the merits has taken place. In such cases it is incumbent upon the applicant for an extension of time to place all relevant documentary and other factual material before the industrial tribunal in order to explain (a) non-compliance with the Rules and (b) the basis on which it is sought to defend the case on the merits. Depending on the nature and circumstances of the case, that may be done by letter to the tribunal, or by affidavit verifying the factual position or at an oral hearing. The admission of fresh evidence on the hearing of an appeal against the refusal of an extension of time by the industrial tribunal is rarely necessary and is unjustifiable unless the strict requirements of Ladd v Marshall [1954] 1 WLR 1489 are satisfied: see Wileman v Manilec Engineering Ltd [1988] ICR 318.’

Judges:

Mummery J

Citations:

[1997] ICR 49

Statutes:

Industrial Tribunal Rules 1993 3

Jurisdiction:

England and Wales

Citing:

Cited – Charlton v Charlton Thermosystems (Romsey) Ltd EAT 1995
EAT The EAT set out a procedure for affidavit evidence by an appellant who had never entered a notice of appearance and was seeking to appeal against a substantive decision on the merits reached adversely to him. . .

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 . .
Cited – Moroak T/A Blake Envelopes v Cromie EAT 19-Apr-2005
moroak_cromieEAT2005
EAT Response lodged at the Employment Tribunal 44 minutes late and the Employment Tribunal ordered that the Respondent could take no part in the proceedings and refused to review that order on the basis it had no . .
Cited – Nelson v Newry and Mourne District Council NIIT 26-Oct-2006
. .
Still good law – Pendragon Plc T/A CD Bramall Bradford v Copus EAT 11-Jul-2005
EAT Practice and Procedure
Response served by Respondent out of time and judgment in default entered. Chairman found that pursuant to Rule 33 of the new Rules he had no discretion to review the default . .
Cited – NSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
Cited – KLT Construction Ltd v Swain EAT 8-Jul-2010
EAT PRACTICE AND PROCEDURE – Appearance/response
At a review of a default judgment, made because of the late response, the Employment Judge did not consider the prospect of its success. Given that error, . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 12 May 2022; Ref: scu.186767

Governors of Warwick Park School v Hazelhurst: CA 2001

‘In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there was no deliberate or conscious racial discrimination, it is necessary, before drawing the inference sought to be drawn, to set out the facts relied on and the process by which the inference is drawn. In some cases that process of reasoning need only be brief; in other cases more detailed reasoning will be required. The Employment Appeal Tribunal approached the matter in this way: ‘… we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have.’ and ‘As we have mentioned the tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained.’

Judges:

Pill LJ

Citations:

[2001] EWCA Civ 2056

Jurisdiction:

England and Wales

Cited by:

Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 May 2022; Ref: scu.185542

Butcher v The Salvage Association: EAT 20 Dec 2002

EAT Unfair Dismissal – Contributory fault

Judges:

His Hon Judge J Burke QC

Citations:

EAT/988/01

Links:

EAT

Citing:

See Also – Butcher v Salvage Association EAT 21-Jan-2002
. .
See Also – Butcher v Salvage Association CA 31-May-2002
. .

Cited by:

See Also – Butcher v The Salvage Association EAT 2-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.185539

Effa v Alexandra Healthcare NHS Trust: CA 5 Nov 1999

The tribunal’s decision was found to have confused unreasonable treatment with discriminatory treatment. ‘It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such in inference. See North West Thames Regional Health Authority v Noone [1988] ICR 813, [1988] IRLR 530 at p.824 of the former report. Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator.’

Judges:

Mummery LJ, Mantell and Kennedy LJJ

Citations:

Unreported 5 November 1999

Jurisdiction:

England and Wales

Citing:

Appeal from – Alexandra Healthcare NHS Trust and Another v Effa EAT 21-Apr-1998
The Trust appealed against a finding of race discrimination. He was a doctor working as a locum. He had been summarily dismissed in breach of the respondent’s own procedures and professional standards.
Held: The appeal succeeded. The tribunal . .

Cited by:

Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct) EAT 9-May-2013
EAT RACE DISCRIMINATION – Direct
The Claimant’s appeal argued that the Employment Tribunal had failed to follow through the inferences that it had drawn as to the conduct of the Medical Director of the . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 12 May 2022; Ref: scu.185536

Kirkby v Taylor: 1910

Though an apprenticeship contract need no longer be by deed, an executory apprenticeship contract must be in writing to be enforceable.

Citations:

[1910] 1 KB 529

Jurisdiction:

England and Wales

Cited by:

Cited – Edmonds v Lawson, Pardoe, and Del Fabbro CA 10-Mar-2000
A contract of apprenticeship is synallagmatic. The master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.184783

London Fire and Civil Defence Authority v Betty: EAT 1994

Tribunals should not be concerned to ascertain whether the illness was caused or contributed to by the employer. The question in issue is whether, in the light of the employee’s medical condition and the inquiries and procedures the employer made and used before deciding to dismiss, the dismissal was fair. To introduce questions of responsibility for illness or injury would take a Tribunal down a path which could lead to endless disputes on matters upon which they would have no special expertise. An employer has not disabled himself from fairly dismissing an employee whom he has injured. If the injury was caused by a breach of the employer’s duty to the employee then the employee will be entitled and able to recover appropriate compensation.

Judges:

Morison P

Citations:

[1994] IRLR 384

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – McAdie v Royal Bank of Scotland CA 31-Jul-2007
The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.183852

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.

Judges:

Longmore J

Citations:

[1996] 1 Lloyd’s Rep 200

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Employment, Banking, Torts – Other

Updated: 12 May 2022; Ref: scu.183573

Alexander Machinery (Dudley) Ltd v Crabtree: CA 1974

Donaldson LJ discussed the level of detail to be given by a tribunal when giving its reasons: ‘It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact? We do not think that the brief reasons set out here suffice for that purpose.’

Judges:

Donaldson LJ

Citations:

[1974] ICR 120, [1974] IRLR 56

Jurisdiction:

England and Wales

Cited by:

Cited – Safeway Stores Plc v Lorraine Sim EAT 30-Aug-2001
The employee had alleged that she had been pushed by a manager. The employer investigated, and having found against her, wrote saying they were instigating disciplinary procedures for making a false complaint. She resigned complaining constructive . .
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 . .
Applied – Levy v Marrable EAT 1984
The employee was dismissed for having worked on his own car in a dangerous manner. He admitted this, but said he had done so before to the employer’s knowledge without complaint. The employer denied this. The tribunal had dismissed the complaint. . .
Cited – Varndell v Kearney and Trecker Marwin Ltd CA 1983
Eveleigh LJ discussed the reasons to be given by a tribunal. After quoting Donaldson LJ, he continued: ‘He is not, as I read that judgment, saying that in every case all these points to which I refer must be adhered to, otherwise there will be an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.183411

Callaghan v Glasgow City Council: 2001

Citations:

[2001] IRLR 724

Jurisdiction:

Scotland

Cited by:

Cited – Hoyer (UK) Ltd v Capaldi EAT 18-Apr-2002
The parties had agreed to compromise the appeal on the basis that a new trial would be ordered. The EAT had to consider whether the settlement was appropriate.
Held: The employers had not accepted during his employment that he was disabled . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.182968

McConnell v Police Authority for Northern Ireland: 1997

An award of aggravated damages should not be an extra sum over and above the sum which the Tribunal of fact considers appropriate compensation for the injury to the claimants feelings, and that aggravated damages should not be treated as an extra award which reflects a degree of punishment of a respondent for its behaviour. The right course was to arrive at a figure which included whatever sum was thought to be appropriate by way of aggravated damages in order to reflect the sum for injury to feelings.

Judges:

Lord Chief Justice Carswell

Citations:

[1997] IRLR 625

Jurisdiction:

Northern Ireland

Cited by:

Cited – D Watt (Shetland) Ltd v Reid EAT 25-Sep-2001
The employer appealed an award of ten thousand pounds including aggravated damages, and other elements after a finding of sex discrimination. They also awarded six hundred pounds in interest. It was asserted that Scots law did not allow for . .
Cited – T G Harris v The Post Office (Royal Mail) EAT 25-Feb-2000
EAT Sex Discrimination – Injury to Feelings
The applicant, a homosexual, was humiliated at work by his fellow employees, and management failed to deal with his complaint. He succeeded in his claim for unfair . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 12 May 2022; Ref: scu.182956

Wilson v Ministry of Defence: 1991

The court was asked to look at three events envisaged, and to consider whether, if they did occur, they should be described as constituting serious deterioration.
Held: ‘First of all the development of arthritis to the extent that surgery is required. Osteoarthritis is a progressive condition. It is very common in cases where damage is suffered to an articular surface. I am not satisfied that it is established that deterioration to the point of surgery being required falls within the definition of serious deterioration in the circumstances of this case. It seems to me to be simply an aspect of a progression of this particular disease.
Secondly, development of arthritis to the extent that he changes employment. Again, it seems to me very much the same approach can be applied as with regard to the requirement of surgery and I do not think that deterioration triggering a change of employment can properly be described as serious within the meaning of the section.
Thirdly, that the plaintiff suffers a further injury in the nature of further damage to the ankle or elsewhere.’
The court rejected the Claimant’s approach: ‘The question then arises as to which cases are appropriate for a provisional damages award and which are not. I deal with this because, although I formed the view that there was no serious deterioration envisaged in this case, that was not a matter that I found entirely easy and indeed there are some matters that may more properly be dealt with under the heading of ‘discretion’ rather than taking into account the circumstances of the case in looking at whether or not the section was complied with.
The general rule in English law is that damages are assessed on a once-and-for-all basis. Section 32A of the Supreme Court Act 1981 creates a valuable statutory exception. In my judgment, the section envisages a clear and severable risk rather than a continuing deterioration, as is the typical osteoarthritic picture.
In my judgment, many disabilities follow a developing pattern in which the precise results cannot be foreseen. Within a general band this or that may or may not occur. Such are not the cases for provisional damages. The courts have to do their best to make an award in the light of a broad medical prognosis.
In my judgment, there should be some clear-cut event which, if it occurs, triggers an entitlement to further compensation.
Argument was addressed to the question of whether or not the discretion should be exercised. No doubt the courts will work out over a period of time the various factors that it may be relevant to take into account in the exercise of such a discretion. In my judgment, the important factors in this case are, first, to look and see whether, in respect of any of the three events outlined by Mr. Langstaff, there can truly be said to be a clear-cut identifiable threshold. In my judgment, there cannot.
I also take into account the degree of risk and the consequences of the risk. They do not seem to me to be such as to place this case into the category where there is a great demand that there ought to be only a provisional damages award at this stage.
In a sense, this point leads into the third aspect that I regard as particularly relevant to the exercise of this discretion, and that is weighing up the possibilities of doing justice by a once-and-for-all assessment against the possibility of doing better justice by reserving the plaintiff’s right to return.
It seems to me that the case falls within the general run of cases where there are uncertainties as far as the future is concerned. Nobody can look into a crystal ball and see precisely how the condition of the plaintiff’s ankle will develop, but I think that the uncertainties are such that they can all properly be taken into account in making a once-and-for-all assessment of damages today. My conclusion therefore is that this is not an appropriate case in which to exercise discretion in favour of a provisional damages order.’

Judges:

Scott Baker J

Citations:

[1991] ICR 595, [1991] 1 All ER 638

Jurisdiction:

England and Wales

Cited by:

approved – Curi v Colina CA 14-Oct-1998
A chance of ‘serious . . disease or deterioration’ must be a measurable risk rather than merely fanciful. There must be a possibility of deterioration, but there is no need to show more than a possibility. . .
Lists of cited by and citing cases may be incomplete.

Employment, Personal Injury, Damages

Updated: 12 May 2022; Ref: scu.182880

Parsons (CA) and Co Ltd v McLoughlin: EAT 1978

Citations:

[1978] IRLR 65 EAT

Jurisdiction:

England and Wales

Cited by:

Cited – Denco Ltd v Joinson EAT 14-Nov-1991
cw Employment – Unfair dismissal – Reasonableness of dismissal – Misconduct – Computer – Deliberate and unauthorised access to computer files – Summary dismissal for gross misconduct – Whether purpose for which . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.182887

Priddle v Dibble: EAT 1978

The reasons available to an employer under section 98(1)(b) are not limited to reasons of the same kind as those spelt out in section 98(2), nor do they require consideration of the fairness of the dismissal, which falls to be considered under section 98(4) rather than at the prior stage of identifying the reason for dismissal.

Citations:

[1978] ICR 149

Statutes:

Employment Rights Act 1996 98(1)(b) 98(2) 98(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Kenneth Cobley v Forward Technology Industries Plc CA 14-May-2003
The claimant had been chief executive and a director of the respondent for many years, but was dismissed upon it being taken over. His contract of employment as chief executive provided that it was to be coterminous with his appointment as director. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.182401

O’Laoire v Jackel International Limited (No 2): CA 1991

On taking up employment the plaintiff was told he would later be appointed managing director. His employment was terminated, and he sought damages.
Held: The defendant was estopped from denying it would appoint him managing director, since this was found to have been an implied term of his contract.
It was settled law that there was no claim for injury to feelings. The compensatory award received through a claim in the industrial tribunal should not be set off against the award, since the tribunal had not particularised the award under any one or more heads of damages.
Sir Nicholas Browne-Wilkinson stated that ‘it is well established that there can be no estoppel arising out of an order or judgment given in excess of jurisdiction’

Judges:

Lord Justice Browne Wilkinson

Citations:

[1991] 1 ICR 718, [1991] IRLR 170 CA

Statutes:

Employment Protection (Consolidation) Act 1978 69(1)(3) 75(1)(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Foster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 12 May 2022; Ref: scu.182099

Bastick v James Lane (Turf Accountants) Ltd: 1979

The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending.
Held: The court refused to interfere with the exercise of his dicretion by the industrial tribunal chairman. Crane J said: ‘Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse.’

Judges:

Crane J

Citations:

[1979] ICR 778

Cited by:

Cited – Dr Y R Teinaz v Wandsworth Borough Council CA 16-Jul-2001
The applicant had made a claim to the tribunal, but then applied for an adjournment on medical grounds, submitting a medical certificate.
Held: Where a refusal to exercise a discretion could lead to the loss of significant rights, a court . .
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Approved – Carter v Credit Change Ltd CA 2-Jan-1979
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal’s exercise of its discretion. Stephenson LJ said: ‘All the reasons which he gave seem to me to be good reasons for the decision to which he came; many . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Mentioned – Bull Information Systems Ltd v Joy and Rose EAT 13-Apr-1999
The claimants complained of unfair dismissal. The appellant company said that the contracts, as apprenticeships, did not give rise to continuous service accruals. The company appealed against a refusal of an adjournment of the hearing.
Held: . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 12 May 2022; Ref: scu.180696

Lennon v Birmingham City Council: 2001

Citations:

[2001] IRLR 826

Jurisdiction:

England and Wales

Cited by:

Cited – Rothschild Asset Management Limited v Ako CA 1-Mar-2002
The applicant had, in earlier proceedings before the Employment Tribunal, withdrawn issues she had raised. She now sought to pursue them, and the respondent asserted that she was estopped from doing so, and that the matter was res judicata. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.180919

Deman v Victoria University of Manchester: EAT 28 Sep 1998

The claimant asserted the appearance of prejudice in the tribunal which had heard his claim.
Held: The claim was unfounded. Courts should acknowledge that there was always a risk of causing suspicion if untoward remarks were made, and a court should be careful. Nevertheless, the appeal was dismissed.
EAT Procedural Issues – Employment Tribunal.

Judges:

His Honour Judge Peter Clark

Citations:

EAT/1375/98

Links:

EAT

Statutes:

Employment Tribunal Rules of Procedure 1993 13(2)(d)

Jurisdiction:

England and Wales

Citing:

Cited – Tchoula v Netto Foodstores Ltd EAT 6-Mar-1998
A bald statement saying that X’s evidence was preferred to Y’s is implausible and unreasoned and unacceptable; included simply to try and prevent any appeal. It is likely that there will be a great deal of background material which is . .

Cited by:

See Also – Deman v Victoria University of Manchester EAT 28-Sep-1999
. .
See Also – Leavers v The Victoria University of Manchester EAT 21-Feb-2000
EAT Sex Discrimination – Direct
EAT Sex Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.171622

Deman v Association of University Teachers and others: EAT 5 Feb 2002

EAT Race Discrimination – Inferring Discrimination
EAT Race Discrimination – Inferring discrimination.

Judges:

The Honourable Mr Justice Lindsay (P)

Citations:

EAT/746/99

Links:

EAT

Jurisdiction:

England and Wales

Citing:

See Also – John Hardie v the City of Edinburgh Council for Judicial Review of A Decision To Remove the Petitioner From the List of Supply Teachers By the City of Edinburgh Cou SCS 10-Nov-1999
. .
See Also – Deman v Association of University Teachers EAT 30-Apr-2001
Preliminary ex parte hearing to decide whether appeal was to go ahead to full hearing. . .
See Also – Deman v Association of University Teachers and Another EAT 6-Jun-2001
Appeal against order of tribunal for adjournment to allow vexatious litigant application against the applicant. . .
Cited – Deman v Association of University Teachers EAT 12-Jan-2000
. .

Cited by:

Appeal from – Deman v Association of University Teachers CA 14-Mar-2003
The appellant challenged dismissal of his claim for race discrimination. In the midst of a dispute with the employer University. He was dissatisfied with the support given by his union. He was refused legal assistance save through a firm of lawyers . .
See Also – Deman v Association of University Teachers CA 1-Nov-2002
Application for permission to appeal. . .
See Also – Deman v Association of University Teachers EAT 30-Apr-2001
Preliminary ex parte hearing to decide whether appeal was to go ahead to full hearing. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 12 May 2022; Ref: scu.172119

Miklaszewicz v Stolt Offshore Ltd: EAT 25 Apr 2001

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

Judges:

The Honourable Lord Johnston

Citations:

EAT/1385/00

Links:

EAT

Jurisdiction:

Scotland

Cited by:

Appeal from – Stolt Offshore Ltd v Miklaszewicz SCS 21-Dec-2001
In a protected disclosure case, time runs from the occurrence of the alleged detriment and not from the alleged disclosure.
Lord Nimmo Smith said: ‘It would appear to us to be consistent with the main purpose of the 1998 Act to approach the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 May 2022; Ref: scu.168168

Woodlands School (Newton Stewart) Ltd v Gordon: EAT 5 Oct 2001

The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no adjustment had been considered, and no justification was available. The finding was essentially under 5(1). The appeal was dismissed. The appeal against the award of damages calculated over two years was also dismissed. The EAT specifically criticised the minority chairman’s readiness to make allowance for a possible award of damages for the accident which led to the disability. To do so would defeat entirely the purpose of the legislation.

Judges:

The Honourable Lord Johnston

Citations:

EAT/220/01

Statutes:

Disability Discrimination Act 1995 5

Jurisdiction:

England and Wales

Citing:

Approved – P B Baynton v Saurus General Engineers Ltd EAT 14-Jul-1999
The Tribunal set out the order of questions to be established in a claim of disability discrimination: ‘The statutory sequence for establishing justification in a s.5(1)(a) claim is as follows: (1) The disabled appellant shows less favourable . .
Cited – Buxton v Equinox Design Ltd EAT 19-Nov-1998
Where a tribunal had found unfair dismissal and was considering an award of damages for injury to feelings under the Disability Discrimination Act, it had to recognise the different needs of unlimited awards, and take great care in assessing factual . .
Cited – the Post Office v S C Jones EAT 9-Feb-2000
EAT Disability Discrimination – Adjustments . .
Cited – H J Heinz and Co Ltd v Kendrick 2000
. .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland, Discrimination

Updated: 11 May 2022; Ref: scu.166530

Webb (Judgment): ECJ 17 Dec 1981

Where an undertaking hires out, for remuneration, staff who remain in the employ of that undertaking, no contract of employment being entered into with the user, its activities constitute an occupation which satisfies the conditions laid down in the first paragraph of article 60 of the eec treaty. Accordingly they must be considered a ‘ ‘ service ‘ ‘ within the meaning of that provision.
The essential requirements of article 59 of the treaty became directly and unconditionally applicable on the expiry of the transitional period. Those essential requirements abolish all discrimination against the person providing the service by reason of his nationality or the fact that he is established in a member state other than that in which the service is to be provided. The freedom to provide services is one of the fundamental principles of the treaty and may be restricted only by provisions which are justified by the general good and which are imposed on all persons or undertakings operating in the member state in which the service is to be provided in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the member state of his establishment.
Article 59 of the treaty does not preclude a member state which requires agencies for the provision of manpower to hold a licence from requiring a provider of services established in another member state and pursuing such activities on the territory of the first member state to comply with that condition even if he holds a licence issued by the state in which he is established, provided, however, that in the first place when considering applications for licences and in granting them the member state in which the service is provided makes no distinction based on the nationality of the provider of the services or his place of establishment, and in the second place that it takes into account the evidence and guarantees already produced by the provider of the services for the pursuit of his activities in the member state in which he is established.

Citations:

C-279/80

European, Employment

Updated: 11 May 2022; Ref: scu.133160

Young v National Power plc: CA 23 Nov 2000

The six months time limit for presenting a claim under the Act, ran from the cessation of employment, and not necessarily the date at which she ceased to be involved in the work in question. The words of the statute clearly referred to six months from the date of termination of employment. The words ‘work’ and ’employment’ were used together in the same section in a way which implied a distinction in meaning.

Citations:

Gazette 30-Nov-2000, Times 23-Nov-2000

Statutes:

Equal Pay Act 1970 1(2)(c )

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 11 May 2022; Ref: scu.90678

Teachers Pension Agency v Hill: CA 20 Jul 1998

A teacher whose series of fixed term contracts had been allowed to expire without renewal had not been dismissed by any reason of redundancy, and so was not entitled under the regulations to take early retirement.

Citations:

Times 20-Jul-1998

Statutes:

Teachers’ Superannuation (Consolidation) Regulations 1998 (1998 No 1652), Pension Schemes Act 1993 151(4)

Jurisdiction:

England and Wales

Employment

Updated: 11 May 2022; Ref: scu.89758

TNT Express Worldwide (UK) Ltd v Brown: CA 18 Apr 2000

An employee pursuing a claim of racial discrimination against his employers requested time off to see his adviser on the claim. The company refused, he took the time off, and was later dismissed. Since the company normally allowed on short notice short periods of absence for domestic reasons, to refuse because he was pursuing a claim was victimisation, and the dismissal was unfair. The correct comparator group was not determined by looking at the reason behind the request, but at the nature of what was requested.

Citations:

Times 18-Apr-2000, Gazette 18-May-2000, [2001] ICR 182

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Cited by:

Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 11 May 2022; Ref: scu.89906

Tasci v Pekalp of London Ltd: CA 17 Jan 2001

The duty of an employer properly to train his employees in the use of wood-working machinery, as set out in the Regulations, extended beyond that needed to give a comprehensive explanation in ordinary language. Particularly in the case where an employee might not have a good command of English, or where there was reason to suspect that he might exaggerate his understanding, the employer should verify the extent of understanding achieved.

Citations:

Times 17-Jan-2001

Statutes:

Woodworking Machines Regulations 1974 (1974 no 903)

Jurisdiction:

England and Wales

Health and Safety, Personal Injury, Employment

Updated: 11 May 2022; Ref: scu.89725

Stephenson (SBJ) Ltd v Mandy: CA 21 Jul 1999

Where there was a claim for an order preventing the disclosure of information allegedly received in confidence during the course of an employment, it was pointless to hear an appeal against an interim order which would be an exploration of the matters in the case which would be for decision in the trial of the full action now set for two weeks later.

Citations:

Times 21-Jul-1999

Jurisdiction:

England and Wales

Employment

Updated: 11 May 2022; Ref: scu.89542

Regina v Secretary of State for the Home Department, ex parte Benwell: QBD 1984

Disciplinary proceedings against a prison officer were flawed for a variety of reasons. The court found that the Home Office in making a disciplinary award of dismissal was performing the duties imposed upon it as part of the statutory terms under which it was to exercise its powers.
Held: The disciplinary proceedings against him were flawed for a variety of reasons. The court found that the Home Office in making a disciplinary award of dismissal was performing the duties imposed upon it as part of the statutory terms under which it was to exercise its powers. The court noted that whereas nurses entered into contracts of employment with health authorities, prison officers were ‘appointed’ by the Home Secretary.
Hodgson J said: ‘Clearly, the Court of Appeal in Ex parte Walsh did not consider the purported dismissal on disciplinary grounds of Mr. Walsh to be the performance of any duty imposed upon the authority as part of the statutory terms under which it exercised its powers.’

Judges:

Hodgson J

Citations:

[1985] IRLR 6, [1985] QB 554, [1984] 3 All ER 854, [1984] ICR 723, [1984] 3 WLR 843, (1984) 81 LSG 2544

Jurisdiction:

England and Wales

Employment

Updated: 11 May 2022; Ref: scu.554753

Hivac Ltd v Park Royal Scientific Instruments Ltd: CA 1946

It is indisputable that an employee owes his employer a contractual duty of ‘fidelity’, but how far it extends will depend on the facts of each case.
Lord Greene MR said: ‘It has been said on many occasions that an employee owes a duty of fidelity to his employer. As a general proposition, that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends. Prima facie it seems to me on considering the authorities and the arguments that it must be a question on the facts of each particular case. I can very well understand that the obligation of fidelity, which is an implied term of the contract, may extend very much further in the case of one class of employee than it does in others. For instance, when you are dealing, as we are dealing here, with mere manual workers whose job is to work five and a half days for their employer at a specific type of work and stop their work when the hour strikes, the obligation of fidelity may be one the operation of which will have a comparatively limited scope. The law would, I think, be jealous of attempting to impose on a manual worker restrictions, the real effect of which would be to prevent him utilizing his spare time. He is paid for five and a half days in the week, the rest of the week is his own, and to impose upon man, in relation to the rest of the week, some kind of obligation which really would unreasonably tie his hands and prevent him adding to his weekly money during that time would, I think, be very undesirable. On the other hand, if one has employees of a different character, one may very well find that the obligation is of a different nature.’
Even obligations under an implied contract of employment preclude an employee from competing with his employer in his spare time

Judges:

Lord Greene MR

Citations:

[1946] Ch 169, [1946] 1 All ER 350

Employment

Updated: 11 May 2022; Ref: scu.554406

Regina v The Postmaster General: 1876

Blackburn J said: ‘If a man gives his services, whatever consideration he gets for giving his services seems to me to be a remuneration for them. Consequently, I think if a person was in receipt of a payment or in the receipt of a percentage, or any kind of payment which would not be an actual money payment, the amount he would receive annually in respect of this would be ‘remuneration’ . . ‘

Judges:

Blackburn J

Citations:

(1876) 1 QBD 858

Cited by:

Cited – Currencies Direct Limited v Ellis CA 31-May-2002
The claimant company appealed against an order declining to order repayment of sums they claimed to be due from the defendant, a former director of the company. They said the payments were repayable loans, and he said that they had been been . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.552726

First Castle Electronics Ltd v West: EAT 1989

EAT The court set out the factors to be taken into account when determining whether a stay of employment proceedings pending an action in the high court is appropriate, including a similarity of issues between the two sets of proceedings, the complexity of those issues, the technicality of the evidence and the amount of damages claimed.
Wood J said: ‘when exercising their discretion as to whether or not to adjourn proceedings pending a High Court action, an industrial tribunal should have regard to convenience, expedition and cost when considering all the factors relevant to the exercise of the court’s discretion.’

Judges:

Wood J

Citations:

[1989] ICR 72

Cited by:

Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.519356

National Union of Taylors and Garment Workers v Charles Ingram and Company Ltd: EAT 1977

The Union said that it had been recognised by the employers even though there was no written agreement.
Held: Phillips J said: ‘Recognition’ plainly, we think, implies agreement – which, of course, involves consent. That is to say, it is a mutual process by which the employers recognise the union, which obviously agrees to be recognised and it may come about in a number of different ways. There may be a written agreement that the union should be recognised. There may be an express agreement not in writing. Or, as we think, it is sufficient if neither of those exists but the established facts are such that it can be said of them that they are clear and unequivocal and give rise to the clear inference that the employers have recognised the union. This will normally involve conduct over a period of time.
Of course, the longer that state of facts has existed, the easier it is in any given case to reach a conclusion that a proper interpretation of them inevitably leads to the conclusion that the employers have recognised the union. Against that test, it has not been suggested here that there is any formal document by which the employers recognised the union. It is necessary to look at the facts. As we said, they seem to us to lead inescapably to the conclusion that these employers treated this union at the material time as being recognised for the purposes in question.’

Judges:

Phillips J

Citations:

[1977] ICR 530

Employment

Updated: 11 May 2022; Ref: scu.471784

T and D Transport (Portsmouth) Limited v Limburn: EAT 1987

The Respondent employers had not attended a hearing before the Industrial Tribunal. The hearing went ahead. The Respondents applied for a review of the decision (that the employee had been unfairly dismissed and should be compensated) on the ground that they had not received notice of the proceedings leading to the decision. The Tribunal, having heard evidence, concluded with regard to Section 7 of the 1978 Act that the employers had not displaced the presumption that notice of the hearing before the Industrial Tribunal had duly been served on them.
Held: Popplewell, J rejected a submission that the section 7 had no application. He concluded: ‘We are all of the view that Section 7 does apply because Section 7 is not dealing merely with the question of the sending of a document, but also with the receipt. Although the word ‘receipt’ is not used and the word is ‘serve’ or ‘give’ or ‘send’, the phrase ‘the service is deemed to be effective’ and ‘the service is deemed . . to have been effective’ are words which indicate that the receipt of the document is inevitably bound up with the sending of it.’

Judges:

Popplewell J

Citations:

[1987] ICR 696

Statutes:

Interpretation Act 1978 7

Employment

Updated: 11 May 2022; Ref: scu.469538

National Union of Gold, Silver and Allied Trades v Albury Brothers Ltd: EAT 1978

The tribunal was asked whether the employer had recognised the Trades Union even though there was nothing formal in place.
Held: Phillips J said: ‘First, the question of recognition is a mixed question of fact and law. Secondly, recognition requires mutuality, that is to say that the employer acknowledges the role of the union for the relevant purposes and the union assents to that acknowledgment. Thirdly, such a process requires agreement, which may be express or implied. Fourthly, if it is said to be implied, the acts relied upon must be clear and unequivocal, and (usually) involve a course of conduct over a period of time. Fifthly, the words ‘to any extent’ in section 11(2) [‘see now section 178(3) of the Act of 1992′] do not refer to the strength or conviction of the recognition but to the subject or areas to which it relates. In other words there may be partial recognition; that is, recognition in certain respects but not in others.’

Judges:

Phillips J

Citations:

[1978] IRLR 504, [1978] ICR 62

Cited by:

Applied – Working Links (Employment) Ltd v Public and Commercial Services Union EAT 12-Mar-2013
EAT REDUNDANCY – Collective consultation and information
The evidence to support a conclusion that a trade union has been recognised by an employer for collective bargaining purposes within the meaning of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.471782

Watling v William Bird and Son Contractors Limited: EAT 1976

EAT Phillips J discussed the availablitity of an appeal against an industrial tribunal decision, and what would amount to perversity as an error of law, saying: ‘There is only an appeal to this court on a point of law and that is the difficulty in his way. The authorities on what is a point of law are endless, and they express the matter in all sorts of different ways, but it all in the end comes down to the same thing. An appellant who claims that there is an error of law must establish one of three things: he must establish either that the Tribunal misdirected itself in law or misunderstood the law, or misapplied the law; or, secondly, that the Tribunal misunderstood the facts, or misapplied the facts; or, thirdly – and this again was put in all sorts of different ways – that although they apparently directed themselves properly in law, and did not mis-state, or misunderstand, or misapply the facts, the decision was ‘perverse’, to use a word which to modern ears sounds harsh, or (which is another way of saying the same thing) that there was no evidence to justify the conclusion which they reached.’

Judges:

Phillips J

Citations:

[1976] 1 ITR 70

Cited by:

Not to be followed – British Telecommunications Plc v Sheridan CA 1990
The appellant employers challenged the decision of the EAT to reverse the tribunal’s finding that the claimant had been fairly dismissed.
Held: Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.509978

Laws v London Chronicle (Indicator Newspapers) Ltd: CA 1959

Lord Evershed MR discussed the justification for summary dismissal: ‘It follows that the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. One act of disobedience or conduct can justify dismissal only if it is of a nature which goes to show that the servant has repudiated the contract or one of its essential conditions and, for that reason therefore, I think what one finds in the passages which I have read that the disobedience must at least have a quality that it is wilful. In other words it connotes a deliberate flouting of the essential contractual terms.’

Judges:

Lord Evershed MR

Citations:

[1959] 1 WLR 698, [1959] All ER 285

Jurisdiction:

England and Wales

Cited by:

Cited – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Mentioned – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Cited – Mason v Huddersfield Giants Ltd QBD 15-Jul-2013
The claimant rugby league player complained of his dismissal under a clause allowing such for behaviour which might bring the club into disrepute. He had engaged in a celebratory evening out involving a naked run. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.450216

Quinnen v Hovells: 1984

Waite J said: ‘The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such.’ The concept could include somebody who was self-employed providing personal services.

Judges:

Waite J

Citations:

[1984] ICR 525

Statutes:

Sex Discrimination Act 1975, Equal Pay Act 1970

Jurisdiction:

England and Wales

Cited by:

Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 May 2022; Ref: scu.442571

Charles Letts and Co v Howard: EAT 1976

Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and haste and the apology is heartfelt and sincere.
In proceedings before Industrial Tribunals for unfair dismissal the onus lies on the employers, if they seek to establish the point, to satisfy the Tribunal that even if the proper fair procedure had been carried through, it would have made no difference to the result. It is then for the claimant to establish that the job has been lost and that he or she has no other or less remunerative employment.

Citations:

[1976] IRLR 248

Cited by:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Gledhill v Bentley Designs (UK) Ltd Merc 2-Jun-2010
. .
Cited – Oderinde v Datapact Ltd EAT 14-Jan-2002
EAT Unfair Dismissal – Compensation . .
Cited – Britool Ltd v Roberts and others EAT 1-Apr-1993
. .
Cited – Wolesley Centers Ltd v Simmons EAT 24-May-1993
The EAT considered the Polkey principle: ‘a finding that a dismissal is unfair does not mean that an employee is entitled to full compensation for the loss resulting from the loss of his job. He is only entitled to the loss he has sustained which is . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.445478

G D Searle and Co Ltd v Celltech Ltd: CA 1982

The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and profession, to promote their own private interests by changing their employment and also to promote the public interest by better use of his personal aptitudes, experience and skill.
Cumming-Bruce LJ said: ‘The court seeks to uphold the obligation of free contracting parties to a contract of service to honour their contractual obligations. On the other hand, the court seeks to respect the rights of servants to advance in their chosen trade and profession, and in this connection to promote their own private interest by changing their employment, and also to promote the public interest by better use of the servants’ personal aptitudes, experience and skill . . The picture that emerges is the market for labour in operation for the benefit of the employees and of the public, but in the short term, naturally to the disadvantage of the employer who loses in the competitive bargaining process. The usual procedure by which a business protects itself from competition for its employees is a restrictive covenant; that is conspicuous by its absence in the relevant contracts. If there were such covenants, the employee could invite the court to avoid them if on accepted principles of law they were unreasonable in their width or their duration . . The law has always looked with favour upon the efforts of employees to advance themselves, provided that they do not steal or use the secrets of their former employer. In the absence of restrictive covenants, there is nothing in the general law to prevent a number of employees in concert deciding to leave their employer and set themselves up in competition with him.’

Judges:

Cumming-Bruce LJ

Citations:

[1982] FSR 92

Citing:

Cited – Inland Revenue Commissioners v Hambrook 1956
The Revenue claimed for loss resulting from its being deprived of the services of a taxing officer due to a vehicle accident.
Held: The action was dismissed. An action for that kind of loss did not lie where its relationship was with an . .

Cited by:

Cited – Cook v MSHK Ltd (Formerly Ministry Of Sound Holdings Ltd) and Another CA 9-Jul-2009
. .
Cited – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .
Cited – In Re a Firm of Solicitors TCC 16-Jul-1999
A firm of architects sought an order to prevent the defendants instructing a firm of solicitors including a solicitor who had been a partner in a firm representing them is earlier similar matters. The solicitor had personally been involved in . .
Cited – UBS Wealth Management (UK) Ltd v Vestra Wealth Llp QBD 4-Aug-2008
The court considered the grant of ‘springboard relief’ and said: ‘In my judgment, springboard relief is not confined to cases where former employees threaten to abuse confidential information acquired during the currency of their employment. It is . .
Cited – Hydra Plc and others v Anastasi and others QBD 20-Jul-2005
. .
Cited – Cray Valley Limited v Deltech Europe Limited, Scanlan, Riley ChD 16-Apr-2003
Allegation of breach of confidence . .
Cited – Bolkiah v KPMG (A Firm) CA 22-Oct-1998
When considering whether an accountancy firm could be permitted to conduct an investigation on behalf of solicitors acting in a matter acting against a client for whom it still held confidential information, the court could find a balance between . .
Cited – British Midland Tool Ltd v Midland International Tooling Ltd and Others ChD 12-Mar-2003
The claimant sought damages for conspiracy and other torts and breaches of duty against the defendants. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Employment

Updated: 11 May 2022; Ref: scu.432828

Octavius Atkinson and Sons Ltd v Morris: EAT 1988

The employee, a steel erector, was summarily dismissed at 2:00. He arrived home at 4:00pm by which time the employer had discovered that alternate work was available which it would have been obliged to offer to him as an employee.
Held: An employee’s contractual entitlements and obligations under a contract of employment may continue after the date of termination by summary dismissal without indicating that the contract was intended to continue after the time when it was expressly terminated by summary dismissal. The employee remained employed until the time at which he reached home, and therefore at the precise time the employers became aware of the alternative, they remained obliged to make the offer.

Citations:

[1988] ICR 880

Cited by:

Appeal from – Octavius Atkinson and Sons Ltd v Morris CA 1989
The employee claimed unfair dismissal. He had been dismissed without notice at 2:00pm. Later the employer discovered that it might have offered alternate employment. The Tribunal had found that the opportunity emerged before the employee got home, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.409217

Griffin v South West Water Services Ltd: 1995

The court asked at what point the European Directive imposed a duty to consult on an employer contemplating redundancies.
Held: The words ‘is contemplating’ referred to a point before proposals were formulated. Obiter, Blackburne J said ‘the obligation to consult only arises when the employer’s contemplation of redundancies has reached the point where he is able to identify the workers likely to be affected and can supply the information which the Article requires him to supply . . I cannot see that the Article requires the employer to embark upon the process of consultation at any particular moment, much less as soon as he can be said to have in mind that collective redundancies may occur. The essential point to my mind, is that the consultation must be one where, if they wished to do so, the workers’ representatives can make constructive proposals and have time in which to do so before the relevant dismissal notices are sent out. This process cannot sensibly begin until, as it seems to me, a point has been reached where the information identified in Article 2 (3) is available.’

Judges:

Blackburne J

Citations:

[1995] IRLR 15

Cited by:

Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 11 May 2022; Ref: scu.421398

Melon v Hector Powe Ltd: SCS 1980

Judges:

Lord President Emslie

Citations:

1980 SC 188

Cited by:

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

Employment, Scotland

Updated: 11 May 2022; Ref: scu.402544

Bugden and Co v Thomas: 1976

The failure to have a hearing with the person responsible for the dismissal was held to be unfair.

Citations:

[1976] IRLR 174

Cited by:

Cited – Knight v Treherne Care and Consultancy Ltd EAT 15-Apr-2009
EAT UNFAIR DISMISSAL
The Employment Tribunal erred when it found the employee was not unfairly dismissed. There was no disciplinary hearing. In the light of London Ambulance Service NHS Trust v Small [2009] . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.403028

Blackpole Furniture Ltd v Sullivan: EAT 1978

The EAT considered whether there was any impropriety in an Industrial Tribunal considering an application for review even though their decision was under appeal to the EAT.
Held: There was no impropriety in so doing. In giving their reasons the EAT said: ‘One of the reasons why it is not necessarily undesirable to carry on with the application for a review is that experience shows that very often we have appeals perhaps related to compensation or matters of that kind where the real complaint is that some trivial error has been made – perhaps in computation, calculation or something of that sort – and where all we can do, if we are satisfied that it has, is to remit the matter to be reheard on that particular point.’

Citations:

[1978] ICR 559

Cited by:

Cited – Trimble v Supertravel Ltd EAT 1982
The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.347414

Genower v Ealing, Hammersmith and Hounslow AHA: EAT 1980

EAT The EAT upheld an industrial tribunal’s finding that by unilaterally varying the employee’s job description the employer was in fundamental breach of contract, entitling the employee to resign in accordance with the Sharp contract test. However, in dismissing the employee’s appeal the Tribunal also upheld the industrial tribunal’s further findings that the employer had shown (a) some other substantial reason for dismissal and (b) that the (constructive) dismissal for that reason was fair in accordance with section 57(3) EPCA 1978.
Slynn J observed: ‘It is perfectly plain on the decision of the Court of Appeal in Hollister which is followed by this Tribunal in Bowater Containers Ltd v McCormack [1980] IRLR 50 that a re-organisation or re-structuring of a business may well be a reason which falls within section 57(1)(b) [the statutory predecessor of what is now section 98(1)]. Indeed, it may be that, if, to quote from the Court of Appeal Judgment, ‘a sound good business reason is shown,’ this may constitute ‘a substantial reason’ within the meaning of the section, even if the alternative to taking the course they propose is not that the business may come to a standstill, but is merely that there would be some serious effect upon the business.’

Judges:

Slynn P

Citations:

[1980] IRLR 297

Statutes:

Employment Protection (Consolidation) Act 1978 57(3)

Cited by:

Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Applied – Savoia v Chiltern Herb Farms Ltd CA 1982
The employee submitted that a constructive dismissal cannot be fair.
Held: The submission failed. Waller LJ said: ‘He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong.’ In considering . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.377343

Neale v Hereford and Worcester County Council: CA 1986

May LJ said that the decision of an employer’s disciplinary hearing: ‘neither the EAT nor this Court could disturb their decision unless one could say in effect ‘My goodness, that is certainly wrong’.’ He discussed the test for an apellate court finding perversity in a tribunal’s judgment, saying that:’is that an appellate court can very easily persuade itself that, as it certainly would not have reached the same conclusion, the Tribunal that did so was `certainly wrong’. The more dogmatic the temperament of the judges, the more likely they are to take that view. That is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self misdirection in law by the industrial tribunal. If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal is not a permissible option and has to be characterised as perverse.’

Judges:

May LJ, Ralph Gibson LJ, Stocker LJ

Citations:

[1986] ICR 471

Cited by:

Cited – Santamera v Express Cargo Forwarding (T/A IEC Ltd) EAT 26-Nov-2002
The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process.
Held: An employer was not duty . .
Cited – British Telecommunications Plc v Sheridan CA 1990
The appellant employers challenged the decision of the EAT to reverse the tribunal’s finding that the claimant had been fairly dismissed.
Held: Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.341169

Robert Cort and Son Ltd v Charman: EAT 1981

Where an employee is dismissed summarily, the effective date of termination of his employment for the purposes of employment law is the date of the summary dismissal. It makes no difference that the dismissal might have amounted to a repudiatory breach of the employment contract such that the employee might be entitled to bring a claim for damages in respect of such dismissal.
Browne-Wilkinson J said: ‘(3) . . We therefore consider it to be a legitimate use of words to say, in the context of [the section], that the termination of the contract of employment ‘takes effect’ at the date of dismissal, since on that date the employee’s rights under the contract are transformed from the right to be employed into a right to damages. This view receives support from the remarks of Winn LJ in Marriott v. Oxford and District Co-operative Society Ltd (No. 2) [1970] 1 QB 186, 193 . . This indicates that the date of final termination of the contract is not necessarily ‘the effective date of termination’ or ‘the relevant date’: if, as in the case of repudiation, further full performance becomes impossible, that will be the relevant date.
We consider it a matter of the greatest importance that there should be no doubt or uncertainty as to the date which is the ‘effective date of termination.’ An employee’s rights either to complain of unfair dismissal or to claim redundancy are dependent upon his taking proceedings within three months of the effective date of termination (or in the case of redundancy payments ‘the relevant date’). These time limits are rigorously enforced. If the identification of the effective date of termination depends upon the legal subtleties of the law of repudiation and acceptance of repudiation, the ordinary employee will be unable to understand the position. The Dedman rule fixed the effective date of termination at what most employees would understand to be the date of termination, i.e. the date on which he ceases to attend his place of employment.’

Judges:

Browne-Wilkinson J

Citations:

[1981] ICR 816

Citing:

Applied – Dedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .
Cited – Marriott v Oxford and District Co-operative Society Ltd (No. 2) CA 1970
After pointing out that the statutory definition of ‘the relevant date’ for redundancy payment purposes . . is the date of the expiry of the notice or (if there is no notice) the date on which the termination takes effect, Winn LJ said: ‘That is . .

Cited by:

Cited – Kirklees Metropolitan Council v Radecki CA 8-Apr-2009
The council appealed against a finding that the claimant’s case had been brought in time. There had been negotiations for a compromise agreement which had failed. The EAT had found it unclear that the employment had ended at the point asserted by . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.331990

Benwell v Inns: 18 Jul 1857

The servant of a milkman, in C. Street, London, agreed not to carry on the like business within three miles therefrom. Held, that this was not an undue restraint of trade, and the servant was restrained, by injunction, from violating his agreement.
A. agreed to take B. as his servant, ‘at such wages as might from time to time be agreed on,’ and B., on his part, agreed to serve A., and not to set up trade for himself within certain limits. B. accordingly entered into and continued in A.’s service, at wages agreed on. Held, that there was a good and valuable consideration to support the agreement as against B., and the Court enforced it. A milkman, carrying on business in three places, took the Defendant into his service.
The Defendant engaged, as regarded the milkman, his assignees and successors, not to carry on a similar trade within certain limits. A. sold his branch business at one of the three places to the Plaintiff, who retained the Defendant in his service.
Held, that the Plaintiff, as assignee and successor of part of the business, was entitled to the benefit of the Defendant’s contract.

Citations:

[1857] EngR 778, (1857) 24 Beav 307, (1857) 53 ER 376

Links:

Commonlii

Employment, Contract

Updated: 11 May 2022; Ref: scu.290524

Price v Mouat: 1862

The plaintiff, who was known to be acting in the capacity of a ‘lace-buyer’ was engaged by the defendant, a lace-dealer, under the following memorandum: ‘M agrees to engage P. for the term of three years from Monday the 15th of August, 1859, at the yearly salary of 500l payable monthly. P. to give the whole of his services, and to be advised and guided by M if necessary’ In an action by P. against M. for a wrongful dismissal pending the term on the alleged ground of disobedience of lawful orders
Held: that evidence was admissible to show the capacity in which the plaintiff was engaged, viz. as ‘lace-buyer’ ; and that it was properly left to the jury to say whether or not the orders which he was alleged to have disobeyed were such as a person in that position was bound to obey.
The general rule is that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character.

Judges:

Erle CJ, Williams, Byles and Keating JJ

Citations:

[1862] EngR 136, (1862) 11 CB NS 508, (1862) 142 ER 895

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Price v Mouatt 1861
On a contract in writing, within the statute, in general terms for the employment of the plaintiff. Held, that it might be shown by parol, that he was employed in a particular capacity ; and, as a question whether he had wilfully disobeyed a lawful . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 11 May 2022; Ref: scu.286302

Wileman v Minilec Engineering Ltd: 1988

The principles of Ladd v Marshall apply also in employment tribunal proceedings.

Citations:

[1988] ICR 318

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

Cited – Todd (T/A Hygia Professional Training) v Cutter EAT 13-Jul-2007
EAT PRACTICE AND PROCEDURE
Perversity
Appeal by Respondent based on an application for fresh evidence, which was clearly material and credible, but which did not satisfy the third Ladd v Marshall test . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.280482

O’Keefe v National School of Hypnosis and Psychotherapy: EAT 28 Feb 2002

Citations:

[2002] UKEAT 1065 – 01 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dr O’Keefe v National School of Hypnosis and Psychotherapy,(2) United Kingdom Council for Psychotheraphy EAT 13-Dec-2001
EAT Procedural Issues – Employment Tribunal . .

Cited by:

See Also – Dr T O’Keefe v National School of Hypnosis and Psychotherapy EAT 13-Nov-2002
EAT Sex Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.202543

Buckoke v Greater London Council: CA 1971

The claimant fireman sought with his union to challenge a policy document issued by his employers which gave directions suggesting that fire engine drivers were to disobey traffic signals.
Held: The decision of the lower court was affirmed. It is not the law that every criminal act must lead to a prosecution.
Lord Denning MR said of disciplinary bodies that ‘they must act fairly just the same as anyone else; and are just as subject to control by the courts’
As to a defence of necessity, Lord Denning MR said: ‘During the argument I raised the question: Might not the driver of a fire engine be able to raise the defence of necessity? I put this illustration. ‘A driver of a fire engine with ladders approaches the traffic lights. He sees 200 yards down the road a blazing house with a man at an upstairs window in extreme peril. The road is clear in all directions. At that moment the lights turn red. Is the driver to wait for 60 seconds, or more, for the lights to turn green? If the driver waits for that time, the man’s life will be lost. I suggested to both counsel that the driver might be excused in crossing the lights to save the man. He might have the defence of necessity. Both counsel denied it.
They would not allow him any defence in law. The circumstances went to mitigation they said, and did not take away his guilt. If counsel are correct – and I accept that they are – nevertheless such a man should not be prosecuted. He should be congratulated.’

Judges:

Lord Denning MR

Citations:

[1971] 2 All ER 254, [1971] Ch 655

Jurisdiction:

England and Wales

Citing:

Appeal from – Buckoke v Greater London Council ChD 1970
The plaintiff sought to challenge instructions from his employer as to his freedom to ignore traffic signals when driving a fire engine on an emergency run. . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Employment

Updated: 11 May 2022; Ref: scu.188799

Regina v Crown Prosecution Service Ex Parte Hogg: CA 14 Apr 1994

A Crown Prosecution Service prosecutor’s dismissal was not reviewable, his contract was not underpinned by statute. However, even in employment cases the possibility of judicial review cannot always be ruled out.

Judges:

Lord Bingham MR

Citations:

Times 14-Apr-1994

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.86484

Naeem v Bank of Credit and Commerce International Sa: CA 25 May 2000

An employee entered into a compromise agreement having lost his employment. He was later sued by his employer but counterclaimed for stigma damages against the employer. It was held that the release could not bind the employee in respect of matters of which he was unaware at the time of the agreement, and where the bank was seeking to take advantage of that ignorance.

Citations:

Gazette 25-May-2000

Jurisdiction:

England and Wales

Citing:

Appeal from – Naeem v Bank of Credit and Commerce Admn 19-Apr-2000
. .

Cited by:

Appealed to – Naeem v Bank of Credit and Commerce Admn 19-Apr-2000
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 May 2022; Ref: scu.84155

Newbold and Another v Leicester City Council: CA 20 Aug 1999

An authority which had made an agreement which gave benefits to its employees in return for a reduction in their earnings was bound by that agreement even if it later proved more expensive than had been expected, and very generous. The scheme was not ultra vires. It was not a voluntary payment, but one under which employees had surrendered benefits.

Citations:

Times 20-Aug-1999, Gazette 11-Aug-1999

Jurisdiction:

England and Wales

Citing:

Distinguished – Allsop v North Tyneside Metropolitan Borough Council CA 1991
The district auditor declared that payments made by the Council under an ‘enhanced voluntary severance scheme’, established by it in connection with its policy of not making employees compulsorily redundant, were unlawful. The payments were . .
Lists of cited by and citing cases may be incomplete.

Local Government, Employment

Updated: 11 May 2022; Ref: scu.84270

Jones and Another v Welsh Rugby Football Union: QBD 6 Mar 1997

A professional sportsman should be allowed to have representation on a suspension hearing, which might affect his ability to earn his living. However Ebsworth J doubted the correctness of the intrusion of courts into such matters, saying that:’There is . . an air of unreality about a court sitting down to decide whether a player would have made a difference between his team winning or losing a particular match or whether or not he would have been selected for a particular game. It would also be difficult, if not impossible, for a court to calculate the cause of any demotion of a club if there were a suspension and whether and if so what loss flowed from that’.

Judges:

Ebsworth J

Citations:

Times 06-Mar-1997

Jurisdiction:

England and Wales

Cited by:

At EAT – Jones and Another v Welsh Rugby Football Union; Same v Pugh (For and On Behalf of Welsh RFU) CA 19-Dec-1997
Disciplinary proceedings against a sportsman which had been set aside for him having received an unfair hearing, may be re-instated once the defects in the procedure were remedied. . .
Cited – Sankofa and Another v The Football Association Ltd ComC 12-Jan-2007
The claimant sought an injunction to order the defendant football association from preventing him playing on a football match. He had been sent off and was subject to an automatic additional one match ban. He sought to exercise a right under the . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Employment

Updated: 10 May 2022; Ref: scu.82591

Humphreys v Oxford University: CA 18 Jan 2000

In a transfer of undertakings, where the employee could show that the transfer of his employment to a new employer would lead to a real detriment, the transfer operated to entitle the employee to terminate his contract vis a vis the first employer and to claim damages for wrongful dismissal. The regulations had to be read so as to comply with the directive under which they had been made, and the intention of the directive was to protect rights, not to remove them.
Roch LJ discussed the need to apply the ECJ rulings on the interpretation of the Acquired Rights Directive: ‘That that is the correct reading and provides the answer to the first question is concluded, in my judgment, by the requirement that the Regulations must be read in a way which gives effect to the Directive as interpreted by the European Court.
Turning to the second question, ‘against whom is the employee to obtain his remedy?’ The European Court has decided that where a transfer of an undertaking takes place an employee is entitled to decide not to continue the contract of employment or employment relationship with the transferee. The Directive cannot be interpreted as obliging the employee to continue his employment relationship with the transferee. Where the employee decides not to continue with the transferee, the court has left it to Member States to provide whether in such cases the contract of employment or employment relationship must be regarded as terminated either by the employee or the employer. Member States may also provide that the contract of employment or employment relationship should be maintained with the transferor.’

Judges:

Roch LJ

Citations:

Times 18-Jan-2000

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 10 May 2022; Ref: scu.81527

Governing Body of Clifton Middle Schooland others v Askew: CA 2 Aug 1999

A teacher employed within a local authority school was an employee of the authority and not of the school itself. Where an authority cease to maintain a junior and middle school and opened a new school he was properly made redundant. The transfer of undertakings regulations did not apply in his case.

Citations:

Gazette 02-Sep-1999, Times 02-Aug-1999

Statutes:

Education Act 1980 12, Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

Jurisdiction:

England and Wales

Employment

Updated: 10 May 2022; Ref: scu.80950

F W Farnsworth Limited v McCoid: CA 31 Mar 1999

A company which refused to recognise a union shop steward as such, because of the way in which he behaved, was treating him less favourably to restrict those activities, despite the fact that he had not been treated worse as an employee.
In de-recognising Mr McCoid as a shop steward: ‘The only effect of the action taken by the employer is to deprive Mr McCoid of having the status and being able to perform the activities of a shop steward on behalf of his fellow employees’. The Court distinguished between actions taken for the purpose of preventing or deterring him from taking part in the activities of the trade union, as opposed to the purpose of removing someone from the office of shop steward, who was not an appropriate person to fulfil the role of a shop steward.

Citations:

Times 31-Mar-1999, Gazette 21-Apr-1999, [1999] IRLR 626, [1999] EWCA Civ 1064

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 146

Jurisdiction:

England and Wales

Citing:

Appeal from – Farnsworth Ltd v McCoid EAT 27-Mar-1998
The Applicant had worked as a factory operative and was a duly elected shop steward. There was an agreement between the employers and the Transport and General Workers Union and under that agreement the employers had the right to de-recognise a shop . .

Cited by:

Cited – Buckwell v Ashfield District Council EAT 14-Mar-2002
The appellant had been a housing officer employed by the respondent and was an official of his Union. He attended (while off work through sickness) a meeting of local tenants opposed to the Council’s policies. He was suspended pending a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.80443

Ely v YKK Fasteners (UK) Ltd: CA 15 Jul 1993

Belief that an employee had resigned was sufficient to justify dismissal. The expression of a wish to resign is capable of being ‘some other substantial reason for dismissal’.
If an employer mistakenly does not know of a valid reason for a dismissal but in fact such a reason exists then the fact that the employer mistakenly thought, for example, that there was a resignation will not prevent there being a fair reason even though he did not appreciate that there was one at the time.

Citations:

Times 15-Jul-1993, Independent 23-Jul-1993, [1994] 1 ICR 164

Statutes:

Employment Protection (Consolidation) Act 1978 57(1)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – Cortest Ltd v O’Toole EAT 7-Nov-2007
EAT Unfair dismissal – Constructive dismissal – Dismissal/ambiguous resignation – Reason for dismissal including substantial other reason – Automatically unfair reasons
Dismissal or resignation. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.80304

Divine-Borley v Brent London Borough Council: CA 20 May 1998

The Employment Appeal Tribunal had been wrong to allow an employee to add a claim for damages for racial discrimination, where the issues were those already decided at the tribunal. It was important to bring all claims together.

Citations:

Times 20-May-1998, Gazette 03-Jun-1998, Gazette 30-Sep-1998, (1998) IRLR 525

Jurisdiction:

England and Wales

Employment, Employment, Discrimination

Updated: 10 May 2022; Ref: scu.80068

Care First Partnership Ltd v Roffey and Others: CA 22 Nov 2000

An employment tribunal had no power to dismiss a claim as without a reasonable prospect of success before it was begun to be heard. The power to regulate its own hearings did not include such a power, and the power to dismiss a claim as frivolous or vexatious, or for failure to comply with directions applied different standards, and gave differing protections. At the ‘no reasonable prospect of success’ level, the tribunal had powers to require a deposit and to give warnings as to liability for costs, but no more. The case management powers were procedural and gave no strike out jurisdiction.
Aldous LJ said: ‘The jurisdiction of the tribunal is governed by the Rules. They, when read, indicate that a strike-out can only happen at the preliminary stage or during the hearing of the case under rule 13(2) which entitles the tribunal to strike out any application on the grounds that it is scandalous, frivolous or vexatious. The standard set by that rule is that which was applied in Order 18, rule 19 of the Rules of the Supreme Court, namely that the application was bound to fail. The lesser standard of proof which is sought to be prayed in aid in this case [no reasonable prospect of success] is contrary to the expressed intention of the Rules. In my view, it would be odd to strike out a claim before completion of the applicants’ evidence because it appeared to have no reasonable chance of success, unless the Rules specifically so provided.’ and
‘To incorporate the powers given in Part 3.4 of the Civil Procedure Rules would, in my view, be contrary to the intention of the Employment Tribunal Rules. They were brought into existence in 1993, before the CPR was conceived. They set out a system for removing hopeless cases. Prior to the hearing the rules enable the tribunal to require a deposit and give a warning as to costs if a case has no reasonable prospect of success. At any time the case can be struck out if it is scandalous, frivolous or vexatious. By the time of the hearing, witness statements may have been exchanged, but the nature of a case does not change during the time immediately before the hearing to when it actually starts. If the tribunal had no power to strike out a case prior to the hearing because it had no reasonable prospect of success, absent express provision, it would appear to me to be contrary to the intention of the Rules that such a power should exist at the beginning of the hearing before evidence has been heard.’
Sir Christopher Slade said: ‘I would, for my part, accept that such jurisdiction may indeed be desirable in cases where the application is as a matter of law on any footing bound to fail. But at least in many such cases any such application will, by its very nature, be `vexatious’ within rule 13(2)(d) of the 1993 Rules, so that in such cases the jurisdiction to strike out will be conferred by that rule. Rule 13(2)(d) has not been invoked by the appellant on this appeal for obvious reasons.’

Judges:

Aldous LJ, Sir Christopher Slade

Citations:

Times 22-Nov-2000, Gazette 23-Nov-2000, [2001] IRLR 85

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) Regulations 1996 (1996 No 1757) 4(7) 7 9(1) 9(2) 13(1) 13(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Balamoody v United Kingdom Central Council for Nursing CA 14-May-2001
The applicant sought leave to appeal against a decision disallowing his complaint at his claim for race discrimination being struck out as scandalous, frivolous or vexatious. He said that the Tribunal had dismissed his claim without giving him . .
Distinguished – Balamoody v Manchester Health Authority EAT 12-Nov-2001
The Tribunal heard a preliminary application in a claim for unlawful race discrimination. Earlier applications had been struck out. This second set of applications had been struck out as frivolous by the Tribunal on the basis that they were not new . .
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Lists of cited by and citing cases may be incomplete.

Administrative, Employment

Updated: 10 May 2022; Ref: scu.78890

Anyanwu and Another v South Bank Students’ Union and Another: CA 4 Nov 1999

A university was not acting in a racially discriminatory manner because of the acts of its student union in dismissing two workers after the university had itself expelled them as students. The term ‘knowingly aided’ in the Act was not to be read so widely. The expulsion by the applicants made the termination of employment almost inevitable, but it could not be said to be ‘aiding’ the dismissal. Even assuming the appellants’ account of the facts to be correct it could not be said that the university had knowingly aided the student union to dismiss the appellants
Laws LJ said: ‘The facts alleged by the [appellants] are vigorously contested, but must be taken as true for the purposes of this appeal, since the university’s argument amounts to an application to strike out the case against it. The question for this court, as it seems to me, is whether on those alleged facts the university can conceivably be said to have ‘knowingly aided’ the [appellants’] dismissal by the union. In expelling the [appellants] and barring them from the union premises, the university brought about a state of affairs in which the employment contracts were bound to be terminated. In my judgment it is a plain affront to the language of the Act of 1976 to suggest that in such circumstances the university ‘aided’ the dismissal of the [appellants]. The verb ‘aid’ (to which no special definition is ascribed by the statute) means ‘help’ or ‘assist’. Its use contemplates a state of affairs in which one party, being a free agent in the matter, sets out to do an act or achieve a result, and another party helps him to do it. The first party is the primary actor. The other is a secondary actor. The simplest example may be found in the criminal law. A breaks into a house in order to burgle it. B keeps watch outside or is ready to drive off the get-away car. Plainly B ‘aids’ A. But here, the university is the prime mover. It did not ‘aid’ (or ‘help’) the union to dismiss the [appellants]. It may well be said that it brought about their dismissal. But that is altogether a different thing.’
Butler-Sloss LJ said: ‘But, for my part, I am unable, in applying the natural meaning to the word ‘aids’, to attribute to it a meaning which distorts it. In ordinary language a person who aids another person is one who helps, supports or assists the prime mover to do the act. On the present facts the university took steps to expel the [appellants] for its own reasons, justified or unjustified. Those expulsions, carrying with them the prohibition against entering any part of the university buildings including the students’ union, cannot in ordinary language be said to be knowingly aiding the students’ union to dismiss the [appellants] within section 33(1). In this case the prime mover of the dismissal of the [appellants] was the students’ union but its acts were effectively dictated to it by the prior decision of the university to expel the [appellants]. It seems clear to me that the students’ union had no alternative but to dismiss the [appellants] after the university expelled them. In ordinary language can that conceivably be said to be knowingly aiding? I would answer ‘No’.’
Pill LJ said: ‘Even taking a narrow definition of the word ‘aids’, the acts complained of, suspension, expulsion and dismissal, and the alleged conduct of the university and the union which preceded each of them, are so entangled upon the facts alleged that it would not be appropriate to separate them at this stage. On any view, the dismissal is intimately connected with the suspension and expulsion. An environment of racial prejudice is alleged to have been ‘encouraged and allowed to thrive by the university and the union’ (Mr Anyanwu). The union are alleged to have been ‘conniving with the university to remove me’ (Mr Ebuzoeme). In further and better particulars given at the request of the university, Mr Anyanwu said that ‘in all cases the acts of racial discrimination were carried out collectively by the respondents’ (that is the university and the union).’

Judges:

Butler-Sloss and Laws LJJ, Pill LJ dissenting

Citations:

Gazette 10-Nov-1999, Times 04-Nov-1999, [2000] ICR 221

Statutes:

Race Relations Act 1976 33(1)

Jurisdiction:

England and Wales

Citing:

See Also – Regina v South Bank University ex parte Anyanwu Admn 27-Jun-1996
The university was concerned at the way it saw the students’ union being run, and imposed a constitution which resulted in the claimants being dismissed. The claimants sought judicial review of the imposition of the new constitution, but that was . .
Leave – Anyanwu and Another v South Bank Students’ Union South Bank University CA 19-Mar-1999
The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to . .
See Also – Anywanwu and Another v South Bank Students Union and others EAT 12-Sep-1997
. .

Cited by:

Appeal from – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 10 May 2022; Ref: scu.77829

Regina v London North Industrial Tribunal, ex parte Associated Newspapers Ltd: 1998

An Employment Tribunal considering applying the rule allowing a restriction on reporting a case, must have regard to the legislative purpose and also to the importance of the principles of freedom of the press and open justice.

Judges:

Keene J

Citations:

[1998] ICR 1212

Jurisdiction:

England and Wales

Cited by:

Cited – Tradition Securities and Futures Sa and Another v Times Newspapers Ltd and others EAT 10-Nov-2008
EAT PRACTICE AND PROCEDURE: Restricted reporting order
Restricted Reporting Order relating to allegations of sexual misconduct – Whether Tribunal entitled to vary order in order to permit naming of . .
Lists of cited by and citing cases may be incomplete.

Employment, Media

Updated: 10 May 2022; Ref: scu.278814

Fisher v York Trade Leco Ltd: 1979

Slynn J said: ‘It seems to us that where what is being relied upon by an employer or an employee is not a resignation or a dismissal but conduct which is said to be a fundamental breach of the contract and where the parties said to have been in breach, has not indicated that it considers the contract to be at an end, then the accounts of a fundamental breach, if such it be does not itself determine the contract. The contract is determined when the fundamental breach is accepted, it is the acceptance by the employee in the case of an alleged fundamental breach by the employer which constitutes the termination by the employee.’

Judges:

Slynn J

Citations:

[1979] IRLR 386

Jurisdiction:

England and Wales

Cited by:

Cited – Rasool and Others v Hepworth Pipe Co Ltd EAT 1980
240 employees had attended a mass meeting. The employers wrote to them saying that they had broken their contract by attending an unauthorised meeting during working hours and they had automatically terminated their employment. They claimed unfair . .
Cited – Alcan Extrusions v Yates and others EAT 5-Feb-1996
The employers appealed against a decision that it had constructively dismissed the respondents by substantially changing their employment terms.
Held: The tribunal approved the chairman’s statement that ‘the applicants’ former contracts of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.278578

Porcelli v Strathclyde Regional Council: EAT 1985

A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer.
Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: ‘It was argued on behalf of the applicant that the words ‘subjecting her to any other detriment’ were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded.’

Judges:

Lord McDonald

Citations:

[1986] ICR 564, [1986] SC 137, [1985] ICR 1977

Statutes:

Sex Discrimination Act 1975 1(1)(a) 6(2)b)

Cited by:

Cited – De Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Appeal from – Strathclyde Regional Council v Porcelli SCS 1986
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Scotland

Updated: 10 May 2022; Ref: scu.270155

Brace v Calder: 1895

The dissolution of the employing partnership brings a contract of employment to an end.
Rigby LJ said: ‘a contract to serve four employers cannot, without express language, be construed as being a contract to serve two of them . . the dissolution of the partnership operated as the dismissal of the plaintiff not authorised by law.’

Judges:

Rigby LJ

Citations:

[1895] 2 QB 253, 36 Digest 392, [1895] 72 LT 829

Cited by:

Cited – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .
Cited – Rose v Dodd CA 27-Jul-2005
The Law Society had intervened in the claimant’s employer’s solicitors practice. The claimant appealed refusal of an award of a redundancy payment.
Held: The intervention did not necessarily bring to an end the employer’s business, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.263206

Pascoe v Hallen and Medway: 1975

The applicant worked in a factory. She was told that if she did not resign she would be dismissed. She left but then claimed to have been dismissed.
Held: She had been dismissed.

Citations:

[1975] IRLR 116

Cited by:

Cited – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.268101

Young v Timmins: 1831

The servant had agreed not to work for anyone else bu the employer, but he might have been given no work and he received no remuneration for considerable periods.
Held: He had been deprived of a livelihood, and the agreement was in restraint of trade.

Citations:

(1831) C and J 331

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 10 May 2022; Ref: scu.259686

Petrofac Offshore Management Ltd v David Olley and 2 Others: EAT 21 Oct 2005

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

Judges:

The Honourable Lady Smith

Citations:

UKEATS/0031/05 and UKEATS/0032/0

Links:

EAT

Citing:

See Also – Olley and 2 Others v Petrofac Offshore Management Ltd EAT 21-Oct-2005
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.257660

Olley and 2 Others v Petrofac Offshore Management Ltd: EAT 21 Oct 2005

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

Judges:

The Honourable Lady Smith

Citations:

UKEATS/0032/05 and UKEATS/0031/0, UKEATS/0032/05 and UKEATS/0031/0

Links:

EAT

Cited by:

See Also – Petrofac Offshore Management Ltd v David Olley and 2 Others EAT 21-Oct-2005
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.257661

Chairman and Governors of Amwell School v C Dougherty: EAT 16 Jun 2006

EAT Human Rights – Admissibility of evidence. On an unfair dismissal claim, the Employment Tribunal made an order enabling the employee to adduce evidence from unauthorised recordings she had made of the employers’ disciplinary and appeal panel hearings, including the private deliberations of the panel members. An appeal against that order raised the issue as to whether there was any public policy justification for exclusion of the evidence or whether its exclusion could be otherwise be justified by reference to the Human Rights Act.

Judges:

Mr Recorder Luba QC

Citations:

UKEAT/0243/06

Links:

EAT

Employment

Updated: 10 May 2022; Ref: scu.257791

ADT Fire and Security Plc v Speyer: EAT 15 Sep 2006

EAT Unfair dismissal and Race Relations Act 1976
Unfair dismissal – Exclusions including worker/jurisdiction
Three cases were stayed pending the judgment of the House of Lords in Lawson v Serco [2006] ICR 250. The appeal in the British Council case was dismissed on withdrawal after the hearing and before the judgment. In ADT, the Employment Tribunal correctly held that the Claimant was employed by the Respondent, albeit that he had not had his contract of employment transferred to it by operation of TUPE. He had worked continuously abroad for seven and a half years. Now applying Serco, his case did not fit any of the categories and so the Tribunal did not have jurisdiction to hear his unfair dismissal claim.
In the NAAFI case, the Claimant’s right to claim unfair dismissal was conceded post-Serco. There was no dispute that under the old Disability Discrimination Act 1995, jurisdiction was excluded since he had worked in Germany for over 30 years. He could not bring a claim for dismissal or disability discrimination in the German labour court if the NATO Status of Forces Agreement 1949 which exclude such rights is to be given effect by German law. He could not bring a claim in Britain under the Framework Directive 2000/78/EC, relying on Mangold v Helm, because the date for transposition of the directive had not arrived and no measure was taken by the United Kingdom to frustrate its transposition. The Claimant’s Convention rights were not breached since he had no substantive right upon which to base a Convention right. The EAT declined to make a reference to the ECJ or to give permission for an appeal to the Court of Appeal so that the Claimant could seek a declaration of incompatibility under the Human Rights Act 1998.

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0126/06

Links:

EAT

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Employment

Updated: 10 May 2022; Ref: scu.257849